Commentary Law and Policy

Like All the DOJ’s Actions, the Latest Birth Control Benefit Lawsuit Settlement Looks Shady

Jessica Mason Pieklo

The Department of Justice appears to have voluntarily paid back the attorneys representing the challengers for suing the Obama administration and trying to further undermine the Affordable Care Act in the courts.

Dozens of religiously affiliated nonprofits challenging the Affordable Care Act’s birth control benefit still have cases lingering in federal appellate courts. The U.S. Department of Justice (DOJ) last week announced it had settled with more than 70 of them. But like many of the DOJ’s actions since President Donald Trump took office, this settlement deserves a closer look.

The parties affected by the settlement immediately applauded the likely end of their years-long litigation challenging the contraceptive mandate and its accommodation for religiously affiliated nonprofits.

The announced settlement came just a week after the administration announced its interim final rule expanding the Obamacare exemption to include nearly every business from having to comply with the contraceptive mandate. Interim final rules are typically reserved for emergencies as a way to speed up the notice-and-comment period the federal government is supposed to follow when issuing rules like the expanded exemption. In the case of the birth control benefit, the administration falsely claimed the emergency was that contraception was dangerous and questioned the government’s role in facilitating access to it.

Attorneys for the challengers see the interim final rule and the settlement working together.

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“The broadened exemption was a welcome development,” said Quincy Masteller, Thomas Aquinas College’s general counsel, in a statement. “This settlement, however, affords even greater protection to our religious freedom because it will be binding on all future administrations.”

The actual terms of the settlement agreement are confidential, so we’ll have to take the objectors at their word: that it is the administration’s first successful attempt to provide legal precedent for its about-face in arguments in the litigation. This would also be supported by the Trump administration’s assertion that the government barely has an interest at all in making sure employer-provided health insurance plans do not discriminate by refusing to cover contraceptives at no extra cost.

One thing we do know is that one of the attorneys of record involved in the litigation, and who appears on the court filings dismissing the case, is none other than Eric Dreiband. He’s the man President Trump tapped to head the Office of Civil Rights under Attorney General Jeff Sessions, though his nomination is still pending. Meanwhile, he’s an attorney at the private law firm Jones Day—who worked on the legal challenges to the birth control benefit, among other controversial cases. His involvement in that litigation was just one reason civil rights advocates strongly oppose his nomination.

Dreiband’s role in the settlement negotiations or final agreement is unclear—again, because the actual agreement is confidential. But the fact he’s a named attorney on court documents dismissing the case while his nomination is pending raises questions. For starters, was Dreiband negotiating from “both sides of the table” by representing challengers like Thomas Aquinas and working more closely with the Department of Justice than opposing counsel should with to get a deal done?

We will also have to take at Thomas Aquinas’ word that the DOJ has agreed to pay at least a portion of the attorney’s fees for the firms representing those challengers. Presuming this is true—and there’s no reason to believe Thomas Aquinas is wrong on this point, aside from potential public relations spin, I guess—this is an outrageous concession by the agency.
Let me start by saying that negotiating the payment of attorneys’ fees is pretty standard practice in settlement agreements. So the fact that such an agreement was made to pay them in this case is not unusual. Still, the challengers are not as a matter of law entitled to have their legal fees paid. Only a court can order that kind of legal relief. The parties can agree to to pay the fees, sure, but fee payment is not a given.

That means the DOJ voluntarily paid back the attorneys representing the challengers for suing the Obama administration and trying to further undermine the Affordable Care Act in the courts.

Thomas Aquinas also says that Jones Day represented the challengers pro bono. So presumably, Jones Day attorneys would not be getting paid for this work. But without the actual terms public, who knows if Jones Day is the only named firm or organization getting paid by the DOJ, or if it contracted out to other firms, as is common.

So where are those attorneys’ fees going?

It’s hard to say, but I kind of doubt the fees will amount to a minimal payment by the Trump administration. The entire challenge to the birth control benefit has been one big grift by religious conservatives. So why would this attorneys’ fees provision be any different?

There’s more to this settlement mess. A stipulation of dismissal is the official court document that ends a case by alerting the court that the parties have agreed to end their legal fight. One was filed here and notes the parties agreed to the settlement. It also notes the parties to the case will each pay their own costs. It says nothing about fees.

This is an important distinction. Litigation costs include such things as court filings fees, which are usually a couple hundred dollars from postage for documents and those kinds of things. Litigation fees, on the other hand, go beyond the hourly fees of attorneys. They also include the fees expert witnesses charge for their involvement in a case, which alone can range in the thousands of dollars, for example. And the settlement covers at least 70 plaintiffs, so defending on the scope of that fee provision, that is a lot of money the DOJ just threw at the attorneys and supporters representing the challengers.

The fees provision smells especially bad given the fact that another Jones Day attorney who had represented the challengers, Noel Francisco, is the current solicitor general—who would, by virtue of his appointment, defend against the legal challenges launched in response to the Trump administration’s birth control actions.

There may be nothing legally that can be done about the settlement agreement and the idea that the Trump administration is effectively paying religious conservatives back for suing the Obama administration. But the very fact that Dreiband’s name is still buzzing around these cases while his nomination is pending, and that he may have even had a role in the settlement, is a problem. And it proves those who are willing to serve with Trump don’t seem to care about breaking political, legal, or ethical norms.

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