RONALD A. WHITE

ORDER

Before the court is the motion of the defendants to dismiss the amended complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) F.R.Cv.P. The court held a hearing regarding the motion on June 20, 2013 and now issues its ruling. "Rule 12(b)(1) motions generally take one of two forms: (1) a facial attack on the sufficiency of a complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002). The court construes the present motion as a facial attack. In reviewing a facial attack, the court presumes all of the allegations contained in the amended complaint to be true. Id. The court is not bound by conclusory allegations, unwarranted inferences, or legal conclusions. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.1994).

First, a brief summary of the litigation's substance is necessary. President Obama signed the Patient Protection and Affordable Care Act ("ACA" or "the Act") into law on March 23, 2010. The Act contains a minimum coverage provision (which has also been called the "individual mandate") at 26 U.S.C. §5000A. Generally, that provision imposes a "penalty" on any taxpayer who is an "applicable individual" and fails to obtain "minimum essential coverage." The Supreme Court has upheld that provision as a valid exercise of Congress's taxing power. See National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). The present lawsuit was stayed pending the Supreme Court decision. After the stay was lifted, plaintiff filed an amended complaint. The amended complaint retains a claim regarding the minimum coverage provision (Count I).

As pertinent to the remainder of plaintiff's claims, the Act provides: "Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange . . . for the State that facilitates the purchase of qualified health plans." 42 U.S.C. §18031(b)(1). Despite the use of the word "shall," a state may choose not to establish an exchange. See 42 U.S.C. §18041(b)-(c). Oklahoma is one of the states which has made such a decision. The Act provides that in such a circumstance, the federal government may establish an exchange within the "non-electing" state. See 42 U.S.C. §18041(c). The Act additionally provides premium assistance subsidies (in the form of tax credits) for individuals who purchase insurance through an exchange. In describing how to calculate the amount of the tax credit, the Act describes a "taxpayer . . . [who] is covered by a qualified health plan . . . that was enrolled in through [sic] an Exchange established by the State under section 1311 [i.e., 42 U.S.C. §18031] of the [ACA]." 26 U.S.C. §36B(c)(2)(A)(i) (emphasis added). In other words, under plaintiff's reading of the Act, the subsidy is only available for individuals who purchase insurance through an exchange established by a State.

The Internal Revenue Service ("IRS") has promulgated a rule which provides that subsidies shall be available to anyone "enrolled in one or more qualified health plans through an Exchange." 26 C.F.R. §1.36B-2(a)(1). Exchange is then defined to mean "a State Exchange, regional Exchange, subsidiary Exchange, and a Federally-facilitated Exchange."45 C.F.R. §155.20; 26 C.F.R. §1.36B-1(k) (emphasis added). Plaintiff claims, accordingly, that while the Act itself says that subsidies are available only to individuals who buy insurance through state-established exchanges, the IRS rule eliminates that statutory prerequisite.

Further, the Act contains an "employer mandate." This provision may require an "assessable payment" by an "applicable large employer" if that employer fails to provide affordable health care coverage to its full-time employees and their dependents. See 26 U.S.C. §4980H(a) - (b). Under plaintiff's reading, the availability of the premium assistance subsidy effectively triggers the "assessable payments" used by the Act to enforce the employer mandate. The payment is only triggered if at least one employee enrolls in a plan, offered through an Exchange, for which "an applicable premium tax credit . . . is allowed or paid." Id.

In Count I, plaintiff asks the court to declare that the minimum coverage provision exceeds the power of Congress to regulate interstate commerce and to enjoin the defendants from enforcing the mandate in a manner inconsistent with such a legal ruling.

In Count II, plaintiff challenges the IRS Rule as ultra vires. Plaintiff seeks a declaration that the term "Exchange" as used in the IRS Rule excludes any agency or entity other than one established by the State and that the term "Federally-facilitated Exchange" is excluded from the term "Exchange" as used in the IRS Rule. Plaintiff also seeks an injunction prohibiting the defendants from acting in a manner inconsistent with such a declaration.

In Count III, plaintiff challenges the IRS Rule as arbitrary and capricious under the Administrative Procedure Act. Plaintiff seeks both a declaration that the IRS Rule is invalid and an injunction against its enforcement.

In Count IV, plaintiff challenges the IRS Rule as unconstitutional as applied to employees of the State of Oklahoma. Plaintiff seeks a declaration that the IRS Rule as applied to an employee of the State of Oklahoma is unconstitutional and void.

In Count V, plaintiff presents what it describes as an "additional or alternative claim for relief" in the event the defendants argue that an exchange set up by the federal government in this circumstance qualifies as an exchange established by a State. Plaintiff seeks a declaration that such an interpretation violates the Tenth Amendment of the United States Constitution because it commandeers state governmental authority, and an injunction forbidding defendants from enforcing 42 U.S.C. §18041(c) in a manner inconsistent with such a declaration.

Defendants contend dismissal is appropriate because (1) Oklahoma lacks standing to sue and (2) the Anti-Injunction Act ("AIA") bars Oklahoma's attempt to restrain the assessment and collection of the employer mandate. The Supreme Court recently reiterated that standing "requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision." Hollingsworth v. Perry, 133 S.Ct. 2652, 2661 (2013). "In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. 'The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements.'" Id. (quoting Diamond v. Charles, 476 U.S. 54, 62 (1986)). "In light of this 'overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of [an] important dispute and to 'settle' it for the sake of convenience and efficiency." Id. (quoting Raines v. Byrd, 521 U.S. 811, 820 (1997)).

The burden to establish standing rests on the party invoking federal jurisdiction. See Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir.2012). The evidence needed to carry that burden depends on the stage of litigation. Essence, Inc. v. City of Federal Heights, 285 F.3d 1272, 1280 (10th Cir.2002). When evaluating a plaintiff's standing at the motion to dismiss stage, the court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir.2006). At this stage, the plaintiff's burden in establishing standing is lightened considerably. Petrella, 697 F.3d at 1292. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. Southern Utah Wilderness Allliance v. Palma., 707 F.3d 1143, 1152 (10th Cir.2013). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)(at motion to dismiss stage, plaintiff must allege sufficient facts to render claim plausible).

Moreover, states deserve "special solicitude" in standing analysis. Wyoming v. U.S. Dep't of Interior, 674 F.3d 1220, 1238 (10th Cir.2012)(citing Massachusetts v. E.P.A., 549 U.S. 497, 520 (2007)). The Tenth Circuit noted, however, "the lack of guidance on how lower courts are to apply the special solicitude doctrine to standing questions." Id. This court takes comfort from this statement; however, the Tenth Circuit also reiterated that special solicitude does not eliminate the obligation to establish a concrete injury. Id.

Whatever this special solicitude may encompass, the Supreme Court held in Massachusetts v. Mellon, 262 U.S. 447 (1923), that a state does not have parens patriae standing to challenge the constitutionality of federal regulation on behalf of their citizens. "[T]he naked contention that Congress has usurped the reserved powers of the several States by the mere enactment of a statute" does not suffice to establish a State's standing to challenge the law. Id. at 483. See also Wyoming v. U.S. Dept. of Interior, 674 F.3d 1220, 1232 (10th Cir.2012)(parens patriae not available when a state sues the federal government because the federal government is presumed to represent the citizens' interests.) For its part, the State of Oklahoma purports to disavow any reliance upon parens patriae standing, contending that it does not indirectly asserts its citizens' interests, but rather directly asserts its own sovereign interests. Actually, the amended complaint and briefing reflect a somewhat more complicated situation. At points, Oklahoma asserts sovereign interests (or State qua State interests). At other points, Oklahoma asserts an injury to itself as a large employer. These contentions for standing appear to have been somewhat conflated in the present case. The court seeks to separate them. In any event, the court will now address each claim of the amended complaint individually.

As stated, in Count I plaintiff asks the court to revisit the minimum coverage or individual mandate provision of the Act, 26 U.S.C. §5000A. The Supreme Court upheld that provision in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012) as a valid exercise of Congress's taxing power. The opinion also contains discussion of the provision's validity or lack thereof under the Commerce Clause. The observation has been made that these statements may be dicta or binding precedent. See United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir.2012). Plaintiff requests a declaratory judgment that, while the mandate is valid as an exercise of the taxing power, Article 2, section 37 of the Oklahoma Constitution remains valid as a protection against mandated purchases of health insurance.

The quoted provision of the Oklahoma Constitution is similar to the Virginia statute involved in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir.2011), cert. denied, 133 S.Ct. 59 (2012). In that case, the State of Virginia challenged the constitutionality of the individual mandate. Virginia sought standing on its own behalf, relying upon the Virginia Health Care Freedom Act ("VHCFA"). The state law was signed into law by the Governor of Virginia the day after President Obama had signed the ACA into law. Id. at 267. The VHCFA declared that no person could be forced to buy health insurance against his or her will. The Fourth Circuit concluded that the state lacked standing to challenge the individual mandate, because the state law did "not confer on Virginia a sovereign interest in challenging the individual mandate." Id. at 269.

The Fourth Circuit distinguished the Tenth Circuit decision in Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir.2008), in which a state was allowed to challenge a federal administrative decision that a state expungement statute would not have the intended effect under federal law. The Tenth Circuit stated that "[f]ederal regulatory action that preempts state law creates a sufficient injury-in-fact" and Wyoming's allegation was sufficient because the federal interpretation of the Wyoming law "interferes with Wyoming's ability to enforce its legal code." Id. at 1242. The Fourth Circuit stated that the Crank decision (and others where a state was found to possess sovereign standing) presented situations in which "the state statute at issue regulated behavior or provided for the administration of a state program." Cuccinelli, 656 F.3d at 269. The Fourth Circuit then concluded that, by contrast, the Virginia law "regulates nothing and provides for the administration of no state program. Instead, it simply purports to immunize Virginia citizens from federal law." Id. at 270.

If the Fourth Circuit and the Tenth Circuit decisions are in conflict, this court is bound to follow the Tenth Circuit. See United States v. Spedalieri, 910 F.2d 707, 709 n.2 (10th Cir.1990)("A district court must follow the precedent of this circuit, regardless of its views concerning the advantages of the precedent of our sister circuits"). This court concludes the Tenth Circuit decision in Crank is distinguishable. First, the Fourth Circuit decision is precisely on point to this case, while the Tenth Circuit decision is merely analogous. Next, in the Tenth Circuit decision, the federal statute dealt with firearm rights of someone convicted of a domestic violence misdemeanor offense, including a misdemeanor under state law. The federal statute excluded any misdemeanor conviction which had been expunged or set aside. Crank, 539 F.2d at 1239. The state statute adopted by Wyoming was an attempt to comply with federal law by establishing a procedure to expunge misdemeanor convictions "for the purposes of restoring any firearms rights lost." Id. at 1238. The federal agency informed the State, however, that the state statute did not in fact satisfy the definition for federal requirements. Therefore, Wyoming had standing to resolve the issue.

Here, Article 2, Section 37 of the Oklahoma Constitution indicates that it was "[a]dded by State Question No. 756, Legislative Referendum No. 356, adopted at election held on November 2, 2010." The effective date makes clear that the Oklahoma provision was adopted in response to the ACA. Similarly to the VHCFA before the Fourth Circuit, this provision of the Oklahoma Constitution "regulates nothing and provides for the administration of no state program. Instead, it simply purports to immunize [Oklahoma] citizens from federal law." Virginia, 656 F.3d at 270. As already noted, the Tenth Circuit did make the general statement that "[f]ederal regulatory action that preempts state law creates a sufficient injury-in-fact to satisfy this prong [of the standing analysis]". Crank, 539 F.3d at 1242. Under the facts before the Tenth Circuit, however, this court believes the statement as written constitutes dicta rather than a holding. The Tenth Circuit (and the two circuit court cases which it cites), however, was not addressing a situation in which a State passed a law in response to and contrary to a federal law with preemption being the unavoidable and inevitable result.

Moreover, as the court reads the pertinent provision of the Oklahoma Constitution, it declares an individual right for an Oklahoma resident not to be compelled to participate in certain conduct. Conceivably, a set of facts might develop in which an individual Oklahoma resident sought to challenge the individual mandate under the Commerce Clause and the mandate's interplay with the Oklahoma Constitution. In the case at bar, such a ruling would seem to amount to an advisory opinion, which is prohibited. See Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1138 (10th Cir.2009). Count I will be dismissed for lack of standing.

In Count II, plaintiff contends it is entitled to a declaration that the term "Exchange" in the IRS rule must exclude a "Federally-facilitated Exchange" and only apply to an agency or entity established by the State. In the heading and text of the pertinent section of its response to the pending motion, plaintiff appears to primarily assert standing qua State. The heading of the section states that plaintiff has standing "because the IRS Rule deprives Oklahoma of its authority under the Act to be the sole decision-maker regarding the availability of premium tax credits and other payments under the Act." (#53 at 6). Here, and at other points in the amended complaint and briefing, plaintiff's argument is similar to that made in a polemical law review article previously cited. After mentioning the Fourth Circuit decision, the article states:

Here, however, states could claim that the IRS rule directly affects state interests created by the PPACA. The health care law, as written, gives states a choice of whether to create an Exchange that complies with the Act's requirements in return for start-up funds, tax credits, subsidies, and tax penalties on employers and a greater number of individual residents. The IRS rule, however, eliminates the choice by providing for tax credits, subsidies and tax penalties without regard to whether a state creates its own Exchange. Insofar as this rule eliminates a choice that the statute reserved to the states, an objecting state should have standing to challenge the legality of the rule.

On the other hand, "[i]t is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)(citation omitted). See also Summers v. Earth Island Institute, 555 U.S. 488, 497 (2009) ("[T]he requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute."). To be clear, plaintiff is not arguing that either the ACA or the IRS Rule expressly confers standing or grants it a right to sue. The argument which is made, however, reflects another difficulty in "State qua State" standing in this case. As this court understands it, plaintiff is arguing that Congress has provided standing indirectly, by enacting a statute that creates a new legal interest, "the invasion of which will confer standing." See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41 n.22 (1976).

Such creation of new interests may be accomplished as to individuals, but it is unclear that it may be as to States. The legal interest asserted by the State of Oklahoma is state sovereignty under the Tenth Amendment. This is not a "new" legal interest, and a statute has no power to create it. To the extent plaintiff argues that the new interest was in the "choice" whether to create an Exchange, the court agrees with defendants that this is parens patriae standing by another name. The allegations in the amended complaint do not assert injury to the State's proprietary interests. The provision of federal tax credits to Oklahoma residents does not command Oklahoma officials to take action, or refrain from taking any action. All pertinent conduct takes place at the federal level.

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), plaintiff environmental organizations sued to enjoin a regulation rescinding a prior requirement that federal agencies consult the Secretary of the Interior before approving or funding projects in foreign nations that might jeopardize the existence of threatened or endangered species or harm their habitat there. The Endangered Species Act authorized the suit in a "citizen suit" provision. Id. at 571-72. Nevertheless, the Supreme Court held that "a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy." Id. at 573-574. In this court's reading, Lujan undercuts the argument for "State qua State" standing in the case at bar. That is to say, this court finds no injury-in-fact in a "choice" granted to a State by a federal statute which is then allegedly "taken away" by a federal regulation. If the choice only existed because it was granted by Congress, necessarily State sovereignty is not implicated under the Supremacy Clause. The court concludes Oklahoma has failed to establish standing qua State for purposes of Count II.

This does not end the analysis. Count II also alleges that the IRS will expand the circumstances under which the "assessable payment" (§4980H) may be imposed against certain employers, with the result that an employer may be required to make such a payment under circumstances not provided for by the Act itself. (Amended Complaint, ¶51). Additionally, scattered throughout the amended complaint are references to such possible employer payments and compliance costs. See, e.g., ¶10 ("the payment of the subsidy for even one employee triggers costly obligations on the part of the employer . . .); ¶11 ("employers will be subjected to liabilities and obligations under circumstances not authorized by Congress . . .); ¶14 ("the State in its capacity as a large employer that would presumably be subject to the Act's 'employer mandate' and the accompanying possibility of end-of-the-year tax assessments by the IRS"); ¶33 ("Applicable Large Employers will be forced to take actions and incur expenses well in advance of January 1, 2014, to prepare for avoiding and/or minimizing exposure to Section 4980H Assessable Payments that Defendants will assert are triggered by such Advance Payments"); ¶37 ("The Final Rule already has had and will continue to have an adverse effect on employers within the State of Oklahoma").

The distinction between the employer mandate and anticipatory compliance costs for purposes of standing analysis was addressed in Liberty University, Inc. v. Lew, 2013 WL 3470532 (4th Cir.2013). In that case, plaintiff sought to challenge the employer mandate on multiple grounds. As in this case, defendants argued that plaintiff lacked standing because it was speculative whether plaintiff (in its capacity as large employer) would ever be subject to the §4980H penalty. The appellate court said this "argument may well be correct - - as far as it goes." Id. at *6 (footnote omitted). The court then noted plaintiff's allegations that the employer mandate and regulations would increase the cost of care. The court found these allegations plausible. "Therefore, "[e]ven if the coverage Liberty currently provides ultimately proves sufficient, it may well incur additional costs because of the administrative burden of assuring compliance with the employer mandate, or due to an increase in the cost of care." Id. at *7. The Fourth Circuit then cited other decisions holding that increased compliance costs or administrative burden constituted injury in fact for standing purposes. Finally, the Fourth Circuit concluded that (in distinction to the employer mandate penalty) "Liberty's injury is imminent even though the employer mandate will not go into effect until January 1, 2015, as Liberty must take measures to ensure compliance in advance of that date." Id.

The allegations in Oklahoma's amended complaint are not nearly as specific as the allegations made in Liberty University. Most of them appear to be directed toward establishing "State qua State" standing. Oklahoma does not allege an increase in the cost of providing health insurance coverage. There are, however, various references to the necessity to "obligations", "actions", and "expenses." At the motion to dismiss stage, under the extremely lenient pleading standards which are applicable, the court finds that plaintiff has made sufficient allegations demonstrating standing to challenge the IRS Rule in its own capacity as an employer. Defendants of course may still raise standing as to Count II in a motion for summary judgment if they so choose.

In Count III, plaintiff seeks to challenge the IRS Rule pursuant to the Administrative Procedure Act ("APA"). As evidently pertinent here under the amended complaint's allegations, a court may set aside a regulation that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, pursuant to 5 U.S.C. §706(2)(A), or which is found to be in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U.S.C. §706(2)(C).

The court finds that the same analysis set forth above as to Count II applies to Count III was well. Many of the allegations specific to this Count appear directed toward "State qua State" standing. As to that type of standing, the court finds it has not been plausibly alleged by the amended complaint in this case. By contrast, under the standard applicable at this stage of the litigation, the court finds plaintiff has made sufficient plausible allegations supporting standing for the State of Oklahoma in its capacity as a large employer. Count III will not be dismissed, but again the issue of standing may be revisited at a later stage of the litigation.

In Count IV, plaintiff seeks a declaration that the IRS rule is unconstitutional as applied to employees of the State of Oklahoma. Plaintiff acknowledges Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985), which held that state employees may be forced to follow the federal Fair Labor Standards Act's wage and hour rules. Plaintiff contends that subsequent Supreme Court decisions have called Garcia into question. "Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 89 (1998)(emphasis added). Garcia has not been overruled. Therefore, it is binding on this court. Count IV will be dismissed.

Plaintiff describes Count V as "an alternative claim for relief in the event that Defendants assert that an Exchange created by HHS is a form of 'Exchange established by a state under Section 1311' [as that phrase is used in the Act]." (#53 at 16)(emphasis added). Defendants have given no indication of making such an argument, but the merits have not yet been reached. The issue raised by the present motion is lack of standing. If defendants presented the pertinent argument, arguably "State qua State" standing would exist. Count V, although hypothetical and contingent as it stands, will not be dismissed at this time.

As an additional ground for dismissal of Counts II -V, defendants invoke the Anti-Injunction Act ("AIA"). The AIA prohibits "any person" from maintaining a suit "for the purpose of restraining the assessment or collection of any tax." 26 U.S.C. §7421(a). Generally, the AIA establishes a "pay first, litigate later" regime. See Lonsdale v. United States, 919 F.2d 1440, 1443 (10th Cir.1990). Both parties have addressed 26 U.S.C. §4980H. As already stated, that section imposes an "assessable penalty" on large employers that fail to offer their employees minimum essential coverage. 26 U.S.C. §4980H(a). In two places, Congress uses the word "tax" to refer to this penalty. See §§4980H(b)(2) and (c)(7). Such characterization is not consistent, however.

After the hearing in this case, the Fourth Circuit issued its decision in Liberty University, previously mentioned in the context of standing. The Fourth Circuit also addressed the application of the AIA to a challenge of the employer mandate. The appellate court concluded "the statutory text suggests that Congress did not intend the exaction to be treated as a tax for purposes of the AIA." Liberty University, 2013 WL 3470532 at *5. Accordingly, "we hold that the employer mandate exaction, like the individual mandate exaction, does not constitute a tax for purposes of the AIA. Therefore, the AIA does not bar this suit." Id. at *6. This court adopts the analysis of the Fourth Circuit.

Also after the hearing in this case, the Tenth Circuit issued its decision in Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir.2013). That case involved a challenge to the "contraception mandate," a requirement growing out of regulations promulgated under a different section of the ACA. The en banc court held unanimously that the AIA did not apply. Specifically, the Tenth Circuit held that the exaction imposed for failure to comply with the contraception mandate was a "regulatory tax," and just one of many collateral consequences of the failure to comply. Id. at *7.

The appellate court concluded that "the AIA does not apply to 'the exaction of a purely regulatory tax" Id. at *8 (citation omitted). The Tenth Circuit characterized the case as follows: "Hobby Lobby and Mardel are not seeking to enjoin the collection of taxes or the execution of any IRS regulation; they are seeking to enjoin the enforcement, by whatever method, of one HHS regulation that they claim violates their [Religious Freedom Restoration Act] rights" Id. at *7 (emphasis added). Therefore, "just as the AIA does not apply to any suit against the individual mandate, which is enforced by the IRS, so too does the AIA not apply to any suit against the contraceptive-coverage requirement, even though it also may be enforced by the IRS." Id. at *8 (citation omitted).

Plaintiff draws from Hobby Lobby that "challenges to regulatory requirements are not barred by the Anti-Injunction Act, even when a collateral consequence of enjoining the enforcement of the regulation is that the federal government will be prevented from collecting a tax". (#64 at 4). Defendants contend that the Tenth Circuit's reasoning does not apply to the challenge before this court because §4980H does not impose any "collateral consequences" apart from a large employer's obligation to pay what the defendants insist is a tax. This court has found that the employer mandate is not a tax for AIA purposes and therefore need not resolve this issue. The parties in the case at bar do not appear to dispute that the tax credit eligibility provided by the IRS Rule serves as a "trigger" for the enforcement of the employer mandate. When the AIA applies (which in this case the court finds it does not), an argument that a plaintiff is merely challenging the regulation and not the penalty has been unsuccessful. See Alexander v. "Americans United" Inc., 416 U.S. 752, 760-61 (1974). Inasmuch as the government agreed that the AIA was inapplicable in Hobby Lobby, this court would ask for further briefing on this point if it were dispositive.

In the interest of thoroughness, the court wishes to address briefly the other arguments presented. In another branch of its argument, plaintiff argues that the AIA is not "truly jurisdictional," but is better viewed as a non-jurisdictional "claims-processing" rule. Plaintiff notes that in the Hobby Lobby decision, three judges of the Tenth Circuit examined Supreme Court precedent and appeared to find persuasive the argument plaintiff presents here, concluding, "[i]n the end, the AIA shows none of the hallmarks of a jurisdictional restriction, and has many features that collectively indicate otherwise." Hobby Lobby, 2013 WL 3216103 at *37 (Gorsuch, J., concurring). This statement, however, appears in a concurring opinion in an en banc decision and does not represent the holding of the court. Even within the discussion, Judge Gorsuch notes that both the Supreme Court and the Tenth Circuit have on other occasions referred to the statute as jurisdictional. Id. at *36 (citing Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 5 (1962) and Sterling Consulting Corp. v. United States, 245 F.3d 1161, 1167 (2001)). Both the Supreme Court and the Tenth Circuit are, of course, binding on this court. Therefore, this court must hold that the AIA, where it applies, is jurisdictional.

Plaintiff also contends (in a footnote) that States are not "persons" within the meaning of the AIA. There is "no hard and fast rule" governing whether a State qualifies as a "person" for purposes of federal law. United States v. Cooper, 312 U.S. 600, 604-605 (1941). The Supreme Court has interpreted the word "person" in other provisions of the Internal Revenue Code to include States. See Sims v. United States, 359 U.S. 108 (1959); Ohio v. Helvering, 292 U.S. 360 (1934). On the other hand, there is a "presumption that 'person' does not include the sovereign." Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 780 (2000). This court is persuaded that while "comity and respect for our federal system demand that something more than mere use of the word 'person' demonstrate the federal intent to authorize unconsented private suit against" States, Id. at 780-781 n.9 (emphasis added), the AIA does not permit States to affirmatively sue the federal government outside statutory bounds. The court rejects plaintiff's argument.

Plaintiff also suggests (even more faintly, within the same footnote) that this case falls within the language of South Carolina v. Regan, 465 U.S. 367, 378 (1984) that the AIA does not apply to aggrieved parties who have no alternative forum to litigate claims. In Cuccinelli, the Fourth Circuit stated without elaboration that "Virginia may well be exempt from the AIA bar." 656 F.3d at 267 n.1 (citing Regan). In Regan, the State sought to challenge a federal statute which terminated a federal tax exemption for bearer bonds. South Carolina argued that the federal statute interfered with its sovereign power to raise money by issuing tax-exempt bonds, in violation of the Tenth Amendment. The reason the Supreme Court found South Carolina had no alternative forum to litigate was that the tax fell on bondholders rather than the State. Regan, 465 U.S. at 379-80. The Court did not suggest (and plaintiff here has not argued) that a State may not bring a tax refund action. Regan was a "unique suit." Hibbs v. Winn, 542 U.S. 88, 104 n.6 (2004). See also Judicial Watch, Inc. v. Rossotti, 317 F.3d 401, 408 n.3 (4th Cir.), cert. denied, 540 U.S. 825 (2003)("Because of the strong policy animating the Anti-Injunction Act, and the sympathetic, almost unique, facts in Regan, courts have construed the Regan exception very narrowly."). This declines to adopt plaintiff's suggestion in this regard.

It is the order of the court that the motion of the defendants to dismiss (#41) is hereby granted in part and denied in part. Count I and Count IV are dismissed. As to Count II, Count III, and Count V, the motion is denied.

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HONORABLE RONALD A. WHITE

UNITED STATES DISTRICT JUDGE

EASTERN DISTRICT OF OKLAHOMA