FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA; STATE OF 

DELAWARE; COMMONWEALTH OF 

VIRGINIA; STATE OF MARYLAND; 

STATE OF NEW YORK, 

Plaintiffs-Appellees, 

 v. 

ALEX M. AZAR II, Secretary of the United 

States Department of Health and Human 

Services; U.S. DEPARTMENT OF 

HEALTH & HUMAN SERVICES; R. 

ALEXANDER ACOSTA, in his official 

capacity as Secretary of the U.S. Department 

of Labor; U.S. DEPARTMENT OF 

LABOR; STEVEN TERNER MNUCHIN, 

in his official capacity as Secretary of the 

U.S. Department of the Treasury; U.S. 

DEPARTMENT OF THE TREASURY, 

Defendants, 

and 

THE LITTLE SISTERS OF THE POOR 

JEANNE JUGAN RESIDENCE, 

Intervenor-DefendantAppellant.

No. 18-15144 

D.C. No. 4:17-cv-05783-HSG 

OPINION

STATE OF CALIFORNIA; STATE OF No. 18-15166 

FILED

DEC 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

DELAWARE; COMMONWEALTH OF 

VIRGINIA; STATE OF MARYLAND; 

STATE OF NEW YORK, 

Plaintiffs-Appellees, 

 v. 

ALEX M. AZAR II, Secretary of the United 

States Department of Health and Human 

Services; U.S. DEPARTMENT OF 

HEALTH & HUMAN SERVICES; R. 

ALEXANDER ACOSTA, in his official 

capacity as Secretary of the U.S. Department 

of Labor; U.S. DEPARTMENT OF 

LABOR; STEVEN TERNER MNUCHIN, 

in his official capacity as Secretary of the 

U.S. Department of the Treasury; U.S. 

DEPARTMENT OF THE TREASURY, 

Defendants, 

and 

MARCH FOR LIFE EDUCATION AND 

DEFENSE FUND, 

Intervenor-DefendantAppellant.

D.C. No. 4:17-cv-05783-HSG 

STATE OF CALIFORNIA; STATE OF 

DELAWARE; COMMONWEALTH OF 

VIRGINIA; STATE OF MARYLAND; 

STATE OF NEW YORK, 

Plaintiffs-Appellees, 

 v. 

No. 18-15255 

D.C. No. 4:17-cv-05783-HSG 
3 

ALEX M. AZAR II, Secretary of the United 

States Department of Health and Human 

Services; U.S. DEPARTMENT OF 

HEALTH & HUMAN SERVICES; R. 

ALEXANDER ACOSTA, in his official 

capacity as Secretary of the U.S. Department 

of Labor; U.S. DEPARTMENT OF 

LABOR; STEVEN TERNER MNUCHIN, 

in his official capacity as Secretary of the 

U.S. Department of the Treasury; U.S. 

DEPARTMENT OF THE TREASURY, 

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted October 19, 2018

San Francisco, California

Before: J. Clifford Wallace, Andrew J. Kleinfeld, and Susan P. Graber, Circuit 

Judges.

Opinion by Judge Wallace

WALLACE, Circuit Judge:

The Affordable Care Act (ACA) and the regulations implementing it require

group health plans to cover contraceptive care without cost sharing. Federal 

agencies issued two interim final rules (IFRs) exempting employers with religious 

and moral objections from this requirement. Several states sued to enjoin the 

enforcement of the IFRs, and the district court issued a nationwide preliminary 
4 

injunction. We have jurisdiction under 28 U.S.C. § 1292, and we affirm in part, 

vacate in part, and remand.

I.

A.

To contextualize the issues raised on appeal, we briefly recount the history 

of the ACA’s contraceptive coverage requirement. The ACA provides that:

a group health plan and a health insurance issuer offering group or 

individual health insurance coverage shall, at a minimum provide 

coverage for and shall not impose any cost sharing requirements for . . . 

with respect to women, such additional preventive care and screenings 

. . . as provided for in comprehensive guidelines supported by the 

Health Resources and Services Administration [HRSA] . . . .

42 U.S.C. § 300gg–13(a)(4). HRSA established guidelines for women’s

preventive services that include any “[FDA] approved contraceptive methods, 

sterilization procedures, and patient education and counseling.” Group Health 

Plans and Health Insurance Issuers Relating to Coverage of Preventive Services 

Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725-01, 

8,725 (Feb. 15, 2012). The three agencies responsible for implementing the 

ACA—the Department of Health and Human Services, the Department of Labor, 

and the Department of the Treasury (collectively, agencies)—issued regulations 

requiring coverage of all preventive services contained in HRSA’s guidelines. See, 

e.g., 45 C.F.R. § 147.130(a)(1)(iv) (DHSS regulation).

The agencies also recognized that religious organizations may object to the 
5 

use of contraceptive care and offering health insurance that covers such care. For 

those organizations, the agencies provided two avenues. First, group health plans

of certain religious employers, such as churches, are categorically exempt from the 

contraceptive coverage requirement. Coverage of Certain Preventive Services 

Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,874 (July 2, 2013). 

Second, nonprofit “eligible organizations” that are not categorically exempt can

opt out of having to “contract, arrange, pay, or refer for contraceptive coverage.” 

Id. To be eligible, the organization must file a self-certification form stating (1) 

that it “opposes providing coverage for some or all of any contraceptive services 

required to be covered under [the regulation] on account of religious objections,” 

(2) that it “is organized and operates as a nonprofit entity,” and (3) that it “holds 

itself out as a religious organization.” Id. at 39,892. The organization sends a 

copy of the form to its insurance provider, which must then provide contraceptive 

coverage for the organization’s employees and cannot impose any charges related 

to the coverage. Id. at 39,876. The regulations refer to this second avenue as the 

“accommodation,” and it was designed to avoid imposing on organizations’ beliefs 

that paying for or facilitating coverage for contraceptive care violates their 

religion. Id. at 39,874.

The agencies subsequently amended the accommodation in response to 

several legal challenges. First, certain closely-held for-profit organizations became 
6 

eligible for the accommodation. Coverage of Certain Preventive Services Under 

the Affordable Care Act, 80 Fed. Reg. 41,318-01, 41,343 (July 14, 2015); see also 

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014). Second, 

instead of directly sending a copy of the self-certification form to the insurance 

provider, an eligible organization could simply notify the Department of Health 

and Human Services in writing, and the agencies then would inform the provider 

of its regulatory obligations. 80 Fed. Reg. at 41,323; see also Wheaton Coll. v. 

Burwell, 134 S. Ct. 2806, 2807 (2014). 

Various employers then challenged the amended accommodation as a 

violation of the Religious Freedom Restoration Act (RFRA). Zubik v. Burwell, 

136 S. Ct. 1557, 1559 (2016) (per curiam). The actions reached the Supreme 

Court, but, instead of deciding the merits of the claims, the Supreme Court vacated 

and remanded to afford the parties “an opportunity to arrive at an approach going 

forward that accommodates petitioners’ religious exercise while at the same time 

ensuring that women covered by petitioners’ health plans receive full and equal 

health coverage, including contraceptive coverage.” Id. (internal quotation marks 

and citation omitted). The agencies solicited comments on the accommodation in 

light of Zubik, but ultimately declined to make further changes to the 

accommodation. Dep’t of Labor, FAQS ABOUT AFFORDABLE CARE ACT 

IMPLEMENTATION PART 36, at 4, www.dol.gov/sites/default/files/ebsa/about-
7 

ebsa/our-activities/resource-center/faqs/aca-part-36.pdf.

B.

On May 4, 2017, the President issued an executive order directing the 

secretaries of the agencies to “consider issuing amended regulations, consistent 

with applicable law, to address conscience-based objections to” the ACA’s 

contraceptive coverage requirement. Promoting Free Speech and Religious 

Liberty, Exec. Order No. 13,798, 82 Fed. Reg. 21,675, 21,675 (May 4, 2017). On 

October 6, 2017, the agencies effectuated the two IFRs challenged here, without 

prior notice and comment. The religious exemption IFR expanded the categorical 

exemption to all entities “with sincerely held religious beliefs objecting to 

contraceptive or sterilization coverage” and made the accommodation optional for 

such entities. Religious Exemptions and Accommodations for Coverage of Certain 

Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792, 47,807–

08 (Oct. 13, 2017). The moral exemption IFR expanded the categorical exemption 

to “include additional entities and persons that object based on sincerely held 

moral convictions.” Moral Exemptions and Accommodations for Coverage of 

Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838,

47,849 (Oct. 13, 2017). It also “expand[ed] eligibility for the accommodation to 

include organizations with sincerely held moral convictions concerning 

contraceptive coverage” and made the accommodation optional for those entities. 
8 

Id.

California, Delaware, Maryland, New York, and Virginia sued the agencies 

and their secretaries in the Northern District of California. The states sought to 

enjoin the enforcement of the IFRs, alleging that they are invalid under the 

Administrative Procedure Act (APA), the Fifth Amendment equal protection 

component of the Due Process Clause, and the First Amendment Establishment 

Clause. The district court held that venue was proper and that the states had 

standing to challenge the IFRs. The district court then issued a nationwide 

preliminary injunction based on the states’ likelihood of success on their APA 

claim—that the IFRs were procedurally invalid for failing to follow notice and 

comment rulemaking. After issuing the injunction, the district court allowed Little

Sisters of the Poor, Jeanne Jugan Residence (Little Sisters) and March for Life 

Education and Defense Fund (March for Life) to intervene in the case. 

The agencies, Little Sisters, and March for Life appeal from the district 

court’s order on venue, standing, and nationwide preliminary injunction. 

II.

Venue is reviewed de novo. Immigrant Assistance Project of the L.A. Cty. 

Fed’n of Labor (AFL-CIO) v. INS, 306 F.3d 842, 868 (9th Cir. 2002). Standing is 

also reviewed de novo. Am.-Arab Anti-Discrimination Comm. v. Thornburgh, 970 

F.2d 501, 506 (9th Cir. 1991). Findings of fact used to support standing are 
9 

reviewed for clear error. Id.

A preliminary injunction is reviewed for abuse of discretion. Pimentel v. 

Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012). In reviewing the injunction, we

apply a two-part test. First, we “determine de novo whether the trial court 

identified the correct legal rule to apply to the relief requested.” Id. (quoting Cal. 

Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1104 (9th Cir. 2010). Second, 

we determine “if the district court’s application of the correct legal standard was 

(1) illogical, (2) implausible, or (3) without support in inferences that may be 

drawn from the facts in the record.” Id. (quoting Cal. Pharmacists, 596 F.3d at 

1104). The scope of the preliminary injunction, such as its nationwide effect, is

also reviewed for abuse of discretion. United States v. Schiff, 379 F.3d 621, 625 

(9th Cir. 2004).

III.

A.

We first address whether the appeal is moot. We have authority only to 

decide live controversies, and because mootness is a jurisdictional issue, we are 

obliged to raise it sua sponte. Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 

1129 (9th Cir. 2005) (en banc). We determine “questions of mootness in light of 

the present circumstances where injunctions are involved.” Mitchell v. Dupnik, 75 

F.3d 517, 528 (9th Cir. 1996). More specifically, the question before us is 
10 

“whether changes in circumstances that prevailed at the beginning of litigation 

have forestalled any occasion for meaningful relief.” Gator.com, 398 F.3d at 1129

(quoting West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n.4 (9th Cir.

2000)).

On November 15, 2018, the agencies published final versions of the 

religious and moral exemption IFRs. See Religious Exemptions and 

Accommodations for Coverage of Certain Preventive Services Under the 

Affordable Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018); Moral Exemptions and 

Accommodations for Coverage of Certain Preventive Services Under the 

Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018). The final rules are set

to supersede the IFRs and become effective on January 14, 2019. Id. The district 

court’s preliminary injunction rested solely on its conclusion that the IFRs are 

likely to be procedurally invalid under the APA. If the final rules become effective 

as planned on January 14, there will be no justiciable controversy regarding the 

procedural defects of IFRs that no longer exist. Indeed, we have previously 

dismissed a procedural challenge to an interim rule as moot after the rule expired. 

Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150 (9th Cir. 2002); see also

NRDC v. U.S. Nuclear Regulatory Comm’n, 680 F.2d 810, 814–15 (D.C. Cir. 

1982) (holding that procedural challenge to a regulation promulgated in violation 

of notice and comment requirements was rendered moot by re-promulgation of rule 
11 

with prior notice and comment); The Gulf of Me. Fishermen’s All. v. Daley, 292 

F.3d 84, 88 (1st Cir. 2002) (“[P]romulgation of new regulations and amendment of 

old regulations are among such intervening events as can moot a challenge to the 

regulation in its original form”). 

However, it is not yet January 14. We agree with the parties that mootness 

is not an issue until the final rules supersede the IFRs as expected on January 14, 

2019. The IFRs have not been superseded yet, and the procedural validity of the 

IFRs is a live controversy. We can still grant the parties effective relief. 

Mootness, if at all, will arise only after our decision has issued. Accordingly, we 

have jurisdiction to decide this appeal.

B.

We hold that venue is proper in the Northern District of California. A civil 

action against an officer of the United States in his or her official capacity may “be 

brought in any judicial district in which . . . the plaintiff resides if no real property 

is involved in the action.” 28 U.S.C. § 1391(e)(1). There is no real property 

involved here. The inquiry thus turns on which judicial district(s)—for a state with 

multiple districts like California—a state is considered to reside. This is a question 

of first impression in this circuit.

The agencies argue that California resides only in the Eastern District of 

California, where the state capital is located. The agencies cite 28 U.S.C. § 
12 

1391(c), which defines residency for “a natural person,” “an entity,” and “a 

defendant not resident in the United States.” Relevant here, “an entity with the 

capacity to sue and be sued . . . whether or not incorporated” is deemed to reside

“only in the judicial district in which it maintains its principal place of business.” 

Id. § 1391(c)(2). The agencies argue that California is an “entity” and that its 

capital Sacramento, located in the Eastern District of California, is the principal 

place of business for the state. 

The agencies’ argument is unconvincing. We must “interpret [the] statut[e] 

as a whole, giving effect to each word and making every effort not to interpret a 

provision in a manner that renders other provisions of the same statute inconsistent, 

meaningless or superfluous.” United States v. Thomsen, 830 F.3d 1049, 1057 (9th 

Cir. 2016) (citation omitted and alterations in original). The venue statute 

explicitly refers to the incorporation status of the “entity,” indicating that the term 

refers to some organization, not a state. See 28 U.S.C. § 1391(c)(2) (“an entity . . . 

whether or not incorporated”). The legislative history confirms this interpretation. 

According to the House Report underlying section 1391(c)(2), the section is a 

response to “division in authority as to the venue treatment of unincorporated 

associations” and that the section, as stated, would treat equally corporations and 

unincorporated associations like partnerships and labor unions. See H.R. Rep. No. 

112-10, at 21 (2011). These types of entities do not encompass sovereign states. 
13 

Finally, we highlight that the statute explicitly distinguishes between states and 

entities. 28 U.S.C. § 1391(d); see also Spencer Enters., Inc. v. United States., 345 

F.3d 683, 689 (9th Cir. 2003) (“[U]se of different words or terms within a statute 

demonstrates that Congress intended to convey a different meaning for those 

words”). The agencies therefore improperly assume, without support from the text 

or legislative history, that “entity” encompasses a state acting as a plaintiff.

Instead, we interpret the statute based on its plain language. A state is 

ubiquitous throughout its sovereign borders. The text of the statute therefore 

dictates that a state with multiple judicial districts “resides” in every district within 

its borders. See Alabama v. U.S. Army Corps of Eng’rs, 382 F. Supp. 2d 1301, 

1329 (N.D. Ala. 2005) (holding that, for purposes of 28 U.S.C. § 1391(e), 

“common sense dictates that a state resides throughout its sovereign borders”); see 

also Atlanta & F.R. Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1892) 

(discussing that “the state government . . . resides at every point within the 

boundaries of the state”). Any other interpretation limiting residency to a single 

district in the state would defy common sense. See Silvers v. Sony Pictures Entm’t, 

Inc., 402 F.3d 881, 900 (9th Cir. 2005) (“[C]ourts will not interpret a statute in a 

way that results in an absurd or unreasonable result”). Venue is thus proper in the 

Northern District of California.

C.
14 

We hold that the states have standing to sue. The states bear the burden of 

establishing “the irreducible constitutional minimum” of standing. Spokeo, Inc. v. 

Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks omitted). The 

states must have suffered an injury-in-fact that is fairly traceable to the challenged 

conduct and that is likely to be redressed by a favorable judicial decision. Id. The 

states must also demonstrate standing for each claim they seek to press. 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Standing as to one 

claim does not “suffice for all claims arising from the same ‘nucleus of operative 

fact.’” Id. 

The district court held that the states had standing to assert their procedural 

APA claim. To establish an injury-in-fact, a plaintiff challenging the violation of a 

procedural right must demonstrate (1) that he has a procedural right that, if 

exercised, could have protected his concrete interests, (2) that the procedures in 

question are designed to protect those concrete interests, and (3) that the 

challenged action’s threat to the plaintiff’s concrete interests is reasonably 

probable. Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 969–

70 (9th Cir. 2003); see also Spokeo, 136 S. Ct. at 1540 (describing the applicable 

standards for Article III standing in the context of statutory procedural rights). 

“[D]eprivation of a procedural right without some concrete interest that is affected 

by the deprivation . . . is insufficient to create Article III standing.” Summers v. 
15 

Earth Island Inst., 555 U.S. 488, 496 (2009). Relaxed standards apply to the 

traceability and redressability requirements. See NRDC v. Jewell, 749 F.3d 776, 

782–83 (9th Cir. 2014) (en banc) (“One who challenges the violation of ‘a 

procedural right to protect his concrete interests can assert that right without 

meeting all the normal standards’ for traceability and redressibility.” (quoting 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7 (1992))). The plaintiff need not 

prove that the substantive result would have been different had he received proper 

procedure; all that is necessary is to show that proper procedure could have done 

so. Citizens for Better Forestry, 341 F.3d at 976.

The states argue that the agencies issued the religious and moral exemption 

IFRs without notice and comment as required under the APA. They argue that the 

deprivation of this procedural right affected their economic interests. According to 

the states, the IFRs expanded the number of employers categorically exempt from 

the ACA’s contraceptive coverage requirement, and states will incur significant 

costs as a result of their residents’ reduced access to contraceptive care. The states 

specifically identify three ways in which the IFRs will economically harm them. 

First, women who lose coverage will seek contraceptive care through state-run 

programs or programs that the states are responsible for reimbursing. Second, 

women who do not qualify for or cannot afford such programs will be at risk for 

unintended pregnancies, which impose financial costs on the state. Third, reduced 
16 

access to contraceptive care will negatively affect women’s educational attainment 

and ability to participate in the labor force, affecting their contributions as 

taxpayers. Because we conclude that the record supports the first theory, we do 

not reach the alternative theories. See, e.g., Washington v. Trump, 847 F.3d 1151, 

1161 & n.5 (9th Cir. 2017) (per curiam) (holding that the plaintiffs had standing 

and declining to reach alternative theories of standing).

Appellants do not dispute that the states were denied notice and opportunity 

to comment on the IFRs prior to their effective date. They do not dispute that the 

notice and comment process could have protected and was designed to protect the 

states’ economic interests. Instead, the appellants dispute whether the threat to the 

states’ economic interests is reasonably probable. They argue that the allegations 

of economic injury are based on a speculative chain of events unlikely to occur. 

Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013) (rejecting standing 

where “respondents’ speculative chain of possibilities does not establish that injury 

. . . is certainly impending or is fairly traceable”). Appellants highlight how the 

states have failed to prove (1) that employers will take advantage of the expanded

religious and moral exemptions, (2) that women will lose contraceptive coverage 

as a result, and (3) that states will then incur economic costs. 

We hold that the states have standing to sue on their procedural APA claim. 

The states show, with reasonable probability, that the IFRs will first lead to women 
17 

losing employer-sponsored contraceptive coverage, which will then result in 

economic harm to the states. See Citizens for Better Forestry, 341 F.3d at 969. 

Just because a causal chain links the states to the harm does not foreclose standing. 

See Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (“A causal chain 

does not fail simply because it has several ‘links,’ provided those links are not 

hypothetical or tenuous” (internal quotation marks and citation omitted)). The 

states need not have already suffered economic harm. See City of Sausalito v. 

O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (requiring only that the protected

concrete interest be “threatened”). There is also no requirement that the economic 

harm be of a certain magnitude. See United States v. Students Challenging 

Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973)

(explaining that injuries of only a few dollars can establish standing). 

First, it is reasonably probable that women in the plaintiff states will lose 

some or all employer-sponsored contraceptive coverage due to the IFRs. The 

agencies’ own regulatory impact analysis (RIA)—which explains the anticipated 

costs, benefits, and effects of the IFRs—estimates that between 31,700 and 

120,000 women nationwide will lose some coverage. See 82 Fed. Reg. at 47,821, 

47,823. Importantly, when making these estimates, the agencies accounted for key

factors likely to skew the estimate, including that some objecting employers will 

continue to use the accommodation instead of the new, expanded exemptions. See 
18 

id. at 47,818 (estimating that 109 entities—of the 209 entities who have litigated 

the contraceptive care requirement and are currently using the accommodation 

process—would seek exemption); id. (“We expect the 122 nonprofit entities that 

specifically challenged the accommodation in court to use the expanded 

exemption”). The record also includes names of specific employers identified by 

the RIA as likely to use the expanded exemptions, including those operating in the 

plaintiff states like Hobby Lobby Stores, Inc. Appellants fault the states for failing 

to identify a specific woman likely to lose coverage. Such identification is not 

necessary to establish standing. For example, in Sierra Forest Legacy v. Sherman, 

California challenged a forest-management plan that changed the standards 

governing logging on a parcel of land. 646 F.3d 1161, 1171–72 (9th Cir. 2011). 

The state’s standing to do so was based on future injury resulting from any logging 

under the plan. Id. at 1178 (maj. op. of Fisher, J.). We emphasized that the state’s 

standing to challenge the plan “is not defeated by its not having submitted 

affidavits establishing approval of specific logging projects under” the plan 

because “there is no real possibility that the [relevant agency] will . . . decline to 

adopt” any project under the plan. Id. at 1179. The same is true here. Evidence 

supports that, with reasonable probability, some women residing in the plaintiff 

states will lose coverage due to the IFRs. 
19 

Second, it is reasonably probable that loss of coverage will inflict economic 

harm to the states. The RIA estimates the direct cost of filling the coverage loss as

$18.5 or $63.8 million per year, depending on the method of estimating. 82 Fed. 

Reg. at 47,821, 47,824. More importantly, the RIA identifies that state and local 

programs “provide free or subsidized contraceptives for low-income women” and 

concludes that this “existing inter-governmental structure for obtaining 

contraceptives significantly diminishes” the impact of the expanded exemptions. 

Id. at 47,803. The RIA itself thus assumed that state and local governments will 

bear additional economic costs.

The declarations submitted by the states further show that women losing 

coverage from their employers will turn to state-based programs or programs 

reimbursed by the state. For example, California offers the Family Planning, 

Access, Care, and Treatment (Family PACT) program to provide contraceptive 

care to those below 200% of the federal poverty level. As attested to by program 

administrators, loss of coverage due to the IFRs will result in increased enrollment

to Family PACT. Increased enrollment translates into, for example, the state 

reimbursing Planned Parenthood about $74.96 for each enrollee who receives 

contraceptive care. The states provided similar evidence for New York, Maryland, 

Delaware, and Virginia, which all have state-funded family planning programs. 
20 

Appellants dispute various factual findings underlying standing, but they do 

not explain how those findings are clearly erroneous. Appellants also argue that 

four of the plaintiff states—California, Delaware, Maryland, and New York—will 

not suffer harm because they have state laws that independently require certain 

employer-provided plans to cover contraceptive care. Those state laws do not 

apply to self-insured (also called self-funded) plans. See 29 U.S.C. § 1144(a)

(preempting “any and all state laws” on this subject). Evidence shows that 

millions of people are covered, in each of the four states, under self-insured plans. 

For example, Hobby Lobby Stores, Inc. covers its employees through self-insured 

plans. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1124 (10th Cir. 2013), 

aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 

Appellants’ argument does not even apply to Virginia, which does not have any 

state law requiring coverage for contraceptive care. 

Accordingly, the states have shown that the threat to their economic interest 

is reasonably probable, and they have established a procedural injury. Cf. East Bay 

Sanctuary Covenant v. Trump, No. 18-17274, 2018 WL 6428204, at *12 n.8 (9th 

Cir. Dec. 7, 2018) (order) (holding that the plaintiffs “have adequately identified 

concrete interests impaired by the Rule and thus have standing to challenge the 

absence of notice-and-comment procedures in promulgating it”). “[T]he causation 

and redressability requirements are relaxed” once a plaintiff has established a 
21 

procedural injury, Citizens for Better Forestry, 341 F.3d at 975 (quoting Pub. 

Citizen v. Dep’t of Transp., 316 F.3d 1002, 1016 (9th Cir. 2003)), and both 

requirements are met here. The injury asserted is traceable to the agencies’ issuing

the IFRs allegedly in violation of the APA’s requirements, and granting an

injunction would prohibit enforcement of the IFRs. The states have thus 

established standing.1

The dissent raises a theory not advanced by any party. According to the 

dissent, the states’ economic injuries, if any, will be self-inflicted because the 

states voluntarily chose to provide money for contraceptive care to its residents 

through state programs. The dissent argues that the states lack standing because 

such “self-inflicted” injuries are not traceable to the agencies’ conduct, citing

Pennsylvania v. New Jersey, 426 U.S. 660 (1976) (per curiam). In Pennsylvania, 

the plaintiff states challenged other states’ laws that increased taxes on nonresident 

income. 426 U.S. at 662–63. The plaintiff states provided tax credits to their 

residents for taxes paid to other states. Id. at 662. Accordingly, the defendant

 1 In addition to establishing constitutional standing, “[a] plaintiff must also satisfy 

the non-constitutional standing requirements of the statute under which [it] seeks to 

bring suit.” City of Sausalito, 386 F.3d at 1199. In a single sentence, Little Sisters 

argues that the states lack statutory standing. This argument is waived. See 

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues 

which are argued specifically and distinctly in a party’s opening brief . . . [and a] 

bare assertion does not preserve a claim” (citation omitted)); Bilyeu v. Morgan 

Stanley Long Term Disability Plan, 683 F.3d 1083, 1090 (9th Cir. 2012) (holding 

that “statutory standing may be waived”).
22 

states’ tax increases also increased the amount of tax credits provided by the 

plaintiff states, and the plaintiff states lost revenue. Id. In denying leave to file 

bills of complaint invoking the Supreme Court’s original jurisdiction, the Court 

held that the plaintiff states could not “demonstrate that the injury for which [they 

sought] redress was directly caused by the actions of another State” because the 

injuries to the plaintiff states’ fiscs “were self-inflicted . . . and nothing prevents 

[them] from withdrawing [the] credit for taxes paid to [defendant states].” Id. at 

664.

We question whether the holding of Pennsylvania applies outside the 

specific requirements for the invocation of the Supreme Court’s original 

jurisdiction. Courts regularly entertain actions brought by states and municipalities 

that face economic injury, even though those governmental entities theoretically 

could avoid the injury by enacting new legislation. See, e.g., South Dakota v. 

Dole, 483 U.S. 203 (1987) (addressing South Dakota’s challenge to highway 

funding conditioned on a minimum drinking age, even though South Dakota could 

have avoided the injury by changing its minimum drinking age); Gladstone 

Realtors v. Village of Bellwood, 441 U.S. 91, 110–11 (1979) (holding that a 

municipality suffered an injury from a reduction in its property tax base, even 

though nothing required the municipality to impose property taxes). But we need 

not decide whether Pennsylvania’s “self-infliction” doctrine applies to the ordinary 
23 

injury-in-fact requirement of Article III standing because, as explained below, the 

injury here is not “self-inflicted” within the meaning of Pennsylvania.

The Supreme Court later held, in Wyoming v. Oklahoma, that Wyoming had 

standing to challenge an Oklahoma statute that decreased Wyoming’s revenue—

from tax on coal mined in Wyoming—by requiring Oklahoma power plants to 

burn at least 10% Oklahoma-mined coal. 502 U.S. 437, 447–48 (1992). The Court 

highlighted that Wyoming suffered a “direct injury in the form of a loss of specific 

tax revenues” from the reduced demand for Wyoming coal caused by the 

Oklahoma statute. Id. at 448.

Both Pennsylvania and Wyoming involved harm to the plaintiff states’ fiscs 

that were, as described by the dissent, “self-inflicted.” What distinguishes the two 

cases, and what caused the Supreme Court to reach different results, is that the 

plaintiff states’ laws in Pennsylvania directly and explicitly tied the states’ finances 

(revenue loss caused by tax credit) to another sovereign’s laws (other states’ taxes 

on nonresident income). See Maryland v. Louisiana, 451 U.S. 725, 742 n.18 

(1981) (“In Pennsylvania, the only reason that the complaining States were denied 

tax revenues was because their legislatures had determined to give a credit for 

taxes paid to other States, and, to this extent, any injury was voluntarily suffered”). 

Wyoming did not involve such state laws; the tax on Wyoming-mined coal was not 

so tethered to the legislative decisions of other sovereigns. The same is true of the 
24 

contraceptive coverage laws of the plaintiff states here. Accordingly, we are not 

convinced that Pennsylvania controls in this case. Cf. Texas v. United States, 809 

F.3d 134, 158–59 (5th Cir. 2015), as revised (Nov. 25, 2015); Texas v. United 

States, 787 F.3d 733, 749 n.34 (5th Cir. 2015).

D.

We affirm the preliminary injunction insofar as it bars enforcement of the 

IFRs in the plaintiff states, but we otherwise vacate the portion of the injunction 

barring enforcement in other states. The scope of the injunction is overbroad.

A preliminary injunction is a matter of equitable discretion and is “an 

extraordinary remedy that may only be awarded upon a clear showing that the 

plaintiff is entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008) (citation 

omitted). “A party can obtain a preliminary injunction by showing that (1) it is 

‘likely to succeed on the merits,’ (2) it is ‘likely to suffer irreparable harm in the 

absence of preliminary relief,’ (3) ‘the balance of equities tips in [its] favor,’ and 

(4) ‘an injunction is in the public interest.’” Disney Enters., Inc. v. VidAngel, Inc., 

869 F.3d 848, 856 (9th Cir. 2017) (alteration in original) (quoting Winter, 555 U.S. 

at 20). When the government is a party, the last two factors merge. Drakes Bay 

Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

1.
25 

Likelihood of success on the merits is “the most important” factor; if a 

movant fails to meet this “threshold inquiry,” we need not consider the other 

factors. Disney, 869 F.3d at 856 (citation omitted). The district court held that the 

states are likely to succeed on the merits of their APA claim. We agree.

The APA requires that, prior to promulgating rules, an agency must issue a 

general notice of proposed rulemaking, 5 U.S.C. § 553(b), and “give interested 

persons an opportunity to participate in the rule making through submission of 

written data, views or arguments,” id. § 553(c). A court must set aside rules made 

“without observance of [this] procedure.” Id. § 706(2)(D). Again, the parties do 

not dispute that the religious and moral exemption IFRs were issued without notice 

and comment. The only remaining issue is whether prior notice and comment was 

not required because an exception to this rule applied.

Exceptions to notice and comment rulemaking “are not lightly to be 

presumed.” Marcello v. Bonds, 349 U.S. 302, 310 (1955). “[I]t is antithetical to the 

structure and purpose of the APA for an agency to implement a rule first, and then 

seek comment later.” Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir. 2005). 

Failure to follow notice and comment rulemaking may be excused when good 

cause exists, 5 U.S.C. § 553(b)(B); when a subsequent statute authorizes it, id. § 

559; and when it is harmless, id. § 706. Appellants argue that each of these three 

exceptions applies here.
26 

We begin by examining whether the agencies had good cause for bypassing 

notice and comment. An agency may “for good cause find[] . . . that notice and 

public procedure thereon are impracticable, unnecessary, or contrary to the public 

interest.” 5 U.S.C. § 553(b)(B). “[T]he good cause exception goes only as far as 

its name implies: It authorizes departures from the APA’s requirements only when 

compliance would interfere with the agency’s ability to carry out its mission.” 

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). Good 

cause is to be “narrowly construed and only reluctantly countenanced.” Alcaraz v. 

Block, 746 F.2d 593, 612 (9th Cir. 1984) (citation omitted). As such, the good 

cause exception is usually invoked in emergencies, and an agency must “overcome 

a high bar” to do so. United States v. Valverde, 628 F.3d 1159, 1164–65 (9th Cir. 

2010). Because good cause is determined on a “case-by-case” basis, based on “the 

totality of the factors at play,” Valverde, 628 F.3d at 1164 (quoting Alcaraz, 746, 

F.2d at 612), prior invocations of good cause to justify different IFRs—the legality 

of which are not challenged here—have no relevance. 2

In the past, we have acknowledged good cause where the agency cannot 

“both follow section 553 and execute its statutory duties.” Riverbend, 958 F.2d at 

 2 The Little Sisters argue that if the court invalidates the IFRs here, the court must 

also invalidate prior ones related to the exemption and accommodation. This 

argument is unpersuasive. Whether or not those IFRs were promulgated with good 

cause, they are not before us at this time.
27 

1484 n.2 (quoting Levesque v. Block, 723 F.2d 175, 184 (1st Cir. 1983)). We have 

also acknowledged good cause where “‘delay would do real harm’ to life, property, 

or public safety.” East Bay Sanctuary Covenant, 2018 WL 6428204, at *20 

(quoting Valverde, 628 F.3d at 1165); see also Haw. Helicopter Operators Ass’n v. 

FAA, 51 F.3d 212, 214 (9th Cir. 1995) (good cause shown based on threat reflected 

in an increasing number of helicopter accidents); Jifry v. FAA, 370 F.3d 1174, 

1179 (D.C. Cir. 2004) (upholding good cause determination that the rule was 

“necessary to prevent a possible imminent hazard to aircraft, persons, and property 

within the United States”). 

The agencies here determined that “it would be impracticable and contrary 

to the public interest to engage in full notice and comment rulemaking before 

putting these [IFRs] into effect.” See, e.g., 82 Fed. Reg. at 47,815; see also 82 Fed. 

Reg. at 47,856. They recited the immediate need to (1) reduce the legal and 

regulatory uncertainty regarding the accommodation in the wake of Zubik, (2) 

eliminate RFRA violations by reducing the burden on religious beliefs of objecting

employers, and (3) reduce the costs of health insurance.3

 82 Fed. Reg. at 47,813–

 3 Little Sisters argues that the agencies had good cause because the prior regulatory 

regime violated the Free Exercise Clause and the Establishment Clause. This 

assertion was not part of the agencies’ original good cause findings, and we may 

not consider it now. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[A]n agency’s action must be upheld, 

if at all, on the basis articulated by the agency itself”). 
28 

15; 82 Fed. Reg. at 47,855–56. These general policy justifications are insufficient 

to establish good cause. 

First, an agency’s desire to eliminate more quickly legal and regulatory 

uncertainty is not by itself good cause. See Valverde, 628 F.3d at 1167

(concluding that an agency’s “interest in eliminating uncertainty does not justify its 

having sought to forego notice and comment”). “If ‘good cause’ could be satisfied 

by an Agency’s assertion that ‘normal procedures were not followed because of the 

need to provide immediate guidance and information[,] . . . then an exception to 

the notice requirement would be created that would swallow the rule.’” Id.

(alterations in original) (quoting Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 

1995)); see also Envtl. Def. Fund, Inc. v. EPA, 716 F.2d 915, 920–21 (D.C. Cir. 

1983) (“[I]t was not at all reasonable for [the agency] to rely on the good cause 

exception” simply because of “an alleged pressing need to avoid industry 

compliance with regulations that were to be eliminated”). Furthermore, the 

agencies’ request for post-promulgation comments in issuing the IFRs “casts 

further doubt upon the authenticity and efficacy of the asserted need to clear up 

potential uncertainty,” Valverde, 628 F.3d at 1166, because allowing for postpromulgation comments implicitly suggests that the rules will be reconsidered and 

that the “level of uncertainty is, at best, unchanged,” United States v. Reynolds, 

710 F.3d 498, 510 (3d Cir. 2013) (citing United States v. Johnson, 632 F.3d 912, 
29 

929 (5th Cir. 2011)). This explanation therefore fails. It is always the case that an 

agency can regulate—or in this case, de-regulate—faster by issuing an IFR without 

notice and comment. 

Second, we of course acknowledge that eliminating RFRA violations by 

reducing the burden on religious beliefs is an important consideration for the 

agencies. Any delay in rectifying violations of statutory rights has the potential to 

do real harm. See Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)

(“The notice and comment procedures in Section 553 should be waived only when

delay would do real harm”). Whether the accommodation actually violates RFRA 

is a question left open by the Supreme Court.4

 See Zubik, 136 S. Ct. at 1560. But 

we need not determine whether there is a RFRA violation here because, even if 

immediately remedying the RFRA violation constituted good cause, the agencies’

reliance on this justification was not a reasoned decision based on findings in the 

record. See Valverde, 628 F.3d at 1165, 1168 (agencies must provide “rational 

justification” and identify “rational connection between the facts found and the 

choice made to promulgate the interim rule” (internal quotation marks and citation 

omitted)). In January 2017, the agencies explicitly declined to change the 

 4 Before Zubik, eight courts of appeals (of the nine to have considered the issue) 

have found that the regulatory regime in place prior to the IFRs did not impose a 

substantial burden on religious exercise under RFRA. See, e.g., E. Tex. Baptist 

Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015), vacated, Zubik, 136 S.Ct. at 1561. 
30 

accommodation in light of Zubik and RFRA. They then let nine months go by and 

failed to specify what developments necessitated the agencies to change their 

position and determine, in October 2017, that RFRA violations existed. Cf. id. at 

1166 (reasoning that agency finding of urgent need was inadequate when agency 

had allowed seven months to pass without action). The agencies provided no 

explanation, legal or otherwise, for their changed understanding. Cf. Encino 

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016) (holding that an 

agency’s unexplained change in position does not warrant deference); East Bay 

Sanctuary Covenant, 2018 WL 6428204, at *20 (concluding that “speculative” 

reasoning is insufficient to support good cause). The IFRs are devoid of any 

findings related to the issue. Indeed, the agencies cited no intervening legal 

authority for their justification, in contrast to when they issued an IFR in light of

Wheaton. Given these failures, the agency action cannot be upheld on unexplained 

about-face.

The agencies further argue that the new IFRs will decrease insurance costs 

for entities remaining on more expensive grandfathered plans—which are exempt 

from the contraceptive coverage requirement—to avoid becoming subject to the 

requirement. 82 Fed. Reg. at 47,815; 82 Fed. Reg. at 47,855-56. This is 

speculation unsupported by the administrative record and is not sufficient to 
31 

constitute good cause. See Valverde, 628 F.3d at 1167 (“[C]onclusory speculative 

harms the [agency] cites are not sufficient” (citation omitted)).

We also highlight that there was no urgent deadline to issue the IFRs that 

interfered with the agencies from complying with the APA.

5

 Congress had not 

imposed a deadline here on agency decisionmaking that interfered with 

compliance. The President’s executive order merely asks the agencies to “consider 

issuing amended regulations, consistent with applicable law, to address 

conscience-based objections to the preventive-care mandate.” 82 Fed. Reg. at 

21,675. Neither did the Supreme Court mandate any deadline when it remanded 

the last challenge to the accommodation in order to give parties “an opportunity to 

arrive at an approach going forward.” Zubik, 136 S. Ct. at 1560. 

The agencies cite two cases in support of their good cause claim: Priests For

Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014),

vacated and remanded sub nom. Zubik, 136 S. Ct. at 1557; and Serv. Employees 

Int’l Union, Local 102 v. Cty. of San Diego, 60 F.3d 1346 (9th Cir. 1994). Both 

are distinguishable. The D.C. Circuit in Priests for Life rejected the plaintiffs’

argument that the government lacked good cause to promulgate IFRs without 

 5 We also point out that the agencies have not displayed urgency in reaching final 

resolution of this case. After filing this appeal from the district court’s order 

granting a preliminary injunction, the agencies filed a stipulation staying further 

district court proceedings pending resolution of the appeal. Before the district 

court, this case has remained in abeyance for nearly a year.
32 

notice and comment. 772 F.3d at 276–77. In so holding, it emphasized that the 

IFRs modified existing regulations that “were recently enacted pursuant to notice 

and comment rulemaking, and presented virtually identical issues” as the 

challenged IFRs. Id. at 276 (emphasis added); see also id. (describing the 

modifications in the new IFRs as “minor”). The IFRs here do not present minor 

changes. They substantially expanded the categorical exemption and effectively

made accommodations voluntary. The IFRs also introduced an entirely new moral 

exemption that had never been the subject of previous regulations. These

substantial changes came after the agencies previously determined that no change 

to the religious accommodation process was needed in light of RFRA. In Serv. 

Employees Int’l Union, we held that resolving uncertainty caused by conflicting 

judicial decisions is sufficient good cause. 60 F.3d at 1352 n.3. In that case, 

resolving uncertainty was sufficient because the agencies found that conflicting 

decisions were poised to cause “enormous” and “unforeseen” financial liability 

“threaten[ing] [the] fiscal integrity” of state and local governments. Id. When 

issuing the IFRs here, the agencies cited no such comparable financial threat. 

Accordingly, based on the totality of the circumstances, the agencies likely 

did not have good cause for bypassing notice and comment.

We next turn to whether the agencies had statutory authority for bypassing 

notice and comment. The APA cautions “that no subsequent statute shall be 
33 

deemed to modify it ‘except to the extent that it does so expressly.’” CastilloVillagra v. INS, 972 F.2d 1017, 1025 (9th Cir. 1992) (quoting 5 U.S.C. § 559); see 

also Asiana Airlines v. FAA, 134 F.3d 393, 397 (D.C. Cir. 1998) (defining the 

inquiry as “whether Congress has established procedures so clearly different from 

those required by the APA that it must have intended to displace the norm”). The 

agencies point to three statutory provisions enacted as part of the Health Insurance 

Portability and Accountability Act of 1996 (HIPAA). These provisions specify:

The Secretary, consistent with section 104 of the Health [Insurance] 

Portability and Accountability Act of 1996, may promulgate such 

regulations as may be necessary or appropriate to carry out the 

provisions of this subchapter. The Secretary may promulgate any 

interim final rules as the Secretary determines are appropriate to carry 

out this subchapter.

26 U.S.C. § 9833; 29 U.S.C. § 1191c; 42 U.S.C. § 300gg-92. When enacting the 

ACA, Congress codified the contraceptive coverage requirement in the same 

chapters of the United States Code as those provisions. The agencies argue that the 

provisions authorize them to issue IFRs implementing the ACA without notice and 

comment. 

Their argument likely fails. The identified provisions authorize agencies to 

issue IFRs, but they are silent as to any required procedure for issuing an IFR. 

They do not provide that notice and comment is supplanted or that good cause is 

no longer required. They neither contain express language exempting agencies

from the APA nor provide alternative procedures that could reasonably be 
34 

understood as departing from the APA. See Castillo-Villagra, 972 F.2d at 1025 

(holding that a subsequent statute must “expressly” modify the APA). These

provisions thus stand in contrast to other provisions that we have found to be 

express abdications of the APA. See, e.g, id. (holding that APA was supplanted by

statute that stated “the procedure so prescribed shall be the sole and exclusive 

procedure for determining the deportability of an alien under this section” (internal 

quotation marks omitted)); Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 

1225, 1236 n.18 (D.C. Cir. 1994) (holding that APA was supplanted by statute that 

stated “[t]he Secretary shall cause to be published in the Federal Register a notice 

of the interim final DRG prospective payment rates” (emphasis added)). 

The agencies insist that we must read HIPAA’s use of the word “interim” as 

singlehandedly authorizing the agencies to issue IFRs without notice and comment 

whenever the agencies deem it appropriate. Otherwise, the agencies warn, we will 

be rendering superfluous the second sentence of the quoted provisions. We 

disagree.

The first sentence of the quoted provisions authorizes the issuance of 

regulations “consistent with section 104 of the Health [Insurance] Portability and 

Accountability Act of 1996.” Section 104 of HIPAA, entitled “Assuring 

Coordination,” generally requires the three Secretaries to coordinate their 
35 

regulations and policies.6 Notably, the second sentence of the quoted provisions 

does not contain the same consistency requirement; each Secretary is authorized to 

issue IFRs without ensuring consistency with the rules of his or her partner 

Secretaries. Reading both sentences together, Congress authorized the Secretaries 

to issue coordinated final rules in the ordinary course; and, if a Secretary met an 

inter-agency impasse but needed to regulate within his or her own domain 

temporarily while sorting out the inter-agency conflict, then a Secretary could issue 

an interim final rule. In this procedural posture, we need not delimit the full scope 

of the second sentence of the quoted provisions. For present purposes, it suffices 

 6 Section 104 states:

The Secretary of the Treasury, the Secretary of Health and Human 

Services, and the Secretary of Labor shall ensure, through the execution 

of an interagency memorandum of understanding among such 

Secretaries, that—

(1) regulations, rulings, and interpretations issued by such Secretaries 

relating to the same matter over which two or more such Secretaries 

have responsibility under this subtitle (and the amendments made by 

this subtitle and section 401) are administered so as to have the same 

effect at all times; and

(2) coordination of policies relating to enforcing the same requirements 

through such Secretaries in order to have a coordinated enforcement 

strategy that avoids duplication of enforcement efforts and assigns 

priorities in enforcement.

Pub. L. No. 104-191, § 401, 110 Stat. 1976 (1996) (codified at 42 U.S.C. § 300gg92 note).
36 

to observe that we need not give the second sentence the agencies’ expansive 

interpretation in order for the second sentence to retain independent effect.

Accordingly, the agencies likely did not have statutory authority for 

bypassing notice and comment.

We last turn to whether bypassing notice and comment was harmless. The 

court “must exercise great caution in applying the harmless error rule in the 

administrative rulemaking context.” Riverbend, 958 F.2d at 1487. “[T]he failure 

to provide notice and comment is harmless only where the agency’s mistake 

‘clearly had no bearing on the procedure used or the substance of decision 

reached.’” Id. (quoting Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760, 764–65 

(9th Cir. 1986)).

The circumstances here are similar to those in Paulsen, 413 F.3d at 1006. 

There, the Bureau of Prisons “failed to provide the required notice-and-comment 

period before effectuating [an] interim regulation, thereby precluding public 

participation in the rulemaking.” Id. We held the error not harmless because 

“petitioners received no notice of any kind until after the Bureau made the . . . 

interim rule effective.” Id. at 1007. We further emphasized that “an opportunity to 

protest an already-effective rule” did not render the violation harmless. Id.

(emphasis added). We distinguished from prior cases where “interested parties 

received some notice that sufficiently enabled them to participate in the rulemaking 
37 

process before the relevant agency adopted the rule.” Id. (citing cases). The 

agencies’ actions here are analogous. No members of the public received notice of 

the IFRs or were able to comment prior to their effective dates.

Appellants argue that the states “were afforded multiple opportunities to 

comment on the scope of the exemption and accommodation during multiple 

rounds of rulemaking.” These “opportunities” refer to public comment on prior 

rules regarding the religious exemption and accommodation. Appellants’ 

argument does not convince us. As previously discussed, those prior rules were 

materially different from the IFRs here, which dramatically expanded the scope of 

the religious exemption and introduced a moral exemption that was not the subject 

of any previous round of notice and comment rulemaking. The public had no such 

notice or opportunity to comment on these potential changes, thus denying it the 

safeguards of the notice and comment procedure. This denial is comparable to 

failing to provide prior notice and comment before finalizing a rule that is not a 

“logical outgrowth” of the proposed rule, which an agency may not do without

considering “whether a new round of notice and comment would provide the first 

opportunity for interested parties to offer comments that could persuade the agency 

to modify its rule.” NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002) (citation 

omitted); see also CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1081 

(D.C. Cir. 2009) (holding that notice of a proposed rule is sufficient to uphold a
38 

final rule if interested parties “should have anticipated” the content of the rule). 

Accordingly, the prior “opportunities” are irrelevant. 

The agencies argue that the states have failed to identify any specific 

comment that they would have submitted. There is no such requirement for 

harmless error analysis. The agencies also argue that the states had an opportunity 

to comment on the IFRs post-issuance and that the agencies will consider the 

comments before issuing final rules. This argument also fails. “The key word in 

the title ‘Interim Final Rule’ . . . is not interim, but final. ‘Interim’ refers only to 

the Rule’s intended duration—not its tentative nature.” Career Coll. Ass’n v. 

Riley, 74 F.3d 1265, 1268 (D.C. Cir. 1996). We reiterate that “an opportunity to 

protest an already-effective rule” does not render an APA violation harmless. 

Paulsen, 413 F.3d at 1007 (emphasis added). 

Accordingly, bypassing notice and comment likely was not harmless.

2.

A plaintiff seeking preliminary relief must “demonstrate that irreparable 

injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis 

omitted). The analysis focuses on irreparability, “irrespective of the magnitude of 

the injury.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999). 

The district court concluded that the states are likely to suffer irreparable 

harm absent an injunction. This decision was not an abuse of discretion. As 
39 

discussed in our standing analysis, it is reasonably probable that the states will 

suffer economic harm from the IFRs. Economic harm is not normally considered 

irreparable. L.A. Mem’l Coliseum Comm’n v. Nat'l Football League, 634 F.2d 

1197, 1202 (9th Cir. 1980). However, such harm is irreparable here because the 

states will not be able to recover monetary damages connected to the IFRs. See 5 

U.S.C. § 702 (permitting relief “other than money damages”); see also Cottonwood 

Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1091 (9th Cir. 2015)

(reaffirming that the harm flowing from a procedural violation can be irreparable).

That the states promptly filed an action following the issuance of the IFRs also 

weighs in their favor. Cf. Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 

F.2d 1374, 1377 (9th Cir. 1985) (“Plaintiff’s long delay before seeking a 

preliminary injunction implies a lack of urgency and irreparable harm”). 

Again, appellants argue that the economic harm is speculative, which “does 

not constitute irreparable injury sufficient to warrant granting a preliminary 

injunction.” See Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 

2016) (citation omitted). As we previously explained in our analysis of standing, 

the harm is not speculative; it is sufficiently concrete and supported by the record. 

Appellants also dispute the factual findings underlying the district court’s holding 

of irreparable harm, but again fail to explain how the district court erred under our 

standard of review.
40 

3.

Because the government is a party, we consider the balance of equities and 

the public interest together. Jewell, 747 F.3d at 1092. 

The IFRs are an attempt to balance states’ interest in “ensuring coverage for 

contraceptive and sterilization services” with appellants’ interest in “provid[ing]

conscience protections for individuals and entities with sincerely held religious [or 

moral] beliefs in certain health care contexts.” 82 Fed. Reg. at 47,793. The district 

court concluded that the balance of equities and the public interest tip in favor of 

granting the preliminary injunction. The district court did not abuse its discretion. 

The public interest is served by compliance with the APA: “The APA 

creates a statutory scheme for informal or notice-and-comment rulemaking 

reflecting a judgment by Congress that the public interest is served by a careful and 

open review of proposed administrative rules and regulations.” Alcaraz, 746 F.2d 

at 610 (internal quotation marks and citation omitted). It does not matter that 

notice and comment could have changed the substantive result; the public interest 

is served from proper process itself. Cf. Citizens for Better Forestry, 341 F.3d at 

976 (stating, in standing context, that “[i]t suffices that the agency’s decision could 

be influenced” by public participation (alterations and citation removed) (emphasis 

in original)). The district court additionally found that the states face “potentially 

dire public health and fiscal consequences as a result of a process as to which they 
41 

had no input” and highlighted the public interest in access to contraceptive care. 

This finding is sufficiently supported by the record.

We acknowledge that free exercise of religion and conscience is 

undoubtedly, fundamentally important. Regardless of whether the accommodation 

violates RFRA, some employers have sincerely-held religious and moral 

objections to the contraceptive coverage requirement. Cf. Jolly v. Coughlin, 76 

F.3d 468, 482 (2d Cir. 1996) (“[A]lthough the plaintiff’s free exercise claim is 

statutory rather than constitutional, the denial of the plaintiff’s right to the free 

exercise of his religious beliefs is a harm that cannot be adequately compensated 

monetarily”). Protecting religious liberty and conscience is obviously in the public 

interest. However, balancing the equities is not an exact science. See also 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, 

J., concurring) (“Balancing the equities . . . is lawyers’ jargon for choosing 

between conflicting public interests”). We do not have a sufficient basis to second 

guess the district court and to conclude that its decision was illogical, implausible, 

or without support in the record. Finalizing that issue must await any appeal from 

the district court’s future determination of whether to issue a permanent injunction.

E.

The district court enjoined enforcement of the IFRs nationwide because the 

agencies “did not violate the APA just as to Plaintiffs: no member of the public 
42 

was permitted to participate in the rulemaking process via advance notice and 

comment.” The district court abused its discretion in granting a nationwide 

injunction. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)

(“[A]n overbroad injunction is an abuse of discretion” (quoting Lamb-Weston, Inc. 

v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)). We vacate the portion 

of the injunction barring enforcement of the IFRs in non-plaintiff states.

Crafting a preliminary injunction is “an exercise of discretion and judgment, 

often dependent as much on the equities of a given case as the substance of the 

legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 

2080, 2087 (2017). “The purpose of such interim equitable relief is not to 

conclusively determine the rights of the parties but to balance the equities as the 

litigation moves forward.” Id. (citation omitted). Although “there is no bar against 

. . . nationwide relief in federal district court or circuit court,” such broad relief 

must be “necessary to give prevailing parties the relief to which they are entitled.” 

Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987) (emphasis in original

removed in part); see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979)

(“[I]njunctive relief should be no more burdensome to the defendant than 

necessary to provide complete relief to the plaintiffs” before the court). This rule 
43 

applies with special force where there is no class certification.7 See Easyriders 

Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th Cir. 1996) 

(“[I]njunctive relief generally should be limited to apply only to named plaintiffs 

where there is no class certification”).

Before we examine the scope of the injunction here, we highlight several 

concerns associated with overbroad injunctions, particularly nationwide ones. Our

concerns underscore the exercise of prudence before issuing such an injunction. 

First, “nationwide injunctive relief may be inappropriate where a regulatory 

challenge involves important or difficult questions of law, which might benefit 

from development in different factual contexts and in multiple decisions by the 

various courts of appeals.” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 

664 (9th Cir. 2011). The Supreme Court has repeatedly emphasized that 

nationwide injunctions have detrimental consequences to the development of law 

and deprive appellate courts of a wider range of perspectives. See Califano, 442 

U.S. at 702 (highlighting that nationwide injunctions “have a detrimental effect by 

foreclosing adjudication by a number of different courts and judges”); United 

States v. Mendoza, 464 U.S. 154, 160 (1984) (concluding that allowing nonmutual 

 7 Indeed, Congress has recently proposed a bill that would prohibit injunctions 

involving non-parties “unless the non-party is represented by a party acting in a 

representative capacity pursuant to the Federal Rules of Civil Procedure.” H.R. 

6730, 115th Cong. (2018)
44 

collateral estoppel against the government would “substantially thwart the 

development of important questions of law by freezing the first final decision 

rendered on a particular legal issue” and “deprive [the Supreme] Court of the 

benefit it receives from permitting several courts of appeals to explore a difficult 

question before [the Supreme] Court grants certiorari”); Arizona v. Evans, 514 U.S. 

1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized 

that when frontier legal problems are presented, periods of ‘percolation’ in, and 

diverse opinions from, state and federal appellate courts may yield a better 

informed and more enduring final pronouncement by this Court”).

The detrimental consequences of a nationwide injunction are not limited to 

their effects on judicial decisionmaking. There are also the equities of non-parties 

who are deprived the right to litigate in other forums. See Zayn 

Siddique, Nationwide Injunctions, 117 COLUM. L. REV. 2095, 2125 (2017) (“A 

plaintiff may be correct that a particular agency action is unlawful or unduly 

burdensome, but remedying this harm with an overbroad injunction can cause 

serious harm to nonparties who had no opportunity to argue for more limited 

relief”). Short of intervening in a case, non-parties are essentially deprived of their 

ability to participate, and these collateral consequences are not minimal. 

Nationwide injunctions are also associated with forum shopping, which hinders the 

equitable administration of laws. See Samuel L. Bray, Multiple Chancellors: 
45 

Reforming the National Injunction, 131 HARV. L. REV. 417, 458-59 (2017) (citing 

five nationwide injunctions issued by Texas district courts in just over a year). 

These consequences are magnified where, as here, the district court stays

any effort to prepare the case for trial pending the appeal of a nationwide 

preliminary injunction. We have repeatedly admonished district courts not to

delay trial preparation to await an interim ruling on a preliminary injunction. See, 

e.g., Melendres v. Arpaio, 695 F.3d 990, 1002–03 (9th Cir. 2012); Global 

Horizons, Inc. v. U.S. Dep’t of Labor, 510 F.3d 1054, 1058 (9th Cir. 2007). 

“Because of the limited scope of our review of the law applied by the district court 

and because the fully developed factual record may be materially different from 

that initially before the district court, our disposition of appeals from most 

preliminary injunctions may provide little guidance as to the appropriate 

disposition on the merits.” Id. at 1003 (quoting Sports Form, Inc. v. United Press 

Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982)). The district court here failed to give 

any particular reason for the stay,8 and this case could have well proceeded to a 

disposition on the merits without the delay in processing the interlocutory appeal. 

"Given the purported urgency of" implementing the IFRs, the agencies and 

intervenors might “have been better served to pursue aggressively” its defense of 

 8 The district court stayed the case pending the outcome of this appeal based on the 

parties’ stipulation. The order staying the case provides no other justification or 

analysis supporting the stay.
46 

the IFRs in the district court, “rather than apparently awaiting the outcome of this 

appeal.” Global Horizons, 510 F.3d at 1058.

In light of these concerns, we now address the preliminary injunction issued 

here. The scope of the remedy must be no broader and no narrower than necessary 

to redress the injury shown by the plaintiff states. The plaintiff states argue that 

complete relief to them would require enjoining the IFRs in all of their applications 

nationwide. That is not necessarily the case. See L.A. Haven Hospice, 638 F.3d at 

665 (vacating the nationwide portion of an injunction barring the enforcement of a 

facially invalid regulation); City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 

1244–45 (9th Cir. 2018) (vacating nationwide portion of injunction barring 

enforcement of executive order). The scope of an injunction is “dependent as 

much on the equities of a given case as the substance of the legal issues it 

presents,” and courts must tailor the scope “to meet the exigencies of the particular 

case.” Int’l Refugee Assistance Project, 137 S. Ct. at 2087 (citations omitted). The 

circumstances of this case dictate a narrower scope.

On the present record, an injunction that applies only to the plaintiff states 

would provide complete relief to them. It would prevent the economic harm 

extensively detailed in the record. Indeed, while the record before the district court 

was voluminous on the harm to the plaintiffs, it was not developed as to the 

economic impact on other states. See City & Cty. of San Francisco, 897 F.3d at 
47 

1231, 1244–45 (holding that the district court abused its discretion in issuing a 

nationwide injunction because the plaintiffs’ “tendered evidence is limited to the 

effect of the Order on their governments and the State of California” and because 

“the record is not sufficiently developed on the nationwide impact of the Executive 

Order”). The injunction must be narrowed to redress only the injury shown as to 

the plaintiff states.9

Accordingly, we conclude that the scope of the preliminary injunction is 

overbroad and that the district court abused its discretion in that regard. District 

judges must require a showing of nationwide impact or sufficient similarity to the 

plaintiff states to foreclose litigation in other districts, from Alaska to Puerto Rico 

to Maine to Guam.

IV.

We affirm that venue is proper in the Northern District of California. We 

affirm that the plaintiff states have standing to sue. Although we affirm the 

preliminary injunction, the record does not support the injunction’s nationwide 

scope. We vacate the portion of the injunction barring enforcement of the IFRs in 

other states and remand to the district court. This panel will retain jurisdiction for 

 9 Appellants did not clearly raise other arguments in support of a narrower 

injunction, including the potential for “substantial interference with another court’s 

sovereignty,” United States v. AMC Entm’t, Inc., 549 F.3d 760, 770 (9th Cir. 

2008), and the lack of need for courts to apply the law uniformly. Accordingly, we 

do not address them.
48 

any subsequent appeals arising from this case. Costs on appeal are awarded to 

Plaintiffs-Appellees. The mandate shall issue forthwith. 

AFFIRMED IN PART, VACATED IN PART, and REMANDED.
State of California v. Little Sisters of the Poor, No. 18-15144+

Kleinfeld, Senior Circuit Judge, dissenting:

I respectfully dissent. The plaintiff state governments lack standing, so the

district court lacked jurisdiction. The reason they lack standing is that their injury

is what the Supreme Court calls “self-inflicted,” because it arises solely from their

legislative decisions to pay these moneys. Under the Supreme Court’s decision in

Pennsylvania v. New Jersey,

1

 we are compelled to reverse.

Pennsylvania sued New Jersey on the theory that a new New Jersey tax law

caused the Pennsylvania fisc to collect less money.

2

 Pennsylvania granted a tax

credit for income taxes paid to other states, and New Jersey under its new tax law

had begun taxing the New Jersey-derived income of nonresidents.3

 Maine,

Massachusetts, and Vermont sued New Hampshire on similar grounds.4 The

concrete financial injury was plain in all these cases. Like the plaintiff states’

FILED

DEC 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

1

 426 U.S. 660 (1976) (per curiam).

2

 Id. at 662.

3

 Id. at 663.

4

 Id.

1
injury in the case before us, the reason why was the plaintiff states’ laws.5

The Court in Pennsylvania invoked the long established principle that under

Massachusetts v. Missouri,6 the injuries for which redress was sought had to be

“directly caused” by the defendant states.7 They were held not to be “directly

caused” so in Pennsylvania because the monetary losses resulted from the plaintiff

states’ own laws.8 Though it was undisputed that the defendant states’ tax schemes

had cost the plaintiff states money, the defendant states were held not to have

“inflicted any injury,”9 because the monetary harms were “self-inflicted:”10

The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from

decisions made by their respective state legislatures. Nothing required

Maine, Massachusetts, and Vermont to extend a tax credit to their

residents for income taxes paid to New Hampshire, and nothing

prevents Pennsylvania from withdrawing that credit for taxes paid to

New Jersey. No state can be heard to complain about damage

5

 Id.

6

 308 U.S. 1, 15 (1939).

7

 Pennsylvania, 426 U.S. at 664.

8

 Id. 

9

 Id.

10

 Id.

2
inflicted by its own hand.11

California and the other plaintiff states in the case before us have pointed out

that their legislative schemes were in place before the federal regulatory change

that will cost them money. But Pennsylvania does not leave room for such a “first

in time, first in right” argument. Vermont’s law, for instance, long preceded New

Hampshire’s, but the court held that any “injury” was “self-inflicted” because

Vermont need not have extended tax credits to its residents at all.12

 The states

could also have prevented their financial injury by changing their laws.13 As the

concurring opinion put it, “[t]he appellants therefore, [we]re really complaining

about their own statute[s].”14

Pennsylvania differs from the case before us because the dispute was

between coequal sovereigns in Pennsylvania, heard under the Court’s original

jurisdiction, and here it is between state governments and the federal government. 

11

 Id.

12

 Id.; see 32 V.S.A. § 5825 (1966); N.H. R.S.A. § 77-B:2 (1970). 

13

 Pennsylvania, 426 U.S. at 664.

14

 Id. at 667.

3
But Pennsylvania’s rejection of “self-inflicted” injury has been applied outside the

original jurisdiction context.15 There is no conflict between the federal and state

laws, so the sovereign rights of the plaintiff states cannot establish standing.16

Though the plaintiff states may under their own laws spend additional money to

provide benefits to some women that they would not have had to pay for before the

federal change, they remain free to decide whether to do so. 

As the majority acknowledges, the “irreducible minimum” for standing is

that “the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is likely to be redressed by

a favorable judicial decision.”17 All three minima are perhaps debatable, but

15

 See Clapper v. Amnesty Intern. USA, 568 U.S. 398, 416 (2013). 

16

 Sturgeon v. Masica, 768 F.3d 1066, 1074 (9th Cir. 2014), vacated and

remanded sub nom. Sturgeon v. Frost, 136 S. Ct. 1061 (2016) (rejecting “standing

based simply on purported violations of a state’s sovereign rights” and requiring

“evidence of actual injury” where state failed to “identify any actual conflict

between [federal agency regulations] and its own statutes and regulations”);

Sturgeon v. Frost, 872 F.3d 927, 929 (9th Cir. 2017), cert. granted, 138 S. Ct. 2648

(2018) (explaining prior holding as to state standing was “unaffected by the

Supreme Court’s vacatur of [the] prior opinion”); Virginia ex rel. Cuccinelli v.

Sebelius, 656 F.3d 253, 270 (4th Cir. 2011) (holding state lacked standing where it

failed to identify enforcement of state statute that “conflict[ed]” with the individual

mandate of the ACA).

17

 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24,

2016).

4
causation, that is, “traceability,” is controlled by Pennsylvania. That case

establishes that harm to the fisc of a plaintiff state because of its own statute is

“self-inflicted,” and therefore not “traceable to the challenged conduct of the

defendant.”18 Traceability fails if the expense to the state results from its own law

and without that state legislative choice, could be avoided. The federal regulatory

change itself imposes no obligation on the states to provide money for

contraception. The plaintiff states choose to provide some contraception benefits

to employees of employers exempted by the federal insurance requirement, so the

narrowing of the federal mandate may lead to the states spending more because

some employers may spend less. Nor can the plaintiff states invoke the doctrine of

parens patriae to gain standing.19

I recognize that the Fifth Circuit took a different view in different

18

 Pennsylvania, 426 U.S. at 664; Spokeo, 136 S. Ct. at 1547.

19

 See Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007) (explaining that

state actions against the federal government “to protect [its] residents from the

operation of federal statutes” are precluded); Sierra Forest Legacy v. Sherman, 646

F.3d 1161, 1178 (9th Cir. 2011) (“California, like all states, ‘does not have

standing as parens patriae to bring an action against the Federal Government.’”

(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n.16

(1982))).

5
circumstances in Texas v. United States.20

 There, the Fifth Circuit held that states

did indeed have standing to challenge a new federal program relating to

immigration.21 Texas was held to have standing because federal regulatory change

on its administration of drivers’ licenses – requiring it to issue drivers’ licenses to

illegal aliens – would cost it money.

22

 The Fifth Circuit rejected application of the

Pennsylvania “self-inflicted injury” rule, but stressed that its decision “is limited to

these facts.”23 It is not plain that the Fifth Circuit would extend its view of

standing to the quite different facts before us. The regulatory change regarding

contraception poses no challenge to the sovereign authority of California to

provide contraceptive benefits or not, but the regulatory change in Texas did limit

the legislative choices Texas could make without “running afoul of preemption or

the Equal Protection Clause.”24 Nor can we be sure that Texas is good law. The

Supreme Court granted certiorari on the question whether “a State that voluntarily

provides a subsidy” has standing to challenge a federal change that would expand

20

 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015).

21

 Id. at 162.

22

 Id. at 155-57.

23

 Id. at 154.

24

 Id. at 153; see also Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169,

1177 n.8 (9th Cir. 2009) (“An amicus curiae generally cannot raise new arguments

on appeal.” (citations omitted)). 

6
its subsidy, and other issues.25

 The Court was “equally divided,” so the questions

were not answered.26

The majority errs in treating Wyoming v. Oklahoma

27

 as though it overruled

Pennsylvania.

28

It does not say so. And the Court doubtlessly would have said so

had that been its intent. Nor is the self-inflicted injury doctrine even relevant to

Wyoming, which is doubtless why Wyoming does not discuss Pennsylvania. In

Pennsylvania, the plaintiff states could have avoided any lost revenue by changing

25

 United States v. Texas, 136 S. Ct. 906 (2016); Pet. for Writ of Cert. at I,

United States v. Texas, No. 15-674 (U.S. Nov. 20, 2015).

26

 United States v. Texas, 136 S. Ct. 2271, 2272, reh’g denied, 137 S. Ct.

285 (2016).

27

 502 U.S. 437 (1992). 

28

 Of course, it does not matter when jurisdiction is raised, since we must

raise it whenever its absence appears likely. See Interpipe Contracting, Inc. v.

Becerra, 898 F.3d 879, 891 n.9 (9th Cir. 2018) (“Because Article III standing is

jurisdictional, we must sua sponte assure ourselves.”). And the majority errs in

saying that the self-inflicted harm doctrine was not raised by the parties. See

Reply Br. of March for Life at 29, Dkt. No. 95. Much of the briefing before us

addresses standing, and the appellee states were also provided an opportunity to

address self-inflicted injury at oral argument. And it does not matter that the selfinflicted injury doctrine arose in the context of a case taken under the Court’s

original jurisdiction, because it is a straightforward application of the generally

applicable causation requirement for standing. See Clapper, 568 U.S. at 416

(applying Pennsylvania’s “self-inflicted” doctrine outside the original jurisdiction

context); Texas, 809 F.3d at 158-59 (same). 

7
their own laws granting tax credits for taxes paid to the defendant states. By

contrast, Wyoming could not prevent the expense to its fisc by changing its own

law.29 Wyoming lost severance tax revenue because the new Oklahoma law

required major Oklahoma coal consumers to replace a substantial part of the

Wyoming coal they burned with Oklahoma coal, so less coal was mined in

Wyoming.30 Since the Wyoming legislature could not change the Oklahoma law, 

the harm to Wyoming’s fisc was not self-inflicted. The Oklahoma law, which

expressly targeted Wyoming, caused the injury.

31

 In our case, as in Pennsylvania,

the plaintiff states elected to pay money in certain circumstances, and can avoid the

harm to their fiscs by choosing not to pay the money. 

I agree with the federal position that the plaintiff states lack standing to bring

this case in federal court. Because such a conclusion would preclude us from

reaching the other issues in the case, I do not speak to them in this dissent. Nor do

I address additional reasons why the plaintiff states may lack standing, since the

29

 Wyoming, 502 U.S. at 447; see also Texas, 809 F.3d at 158 (“Wyoming

sought to tax the extraction of coal and had no way to avoid being affected by other

states’ laws that reduced demand for that coal.” (emphasis added)).

30

 Id. at 443, 445-47. 

31

 Id. at 443. 

8
“self-inflicted injury” disposes of the question without them. 

9