This week, the government filed an emergency motion in the New York Archdiocese’s lawsuit against the contraceptive coverage mandate, requesting that the court halt proceedings and dismiss the case. The emergency is that the government is hemorrhaging money defending a regulation it will never enforce against the Archdiocese.
Roman Catholic Archdiocese of NY v. Sebelius is the only lawsuit out of the 23 brought by religiously affiliated organizations not to be dismissed at the district court level for lack of standing or ripeness. The cases have been dismissed because religiously affiliated non-profits are currently completely exempt from the contraceptive coverage requirement. They enjoy a one-year safe harbor period provided for the religious accommodation to be finalized. If you haven’t been injured, you can’t sue.
The government swore up and down from the day the case was filed that the rule in its current form would never be enforced against the Archdiocese and its co-plaintiffs and that a new rule with a new religious accommodation was on the way. As promised, the Obama administration released a new proposed rule, is now reviewing comments from the public on it, and will release the final rule by August. However, in the New York Archdiocese case, Judge Brian M. Cogan found that the administration’s assurances were not enough and that the impending threat of the rule was injury enough for the plaintiffs to proceed.
The Archdiocese et al. proceeded to serve the government with requests for every document under the sun. “Discovery” is the process in which litigating parties get evidence by requesting relevant documents from each other. To respond to a document request, a party has to review documents to determine whether they are responsive to the request and make a log of documents that are responsive but won’t be turned over because they are protected by attorney-client or another privilege. Computer searches only get you so far; a human attorney or paralegal has to determine if a document is responsive or privileged.
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Plaintiffs in these cases being 1 for 23, the Archdiocese may have sought to make the most of its unique situation. It made discovery requests the government calls “enormously burdensome and irrelevant.” The Archdiocese also noticed a deposition of Health and Human Services (HHS) Secretary Kathleen Sebelius. Lawsuits are brought over regulations all the time—it is pretty audacious to demand a cabinet member show up in person for yours. That was indeed too far, and Judge Cogan granted Sebelius a protective order.
The plaintiffs didn’t stop there. The Archdiocese subpoenaed the Executive Office of the President (EOP), even though it isn’t a party to the lawsuit, many of the requested documents are protected by various privileges, and you must have an extra good reason to get documents from the president. Also, the EOP being in D.C., the subpoena was issued in a district that has thrown out three of these 23 lawsuits for lack of jurisdiction.
The Archdiocese later withdrew the subpoena. We don’t know why. Perhaps it realized it was an unreasonable request. This did not happen, alas, until after our tax dollars were put to work on a very lengthy motion to quash the subpoena. But whatever that cost, it pales in comparison to the expenditures of various agencies on the New York document requests; in the emergency motion, the government estimates completing the requested document production would take eight years and cost over $10 million.
We should take that estimate with a grain of salt, of course, but the government has sought to back it up. Attached to the emergency motion are declarations from officials of various offices and agencies as to what they have spent so far on this one case and what they estimate it will cost to finish. Two-hundred HHS employees have spent have spent over 2,000 hours and located over 7.6 million pages of potentially responsive documents so far. That has cost over $177,000. Those documents haven’t been reviewed by HHS or their Department of Justice counsel yet. The Internal Revenue Service has spent over a quarter of a million dollars.
The lawyers, paralegals, and IT professionals needed to complete discovery are expensive—even those of the lower-paid government variety. Offices that don’t have enough staff for this have hired contract lawyers, but they can’t afford to do that anymore because of the sequester. Lest you think it’s not a big deal to have government lawyers tied up or that the effect is minimal in the scope of things, consider one example contained in the declaration from the Department of Labor (DOL). The DOL’s Plan Benefits Security Division investigates and litigates cases of fraud or mismanagement in employee benefits. The division, which recovered $1.38 billion for U.S. workers in 2011, argues that the impact on the public interest of putting its attorneys on document review will be far greater than the financial loss.
The Archdiocese, which employs 10,000 people in programs receiving many millions of dollars in government grants each year, will never have to provide health plans with contraceptive coverage under the rule as proposed. Despite this, it is waging a legal battle that is imposing significant costs on the taxpayers who fund its work. And this is only one lawsuit. With the additional cases brought by secular for-profit corporations, over 60 lawsuits have been filed in this scorched earth litigation campaign—which we have to pay to defend.
On the same day the emergency motion was filed, Judge Cogan granted it in part, staying all discovery and proceedings until the contraceptive coverage rule is final. So the government lawyers can get back to other business for the moment. But once the rule is final, I expect we will see that some if not all of those 22 dismissed cases (the ones that haven’t already been appealed) will be refiled.
Back in February, with the sequester looming, the U.S. Conference of Catholic Bishops, which, like the Archdiocese of New York, is led by Cardinal Timothy Dolan, signed a statement by religious leaders urging legislators to protect the interests of the poor. The Bishops’ litigiousness does not reflect the same awareness of our limited resources nor concern for those who will be hurt most by the sequester. Instead, the Archdiocese seeks to deprive its employees of affordable contraception—provided by an outside company—that will enable employees to limit their families to the size they want and can support, using up resources that are needed elsewhere in a time of economic distress.