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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

MAY 212012

SOUTHERN DIVISION

BY

J T NOBlIN CLERK

DEPUTY

THE CATHOLIC DIOCESE OF BILOXI, INC., THE MOST REVEREND ROGER )

P. MORIN, Bishop and President of THE )

CATHOLIC DIOCESE OF BILOXI, INC. )

and his successors in office, as Trustee for )

and on behalf of the RESURRECTION )

CATHOLIC SCHOOL and the SACRED )

HEART CATHOLIC SCHOOL;

)

CATHOLIC SOCIAL AND

)

COMMUNITY SERVICES, INC.; DE

)

L'EPEE DEAF CENTER, INC.; THE

)

CATHOLIC DIOCESE OF JACKSON, )

THE MOST REVEREND JOSEPH N.

)

LATINO, Bishop and Chief Executive

)

Officer of THE CATHOLIC DIOCESE )

OF JACKSON, and his successors in

)

office, in accordance with the discipline )

and government of the Roman Catholic )

Church; VICKSBURG CATHOLIC

)

SCHOOL, INC.; ST. JOSEPH

)

CATHOLIC SCHOOL; CATHOLIC

)

CHARITIES INC.; and ST. DOMINIC- )

JACKSON MEMORIAL HOSPITAL,

)

)

CIVIL ACTION NO.: (: Itt V15'~ Ifj}--ff1YV
JUDGE: ___________________

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary ofthe U.S.

)

Department of Health and Human

)

Services; HILDA SOLIS, in her official )

capacity as Secretary of the U.S.

)

Department of Labor, TIMOTHY

)

GEITHNER, in his official capacity as

)

Secretary of the U.S. Department of

)

Treasury; U.S. DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES;

)

U.S. DEPARTMENT OF LABOR; and

)

U.S. DEPARTMENT OF TREASURY,

)

)

Defendants.

)

Case 1:12-cv-00158-HSO-RHW Document 1 Filed 05/21/12 Page 2 of 55
COMPLAINT 1. This lawsuit is an attempt to vindicate one of America's most fundamental freedoms: the freedom to practice one's religion without governmental interference. The United States Government (the "Government") is now attempting to force Plaintiffs -- all Catholic entities -- to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception in violation of their sincerely held religious beliefs. Plaintiffs acknowledge that individuals in this country have a legal right to these medical services; they are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to co-opt religious entities into providing or facilitating access to them. Indeed, American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb et seq. ("RFRA"), prohibit just this sort of overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most cherished of American rights. 2. Plaintiffs are Catholic religious entities, which provide a wide range of spiritual, educational, social and medical services to residents, both Catholic and non-Catholic alike, throughout the State of Mississippi. 3. The Catholic Diocese of Biloxi, Inc. (the "Diocese of Biloxi") is the legal name ofa religious community inclusive of those Roman Catholic parishes and organizations located in the 17 southeastern counties of Mississippi under the pastoral care of the Most Reverend Roger P. Morin ("Bishop Morin"), and his successors in office. The Diocese of Biloxi carries out its mission directly, through the work of affiliated Catholic entities such as Plaintiffs Catholic Social and Community Services, Inc. ("Catholic Social Services") and de l'Epee Deaf Center, Inc. ("de l'Epee"), and also through the education of students in Catholic schools, including
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Plaintiffs Resurrection Catholic School ("Resurrection Catholic") and Sacred Heart Catholic School ("Sacred Heart") (collectively, the "Biloxi Diocese Plaintiffs").
4. Plaintiff the Catholic Diocese of Jackson, a Mississippi nonprofit corporation (the "Diocese of Jackson"), is a religious community inclusive ofthose Roman Catholic parishes and organizations located in the remaining 65 counties of Mississippi under the pastoral care of the Most Reverend Joseph N. Latino ("Bishop Latino"), Bishop ofthe Roman Catholic Diocese of Jackson and his successors in office. The Diocese of Jackson carries out its mission directly through the work of affiliated corporations such as Plaintiff Catholic Charities, Inc. ("Catholic Charities"), and also through the education of students in Catholic schools, including Plaintiffs St. Joseph Catholic School ("St. Joseph") and Vicksburg Catholic School, Inc. ("Vicksburg Catholic") (collectively, the "Jackson Diocese Plaintiffs").
5. The Catholic Church Extension Society recognizes the Dioceses of Biloxi and Jackson as "Mission Dioceses," because the population of Catholics within Mississippi is too small and scattered to support all of the services and works required of and provided by the two Dioceses. The Dioceses of Biloxi and Jackson therefore receive financial support and assistance from Roman Catholics residing in other Catholic dioceses.
6. PlaintiffSt. Dominic-Jackson Memorial Hospital ("St. Dominic"), while not affiliated with the Dioceses of Jackson and Biloxi, is a Catholic healthcare organization whose mission is both guided by and consistent with the teachings of the Catholic Church. st. Dominic provides medical care and related services to all, regardless of religious faith.
7. Plaintiffs' work is in every respect guided by and consistent with Roman Catholic beliefs. Among those beliefs is the requirement to serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: "Preach the
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Gospel at all times. Use words if necessary." As Pope Benedict recent!y put it, "love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." Pope Benedict XVI, Deus Caritas Est ~ 22 (2006).
8. Plaintiffs address the needs of Mississippi residents in numerous different ways. The Dioceses of Jackson and Biloxi serve families through the education of the students attending their Catholic school systems, which are devoted to teaching a religiously and ethnically diverse student body. Both Dioceses provide charitable service statewide through dozens of programs undertaken by their respective parishes.
9. Plaintiffs Catholic Social Services and Catholic Charities offer a host of social services to thousands of Catholics and non-Catholics in need throughout the State. Plaintiff de l'Epee provides coordinated services to those within Mississippi who are deaf or hard of hearing, to their families, and to clients oflocal agencies and businesses with hearing-related disabilities, to promote their independence and inclusion in the community. It is the only ministry of its kind in the state. And Plaintiff St. Dominic provides invaluable assistance and care to residents of the greater Jackson area, including the homeless and poor who would otherwise not be able to afford medical care. These Plaintiffs serve all people, regardless of faith or financial condition.
10. Catholic belief also includes the firm conviction that sexual union should be reserved to married couples who are so committed to each other that they are open to the creation of life. Thus, artificial interference with the creation of life, including through abortion, sterilization, or contraception, is contrary to core Catholic doctrine.

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11. Defendants have promulgated various rules (collectively, "the u.s. Government
Mandate"), as part of the 2010 Patient Protection and Affordable Care Act (the "Affordable Care Act" or the "Act"), that would require many Catholic and other religious organizations to provide health plans to their employees that include and/or facilitate coverage for abortioninducing drugs, sterilization, and contraception in violation oftheir sincerely held religious beliefs. The U.S. Government Mandate is subject to a narrow exemption (the "Exemption") for certain "religious employers" who can convince the Government that they satisfy four criteria:
• "The inculcation of religious values is the purpose of the organization"; • "The organization primarily employs persons who share the religious tenets of the
organization"; • "The organization primarily serves persons who share the religious tenets of the
organization"; and • "The organization is a nonprofit organization as described in section 6033(a)(1)
and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." Unlike broader religious exemptions available under other federal laws, the Exemption forces religious employers to seek a determination from a government bureaucrat that they are sufficiently "religious" before they can exercise their religious freedoms. 12. Because of the narrow and vague terms of the Exemption, as well as the arbitrary and discretionary nature of the determination it calls for, the Dioceses of Jackson and Biloxi do not know whether they qualify for the Exemption or whether the Government will conclude that they do. Before they can find out, they must submit to an intrusive and arbitrary governmental investigation into whether, in the discretionary view of the Government, their "purpose" is the "inculcation of religious values"; whether they "primarily" employ "persons who share [their] religious tenets" (even though they do not consider religious affiliation in hiring for most
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positions); and whether they "primarily" serve such people (even though their schools and programs are open to those of all faiths).
13. The Exemption's narrow definition of "religious employer" likely excludes Plaintiffs Catholic Social Services, Catholic Charities, de l'Epee, the Catholic schools (Resurrection Catholic, Sacred Heart, Vicksburg Catholic, and St. Joseph), and St. Dominic, even though they are all "religious" organizations under any reasonable definition. Consequently, to attempt to qualify as a "religious employer," these Plaintiffs may be required to stop providing educational opportunities to non-Catholics throughout Mississippi, stop serving non-Catholics in the State, and fire all non-Catholic employees - actions that would run counter to their Catholic faith and commitment to serve all in need without regard to religion.
14. Because Plaintiffs provide their services to persons in need without regard to religious affiliation, and do not consider religious affiliation in hiring for most positions, each of the Plaintiffs is unclear as to whether it qualifies as a "religious employer" under the Exemption.
15. Nonetheless, the process by which the Government proposes to determine whether an organization qualifies for the Exemption will require the Biloxi and Jackson Dioceses to submit to an intrusive inquiry, based on principles inconsistent with the Catholic faith, as to whether in the view of Defendants: (1) its "purpose" is the "inculcation of religious values"; (2) it "primarily" employs "persons who share [its] religious tenets," even though it hires employees of all faiths and may not know how many Catholics it employs; and (3) it "primarily" serves Catholics, even though its schools and social services are open to all. It is uncertain whether the Government will determine, after conducting this inquiry, that either the Biloxi or the Jackson Dioceses or both will qualify for the Exemption.
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16. Regardless of outcome, Plaintiffs strongly object to such an intrusive, arbitrary, and misguided governmental investigation into Plaintiffs' religious missions.
17. The U.S. Government Mandate and its purported Exemption are irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive and discretionary governmental examination of their religious missions. Nor has the Government shown that the U.S. Government Mandate is narrowly tailored to advance the Government's interest in ensuring access to these services, given that such services are already widely available and nothing prevents the Government from providing or paying for them directly through a duly enacted law. The Government, therefore, cannot justifY its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of Plaintiffs' sincerely held religious beliefs.
18. Accordingly, Plaintiffs respectfully request that the Court enter an order vacating the U.S. Government Mandate and declaring that it is contrary to the First Amendment, RFRA, and the Administrative Procedure Act ("APA"), and therefore invalid. Plaintiffs further request that this Court enter an injunction prohibiting Defendants from enforcing the U.S. Government Mandate against Plaintiffs.
THE PARTIES
BISHOP MORIN AND THE DIOCESE OF BILOXI
19. The Diocese of Biloxi is a nonprofit corporation, with its principal place of business in Biloxi, Mississippi. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code ("IRC").
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20. Bishop Morin, in his capacity as Bishop of the Diocese of Biloxi, is responsible for serving more than 70,000 Catholics residing among more than 40 parishes located throughout 17 counties in southeastern Mississippi. Originally part of the Diocese of Jackson, the Diocese of Biloxi was established as a separate diocese on March 1, 1977.
21. Bishop Morin is assisted in his ministry by a staff of clergy, religious brothers and sisters, and lay people. Except where religion is a bona fide requirement for fulfilling a job requirement, the Diocese imposes no religious litmus test on its employees and employs Catholics and non-Catholics alike.
22. The Diocese of Biloxi carries out a tripartite spiritual, educational, and social service mission largely through its parishes. Through the ministry of its priests, the Diocese of Biloxi ensures the regular availability of the Sacraments to all Catholics living in or visiting the southeastern Mississippi area.
RESURRECTION CATHOLIC AND SACRED HEART SCHOOLS
23. The Catholic Church's teaching ministry within the Diocese of Biloxi is conducted largely through 14 Catholic schools, including Plaintiffs Resurrection Catholic and Sacred Heart Schools. Collectively, they serve more than 4000 students and employ more than 200 certificated teachers and school staff.
24. The Catholic schools within the Diocese of Biloxi, including Resurrection Catholic and Sacred Heart, welcome students of any or no faith. To serve as many children as possible, the Diocese of Biloxi expends substantial funds in tuition assistance programs. Approximately 13% percent ofthe students enrolled in the Diocese of Biloxi's Catholic schools are minorities. A substantial number of the students and faculty are not Catholic.
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25. The Catholic schools within the Diocese of Biloxi have established certain priorities that make them stand out from public educational institutions. They provide an education based on Christ's teaching and Catholic values, and focus on the fonnation of strong moral character, the furtherance of academic excellence, the inspiration to serve others and the motivation to achieve the students' potential in the local and the world communities. High academic standards help each student reach his or her potential. Nationally, 99.4% of students in Catholic high schools graduate.
CATHOLIC SOCIAL SERVICES
26. The social service work of the Diocese of Biloxi is perfonned through its parishes and through Catholic Social Services. The parishes maintain their own charitable efforts and programs serving the needs of their communities, and the Diocese helps to coordinate all of their social service work. Neither the Diocese of Biloxi nor its parishes asks about the religious affiliations of those it serves.
27. Catholic Social Services is a not-for-profit corporation, which is a Catholic ministry within the Diocese of Biloxi and is organized exclusively for charitable, religious, and educational purposes within the meaning ofthe IRC § 501(c)(3).
28. The mission of Catholic Social Services is to convene people to action, advocate justice in societal structures, and provide service to people in need. It is the "good works" ann of the Diocese of Biloxi. Believing that the call to social responsibility belongs to the community, Catholic Social Services "commits itself above all to a preferential option for those less fortunate. "
29. Catholic Social Services maintains offices throughout southeastern Mississippi. It does not discriminate on a religious basis in hiring its employees.
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30. Catholic Social Services serves the needy, underserved, and underprivileged in countless ways, regardless of their faith. For instance, it offers a variety of maternity services for pregnant women, including pregnancy testing, prenatal care, and counseling. It also operates a licensed adoption agency. Many ofthe services provided by Catholic Social Services are not otherwise available in Mississippi.
31. Another of Catholic Social Services' flagship programs is the Twelve Baskets Food Bank ("Twelve Baskets"), which serves 101 food pantries and soup kitchens in eight counties located in southeastern Mississippi. Last fiscal year (July 20l0-June 2011), Twelve Baskets and its partners distributed 1,870,330 pounds of food, served 597,045 individuals, and served 369,177 meals to Catholics and non-Catholics alike.
32. Similarly, the Msgr. Andrew Murray Community Outreach Office of Catholic Social Services ("Andrew Murray") provides specialized services for families living with HIV and AIDS, without regard to religion. Among its other services, Andrew Murray provides case management services and counseling to such families throughout southeastern Mississippi.
DE L'EpEE DEAF CENTER
33. De l'Epee is a not-for-profit corporation located in Biloxi, Mississippi and is affiliated with the Diocese of Biloxi. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
34. Founded in 1978 by Sister Delores Coleman, De l'Epee offers a variety of education, social, religious, and personal services throughout Mississippi for those who are deaf, hard of hearing or have other hearing-related disabilities. De l'Epee's services include afterschool tutoring and sign language classes for deaf students and interpreting services for the deaf and hearing disabled. It also conducts church services and offers spiritual counseling in
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sign language. There is no other organization in Mississippi providing this critical function for the hearing impaired.
35. De l'Epee serves people in need without regard to their religion. It does not ask and does not know whether the hearing-impaired whom it serves are Catholic.
36. De l'Epee does not inquire about the religious commitments of its applicants for employment.
BISHOP LATINO AND THE DIOCESE OF JACKSON
37. The Diocese of Jackson is a nonprofit Mississippi corporation, with its principal place of business located in Jackson, Mississippi. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
38. Bishop Latino, in his capacity as Bishop of the Diocese of Jackson, is responsible for 99 parishes in 65 counties in Mississippi. The Diocese of Jackson has been serving these communities since it was established as the original Diocese of Natchez in 1837. It currently serves a Catholic population of approximately 48,000 people. Geographically, it is the largest diocese located east of the Mississippi River.
39. Since 2003, Bishop Latino has overseen the multifaceted mission of delivering spiritual, educational, and social services to residents, both Catholic and non-Catholic alike, of the region that the Diocese of Jackson encompasses. The parishes maintain their own charitable efforts and serve an indeterminate number of persons of all faiths who are homeless, hungry, elderly, or otherwise in need of material assistance. The Diocese of Jackson does not know how many of those that it serves are Catholic.
40. The Diocese of Jackson employs approximately 900 people, the majority of whom are full-time employees. While most ofthese employees likely identify themselves as
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Catholic, faith in Christ is not required for many positions and, except where religion is a bona fide requirement for the job, the Diocese does not inquire into faith for employment positions. Consequently, the Diocese does not know whether a majority of its employees share its religious tenets.
VICKSBURG CATHOLIC SCHOOL AND ST. JOSEPH CATHOLIC SCHOOL
41. The Diocese of Jackson also serves the community through its Catholic schools, including Plaintiffs Vicksburg Catholic and St. Joseph, located in Madison, Mississippi. The Office of Catholic Schools is vested with responsibility for all of the Catholic schools within the Diocese, which include 15 elementary schools, four high schools, and various preschool programs. Collectively, these schools educate approximately 4,500 students. While all of these schools fall within the Catholic ministry of the Diocese of Jackson, Vicksburg Catholic and St. Joseph, Madison, are separately incorporated.
42. The mission of the Diocese of Jackson Catholic Schools is to "encourage[ ] and support[ ]" students to reach the fullness of their potential spiritually, intellectually, aesthetically, emotionally, socially, and physically." These Catholic schools offer an educational experience unlike any other in the area. As Cardinal Donald Wuerl said about Catholic education: "We educate people not just for exams, but for life eternal. We educate the whole person: mind, body, and spirit."
43. Like the Catholic schools of the Diocese of Biloxi, the Catholic schools of the Diocese of Jackson maintain high standards for academic excellence. Ninety-nine percent of senior high school students in the Diocese of Jackson schools graduate.
44. The Diocese of Jackson schools are open to and serve all children, without regard to the students' religion, race or financial condition. To make a Catholic education available to
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as many children as possible, the Diocese of Jackson expends substantial funds in tuition assistance programs. Approximately one-half of the students who attend the Catholic schools of the Diocese of Jackson are not Catholic, and approximately one-third are minorities.
45. The Diocese of Jackson Catholic schools, including Vicksburg Catholic and St. Joseph Madison, do not consider religious affiliation in hiring for most positions. Indeed, approximately one-half of the teachers are non-Catholics.
CATHOLIC CHARITIES
46. Catholic Charities is a nonprofit Mississippi corporation which is part of the Catholic ministry of the Diocese of Jackson. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
47. The mission of Catholic Charities is to be a visible sign of Christ's love and concern for all people. Last year, Catholic Charities directly served more than 20,000 people throughout the State of Mississippi, without regard to religious affiliation, but its mission extends to the larger community of the state, nation, and beyond.
48. Catholic Charities serves the needy, underserved, and underprivileged in countless ways, including alcohol and drug addiction services, health training ministry, mental health counseling services, children's mental health services, domestic violence shelters, pregnancy and parenting support, and refugee services.
49. Catholic Charities has demonstrated a commitment to women and children. Among other services, it provides maternity counseling to women by providing caring and hope during unplanned pregnancies by exploring choices and decision-making, adoption services, referrals for medical care, housing assistance and domestic violence shelters. It operates numerous programs for new mothers, including Born Free Primary Treatment and New
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Beginnings Transitional, both of which are residential treatment programs for pregnant and parenting women who need assistance to recover from chemical addictions.
50. Catholic Charities provides more than $7.6 million in services annually (excluding administrative and fund-raising costs) for the communities it serves.
51. Catholic Charities believes that is has been called to "minister compassionately to all, whether Catholic or not." It does not ask whether the people it serves are Catholic. In fact, Catholic Charities estimates that more than 70% of the people it serves throughout Mississippi are of non-Catholic faiths or of no faiths at all.
52. Catholic Charities has approximately 140 employees and maintains offices in Jackson, Natchez, and Vardaman, Mississippi. It also has outreach workers located throughout the Diocese of Jackson. Catholic Charities does not inquire about the religious commitments of its applicants for employment and, as a result, it does not know how many of its employees are Catholic. Catholic Charities estimates that fewer than a dozen of its employees are Catholic.
ST. DOMINIC
53. St. Dominic is a nonprofit Mississippi corporation organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
54. St. Dominic employs more than 2,200 full-time employees at St. DominicJackson Memorial Hospital and affiliated locations and programs. Except when religious affiliation is an integral requirement for a particular position, St. Dominic does not inquire about the religious commitments of its applicants for employment. As a result, it does not know how many of its employees are Catholic.
55. St. Dominic's mission includes numerous healthcare-related services. "Its outreach programs and services extend its ministry beyond [its] walls so that specific needs can
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be addressed." St. Dominic and its programs "are guided by one mission that calls them to communicate a Christian message, establish community and perform service in the name of Jesus Christ." It does not ask whether the people whom it serves are Catholic and, therefore, it does not know whether they are Catholic.
56. St. Dominic manages the St. Dominic Community Health Services Clinic (the "Health Clinic"). Since the mid 1990s, St. Dominic has recognized the need to provide healthcare services for the homeless and working poor of Jackson's inner city. The Health Clinic provides basic medical care to those who cannot afford it. In addition to primary health care services, the Health Clinic provides a variety of educational programs for children, adolescents, and adults in an effort to promote disease prevention and safety among a segment of the population that is underserved by the Government. In 2010, more than 12,000 individuals were treated at the Health Clinic.
57. St. Dominic also offers a "Care-A-Van Outreach Program" ("Care-A-Van"). With health prevention as its focus, this 42-foot mobile screening bus travels throughout Central Mississippi conducting both screenings and education programs for school-age children and the elderly. Care-A-Van targets segments of the community in which there is an identified need. In fact, the majority ofthe children screened come from families who do not have access to available preventive health care resources. Like the Health Clinic, Care-A-Van serves a segment of the population that is underserved by the Government.
58. In 2010, medical professionals in the Care-A-Van program served 9,551 children and senior adults at risk for health problems.
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THE IMPACTED HEALTH PLANS
59. The Diocese of Biloxi operates two self-insured health plans, one for its clergy and one for all other employees (collectively, the "Biloxi Plan"). It does not contract with a separate insurance company to provide health care coverage to its employees. Instead, the Diocese itself functions as the insurance company, underwriting its employees' medical costs. The Diocese contracts with Select Administrative Services to provide certain claims administration services. Plaintiffs Catholic Social Services, de l'Epee, and Resurrection Catholic and Sacred Heart Schools also offer coverage to their employees through the Biloxi Plan. The Biloxi Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the plan unless they are necessary for medically diagnosed conditions.
60. The Diocese of Jackson operates three self-insured health plans (collectively, the
"Jackson Plan"). Plaintiffs Catholic Charities, Vicksburg Catholic, and st. Joseph offer coverage
for their employees through the Jackson Plan. A third-party administrator, Blue Cross Blue Shield of Mississippi, manages benefit applications, claims processing, and payment of claims for the Jackson Plan on behalf of the Diocese of Jackson. The Jackson Plan does not cover abortion-inducing drugs, sterilization, or contraceptives.
61. Based on the legal opinion of separate counsel, Plaintiffs believe that the Biloxi Plan and Jackson Plan currently meet the Affordable Care Act's definition of a "grandfathered plan." As a result of this, each Diocese has included a statement describing its grandfathered status in its Plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
62. St. Dominic participates in a single self-insured health plan (the "St. Dominic Plan") which offers coverage to the more than 2,200 full-time employees ofthe hospital. A thirdparty administrator, Fox/Everett, Inc., manages benefit applications, claims processing, and
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payment of claims for the St. Dominic Plan. The st. Dominic Plan does not cover abortioninducing drugs, sterilization, or contraceptives.
63. St. Dominic believes that the St. Dominic Plan currently meets the Affordable Care Act's definition of a "grandfathered plan." The Plan materials include a statement describing its grandfathered status, as required by 26 C.F.R. § 54.9815-1251 T(a)(2)(ii).
64. The Biloxi Plan year begins on July 1. The Jackson Plan year begins on October 1. The St. Dominic Plan year begins on July 1.
65. Plaintiffs are currently barred - now - from altering their plans in the best interests of their employees for fear of losing the protection of their putative grandfathered plan status. For example, in order to maintain its plan's grandfathered status, St. Dominic was restricted to the maximum allowed increase for employee contributions, although it had originally planned to adopt a higher contribution rate to offset expected increases in medical costs for the current plan year. Likewise, although the Diocese of Biloxi has been notified by its claims administrator of a fee increase for its services during the upcoming plan year, the restrictions imposed by the grandfathered status criteria limit the options that the Diocese of Biloxi may consider to address this and any future increases in costs. Thus, Plaintiffs are stuck in perpetuity with providing their current plans, and forgoing substantial modifications that may benefit their plan participants and the organization as a whole, simply to avoid compromising their core religious beliefs. Without judicial review, Plaintiffs will continue to suffer hardship.
66. In any event, Plaintiffs will lose their grandfathered status in the near future for reasons that cannot be avoided. For example, the employer contribution to the premium cannot decrease by more than 5% of the cost of coverage compared to the employer contribution on March 23,2010. 26 C.F.R. §54.9815-1251T(g)(1)(v). Given the current trajectory of health
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care costs, Plaintiffs anticipate that employers will be unable to continue to pay within 5 percentage points of what they had paid in 2010, which was in many instances all or a significant percentage of the cost of coverage. Even the Government acknowledges that the number of grandfathered health plans will decrease substantially in the near future. See 75 Fed. Reg. 41,726,41,731 (July 19, 2010).
67. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the u.s. Government Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries, as described herein.
68. Thus, Plaintiffs have standing to invoke the power of this Court to redress the injuries they are presently suffering and, in addition, other imminent injuries that they are likely to suffer in the near future.
THE GOVERNMENT DEFENDANTS
69. Defendant Kathleen Sebelius is the Secretary of the u.S. Department of Health and Human Services. She is named and sued in her official capacity.
70. Defendant Hilda Solis is the Secretary of the u.S. Department of Labor. She is named and sued in her official capacity.
71. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is named and sued in his official capacity.
72. Defendant u.S. Department of Health and Human Services ("HHS") is an executive agency of the United States within the meaning ofRFRA and the APA.
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73. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
74. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
JURISDICTION AND VENUE 75. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 u.s.c. § 2000bb-1(c). 76. This Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331, 1343(a)(4), and 1346(a)(2). 77. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
STATUTORY BACKGROUND THE AFFORDABLE CARE ACT
78. On March 23,2010, Congress enacted the Affordable Care Act. See Pub. L. No. 111-148, 124 Stat. 119. The Affordable Care Act significantly amended the Public Health Service Act by establishing many new requirements for "group health plans," broadly defined as "employee welfare benefit plans" within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[] medical care ... to employees or their dependents." 42 U.S.C. § 300gg-91 (a)(l). The Act, for example, prohibits an employer's group health plan from excluding employees based on preexisting medical conditions, see Pub. L. No. 111-148 § 1201, 124 Stat. 154 (codified, as amended, at 42 U.S.C. § 300gg-3(a)), and requires the plan to provide dependent coverage to employees' children until they tum 26 years old, see Pub. L. No. 111-148 § 1001(5), 124 Stat. 132 (codified, as amended, at 42 U.S.C. § 300gg-14(a)).
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79. As relevant here, the Act requires an employer's group health plan to cover women's "preventive care." Specifically, it states 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 ... (4) with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph." Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg13(a)(4)). The prohibition on "cost sharing requirements" means that a qualified health plan must pay for the full cost of "preventive care" services, without any deductible or co-payment.
80. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23,2010." Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); 42 U.S.c. § 18011. These so-called "grandfathered health plans do not have to meet the requirements" ofthe U.S. Government Mandate, but only so long as the plans offer substantially the same benefits at substantially the same costs. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id. at 41,732.
81. Several of the Act's provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the "preventive care" required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states that "nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health
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benefits for any plan year." 42 U.S.c. § 18023(b)(1)(A)(i). And the Act left to "the issuer of a qualified health plan," not the Government, the ability "[to] determine whether or not the plan provides coverage of [abortion]." Id. § 18023(b)(1)(A)(ii). Likewise, the so-called Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat 786,1111 (2011).
82. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. The House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak expressly prohibiting the use of federal funds for abortion services. See H.R. 3962, 11lth Congo § 265 (Nov. 7,2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111 th Congo (Dec. 23,2009). The two respective bills contained many different provisions, and so they needed to be reconciled into a final bill passed by both houses. After the passage of the Senate version, however, Senator Scott Brown won a special election in Massachusetts. Any reconciled bill, therefore, was likely to face a filibuster in the Senate. To avoid defeat, congressional proponents of the Act engaged in a procedure known as "budget reconciliation," which required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it
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failed adequately to prohibit federal funding of abortion. To appease these Representatives, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24,2010). The Act was, therefore, passed on the central premise that all federal agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion services. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he promised that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
THE U.S. GOVERNMENT MANDATE 83. Less than two years later, however, Defendants promulgated the U.s. Government Mandate, subverting the Act's clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules required for the promulgation and implementation of rules of this magnitude. 84. In particular, on July 19, 2010, Defendants issued initial interim final rules (the "Interim Rules") concerning § 300gg-13(a)(4)'s requirement that group health plans provide coverage for women's "preventive care." Interim Final Rules, 75 Fed. Reg. 41,726. Defendants arbitrarily dispensed with notice-and-comment rulemaking for the Interim Rules, even though federal law had never previously required coverage of abortion-inducing drugs, sterilization procedures or contraceptives. Defendants offered as an excuse that the APA did not apply to the relevant provisions of the Affordable Care Act and that "it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed." Id. at 41,730.
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85. The Interim Rules tracked the Affordable Care Act's statutory language. It required that "a group health plan ... must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: ... (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, preventive care and screenings provided for in binding comprehensive health plan guidelines supported by the Health Resources and Services Administration." Interim Final Rules, 75 Fed. Reg. at 41,728 (codified at 45 C.F.R. § 147.l30(a)(iv)).
86. The Interim Rules, however, failed to identify the specific women's "preventive care" services that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg-13(a)(4). Instead, Defendants noted that "[t]he Department ofHHS [was] developing these guidelines and expects to issue them no later than August 1, 2011." Interim Final Rules, 75 Fed. Reg. at 41,731.
87. Defendants permitted concerned entities to provide written comments about the Interim Rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id. at 41,730.
88. In response, several groups lobbied to persuade Defendants to include various abortion-inducing drugs and contraceptives in the "preventive care" requirements for group health plans. See, e.g., http://www.plannedparenthood.org!about-us/newsroom/pressreleases/planned-parenthood-supports-initial-white-house-regulations-preventive-carehighlights-need-new-33140.htm. Other commenters noted that "preventive care" could not reasonably be interpreted to include such practices. These groups pointed out that pregnancy was not a disease that needed to be "prevented" and that a contrary view would intrude on the
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sincerely held beliefs of many religiously affiliated organizations. See, e.g., Comments of United States Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/0 gc/preventive.pdf.
89. On August 1,2011, HHS announced the "preventive care" services that group health plans would be required to cover under the u.S. Government Mandate. See HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost, available at http://www.hhs.gov/news/pressI2011pres/08120110801 b.html. Again acting without notice-and-comment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register. The press release made clear that the guidelines were developed by a non-governmental "independent" organization, the Institute of Medicine ("10M"). See id. The 10M's own report, in tum, included a dissent that suggested that the 10M's recommendations were made on an unduly short time frame dictated by political considerations and without the appropriate transparency for all concerned persons.
90. HHS's guidelines required insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See http://www.hrsa.gov/womensguidelines/. FDA-approved contraceptives include drugs that induce abortions. For example, the FDA has approved "emergency contraceptives," such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which can also induce abortions. These guidelines are in stark contrast with the central compromise necessary for passing the Affordable Care Act and President Obama's promise to protect religious liberty.
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FINES AND PENALTIES
91. Violations of the Affordable Care Act can subject an employer and an insurer to substantial fines.
92. Under the Internal Revenue Code, certain employers who fail to offer "full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan" will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.c. § 4980H(a), (c)(l).
93. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $1 00 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Congo Research Serv., RL 7-5700, Enforcement ofthe Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this assessment applies to employers who violate the "preventive care" provision ofthe Affordable Care Act).
94. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $1 00 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Congo Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the "preventive care" provision of the Affordable Care Act).
95. ERISA may provide for additional fines. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1 )(B); see also Congo Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Congo Research Serv., RL 7-5700
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(asserting that these fines can apply to employers and insurers who violate the "preventive care" provision ofthe Affordable Care Act).
THE EXEMPTION
96. Two days after HHS announced the guidelines, on August 3,2011, Defendants issued amendments to the July 2010 Interim Rules (the "Amended Rule"). See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3,2011). Again, Defendants issued the Amended Rule without notice-and-comment rulemaking on the same claimed basis they had provided for bypassing the APA with the July 2010 Interim Rules. See id. at 46,624.
97. When announcing the Amended Rule, Defendants ignored the view that "preventive care" should exclude abortion-inducing drugs, sterilization procedures and contraceptives that do not prevent disease. Instead, they noted only that "commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom." ld. at 46,623. They then sought "to provide for a religious accommodation that respect[ed]" only "the unique relationship between a house of worship and its employees in ministerial positions." ld.
98. Specifically, the regulatory Exemption ignored definitions of religious employers already existing in federal law. Instead, the Exemption covered only those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals of the same religion. Taken on its face, at least some of the Plaintiffs would appear not to fit these criteria. The Exemption provides in full:
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(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(l)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a "religious employer" is an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
Id. at 46,626 (codified at 45 C.F.R. § 147.l30(a)(iv)(A)-(B)).
99. The Exemption appears to exclude the health plans of religiously affiliated
employers that do not discriminate in providing charitable, educational, and employment
opportunities to all persons, regardless of religious faith.
100. Moreover, under the Exemption the Government assumes exclusive and
discretionary authority to determine whether an organization was sufficiently "religious" to
qualify for the Exemption -- an unconstitutionally invasive inquiry into an organization's
religious beliefs and practices. For example, the Government must determine the "religious
tenets" of an organization and the individuals it employs and serves; it must determine whether
the organization "primarily" employs and "primarily" serves individuals who "share" the
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organization's "religious tenets"; and it must determine whether "the purpose" of the organization is the "inculcation of religious values."
101. When issuing the Amended Rule, Defendants did not explain why they created such a narrow religious Exemption. Nor did Defendants address why they refuse to incorporate the other "longstanding Federal laws to protect conscience" that President Obama promised to respect. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24,2010). ERISA, for example, has long excluded "church plans" from its requirements. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act itself excludes from its requirement that all individuals maintain minimum essential coverage those individuals with religious objections to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2).
102. Moreover, Defendants did not address whether they have a compelling interest to force religiously-affiliated employers to include services in their health plans that are contrary to their religious beliefs. They failed to consider whether they could achieve their views of sound policy in a more religiously accommodating manner.
103. Subsequently, the Defendants permitted parties to provide comments to the Amended Rule, which gave the appearance that Defendants were open to good-faith discussion. Numerous organizations expressed the same concerns that they had before, noting that the mandated services should not be viewed as "preventive care." They also explained that the Exemption was "narrower than any conscience clause ever enacted in federal law and narrower than the vast majority of religious exemptions from state contraceptive mandates." Comments of United States Conference of Catholic Bishops, at 1-2 (Aug. 31, 2011), available at http://www .usccb. orglabout/general-counsellrulemakinglupload/comments-to-hhs-onpreventive-services-2011-08.pdf. In addition, the Diocese of Jackson submitted its own
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comments emphasizing that the Exemption posed "a very real risk that the Diocese could soon be forced to choose from three untenable options: offer contraception coverage, limit its ministries to serving Catholics only, or stop offering insurance to its employees altogether." Comments of Catholic Diocese of Jackson, at 1 (Sept. 29, 2011).
THE TEMPORARY SAFE HARBOR
104. Three months later, allegedly "[a]fter evaluating [the new] comments" to the Amended Rule, Defendants gave their response. Defendant Sebelius issued a short, Fridayafternoon press release, announcing with little analysis or reasoning that HHS had decided to keep the Exemption unchanged, but had also created a temporary enforcement safe harbor whereby "[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1,2013, to comply with the new law." See HHS, A Statement by u.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/20l2pres/01/20120120a.html. As noted by Cardinal Timothy Dolan, the release effectively gave objecting religious institutions "a year to figure out how to violate [their] consciences."
105. On February 10, 2012, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had corne up with a "solution" by which the insurance companies of religious organizations that object to providing abortion-inducing drugs, sterilization, or contraception services "will be required to directly offer ... contraceptive care [to plan participants] free of charge." White House, Fact Sheet: Women's Preventive Services and Religious Institutions (Feb. 10,2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
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106. Defendants later explained in the Federal Register that they "plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing." Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15,2012). Defendants further asserted that the rulemaking would "achieve the same goals for self-insured group health plans." Id.
107. Defendants then "finalize[d], without change," the Amended Rule containing the religious employer Exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced "temporary enforcement safe harbor" for "non-exempted, non-profit religious organizations with religious objections to [contraceptive] coverage." Id. at 8725; Ctr. for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10,2012), available at http://cciio.cms.gov/resources/files/Files2/021 02012120120210Preventive-Services-Bulletin. pdf.
108. On March 16,2012, Defendants issued an Advance Notice of Proposed Rulemaking ("ANPRM") seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an "independent entity" to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage "for free," and in any event the Biloxi Plan and Jackson Plan are self-insured. Moreover, even ifthese proposals were ever adopted, they would still require religious organizations to pay for and/or facilitate access to the objectionable services. Finally, it
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is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
109. The ANPRM does not alter the existing u.s. Government Mandate. Rather, it
merely states a non-binding intention to do so at some point in the future. But a promise to modify the law, whether issued by the White House or in the form of an ANPRM, does not, in fact, alter the law. The U.S. Government Mandate is and remains the current, operative law. Plaintiffs have until the start ofthe next plan year following August 1,2013, to come into
compliance with the u.s. Government Mandate.
THE U.S. GoVERNMENT MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS' RELIGIOUS BELIEFS 110. One of the basic freedoms central to our society and legal system is that
individuals and institutions are entitled to freedom of conscience and religious practice. As noted by Thomas Jefferson, "[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
111. The u.s. Government Mandate seeks to require Plaintiffs to pay for, provide,
and/or facilitate access to services that are contrary to their core religious convictions. The U.S. Government Mandate thus substantially burdens Plaintiffs' firmly held religious beliefs and practices.
112. The u.s. Government Mandate also seeks to compel Plaintiffs to fund related
"patient education and counseling for all women with reproductive capacity." It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
113. On February 8,2012, Bishop Morin ofthe Diocese of Biloxi wrote a letter to his parishioners noting that it was "outrageous that the U.S. government would attempt to force the Church to pay for procedures and drugs that violate [Catholic] belief in the sacredness of human
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life." He urged his congregation: "We cannot sit by in silence. We must be clear that we cannot comply and will not comply." Letter from Bishop Morin regarding HHS Mandate (Feb. 8,2012), available at http://www.priestsforlife.orglarticles/4009-bishop-morins-Ietter-regarding-hhsmandate.
114. Similarly, on February 15, 2012, Bishop Latino ofthe Diocese ofJackson wrote a letter to his parishioners, describing the u.S. Government Mandate as "an unprecedented federal interference in the religious liberty and freedom of conscience of the Catholic community and the Diocese." Letter from Bishop Latino to Diocese of Jackson Parishioners (Feb. 15,2012) (available at http://www.jacksondiocese.orgidiocese/filesI2012%20HHS%202.15.2012.pdf). Bishop Latino noted that the Exemption does not "exempt Catholic charities, schools, universities, or hospitals," noting that those institutions are "vital to the mission of the Church." Id.
115. The Government does not give Plaintiffs the option of avoiding the u.S. Government Mandate by leaving the health care market. Eliminating their employee group health plans might expose Plaintiffs to substantial fines or penalties. Meanwhile, Plaintiffs' employees would be left scrambling for health insurance.
116. Nor would the Proposed Accommodation - even if it were law, which it is notrelieve Plaintiffs from the unconscionable position in which the u.S. Government Mandate currently puts them.
117. First, the promised "accommodation" would not alter the fact that Plaintiffs would be required to facilitate practices that run directly contrary to their beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are
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viewed as intrinsically immoral. It also requires them to avoid actions thatfacilitate those practices.
118. Second, any requirement that insurance companies or other independent entities provide preventive services "free of charge" is illusory. For-profit entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the Proposed Accommodation, doctors will still have to be paid to prescribe the objectionable services and drug companies and pharmacists will still have to be paid for providing them.
119. Third, the "accommodation" does not affect the narrow Exemption applicable to "religious employers." Before they may even qualify for the narrow Exemption, religious organizations must submit to an invasive governmental inquiry conducted by the Government, under the direction of Secretary Sebelius, regarding their purpose and religious beliefs. Requiring Plaintiffs to submit to this government-conducted test to determine if Plaintiffs are sufficiently religious is inappropriate and substantially burdens their firmly held religious beliefs.
120. It is unclear how the Government defines or will interpret "purpose." 121. It is unclear how the Government defines or will interpret vague terms, such as "primarily," "share," and "religious tenets." 122. It is unclear how the Government will ascertain the "religious tenets" of an organization, those it employs, and those it serves. 123. It is unclear how much overlap the Government will require for religious tenets to be "share[d]."
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124. Any attempt by Plaintiffs to qualify for the narrow religious employer Exemption

by restricting their charitable and educational mission to Catholics only would have devastating

effects on the communities Plaintiffs serve.
125. Finally, as noted above, the u.s. Government Mandate burdens Plaintiffs'

religious beliefs right now. Plaintiff cannot wait until August 1,2013 to determine how to
respond to the u.s. Government Mandate.
126. In short, while the President claimed to have "fTou]nd a solution that works for

everyone" and that ensures that "[r]eligious liberty will be protected," his Proposed

Accommodation does neither.

u.s. THE

GoVERNMENT MANDATE Is NOT A NEUTRAL LAW OF GENERAL APPLICABILITY

127. The u.s. Government Mandate is not a neutral law of general applicability. It

offers multiple exemptions from its requirements that employer-based health plans include or

facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education

and counseling. It was, moreover, implemented by and at the behest of individuals and

organizations who expressly disagree with certain religious beliefs regarding abortion,

sterilization, and contraception, and thus targets religious organizations for disfavored treatment.

128. The Government has also crafted the Exemption to favor certain religions over

others. It applies only to plans sponsored by those religious organizations that have, as their

"purpose" the "inculcation of religious values"; that "primarily" serve only individuals that share

their "religious tenets"; and that "primarily" employ such individuals. 45 C.F.R.

§ 147.130(a)(iv)(B).

129. While the Exemption may protect some of the Defendants' favored religious

organizations, it does not appear to protect the many Catholic and other religious organizations

that educate students, provide vital services to the needy, and employ individuals of all faiths.

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Yet, because these organizations do not consider religious affiliation in hiring for most positions, or consider the religious affiliation of those they serve, they appear to be denied the Exemption. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of all, or no, faiths.
130. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5,2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Secretary Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Secretary Sebelius declared, among other things, that "we are in a war," presumably with those entities, like Plaintiffs, whose beliefs differ from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser.
131. Consequently, on information and belief, Plaintiffs allege that the purpose of promulgating the U.S. Government Mandate, including its overly-narrow Exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
THE U. S. GoVERNMENT MANDATE Is NOT THE LEAST RESTRICTIVE MEANS OF
FuRTHERING A COMPELLING GoVERNMENTAL INTEREST 132. The U.S. Government Mandate is not narrowly tailored to promote a compelling governmental interest. 133. The Government has no compelling interest in forcing Plaintiffs to violate their firmly held religious beliefs by requiring them to provide, pay for, or facilitate access to
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abortion-inducing drugs, sterilizations, and contraceptives. The Government itselfhas relieved other employers from this requirement by exempting plans of employers it deems to be sufficiently religious. These services are already widely available in the United States, and the U.S. Supreme Court has held that individuals have a constitutional right to them.
134. Even assuming that the interest was compelling - which it is not - the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS or though other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous federal and state statutes. The Government cannot demonstrate that requiring Plaintiffs to violate their religious beliefs is the least restrictive means of furthering its claimed interest.
135. The U.S. Government Mandate, moreover, burdens religious freedom while simultaneously undermining the very interests it ostensibly tries to promote by interfering with entities (like Plaintiffs) that serve our society's neediest individuals.
THE U.S. GOVERNMENT MANDATE AND EXEMPTION PRODUCE AN EXCESSIVE
ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION
136. The U.S. Government Mandate's religious employer Exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
137. In order to determine whether a religious organization qualifies for the Exemption, the Government would have to identify the organization's "religious tenets" and determine whether "the purpose" of the organization is to "inculcate" those tenets.
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138. The Government would then have to conduct an inquiry into the practices and beliefs ofthe individuals that the organization ultimately employs and educates.
139. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are "share[d]."
140. Regardless of outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into an organization's religious mission.
141. The Exemption is based on an improper Government determination that "inculcation" is the only legitimate religious purpose.
142. The Government should not base exemption on an assessment of the "purity" or legitimacy of an institution's religious purpose.
143. By limiting that legitimate purpose to "inculcation," at the expense of other
sincerely held religious purposes, the u.s. Government Mandate and Exemption interfere with
religious autonomy. Religious institutions have the right to determine their own religious purpose, including religious purposes broader than "inculcation," without Government interference and without losing their religious liberties.
144. Defining religion based on employing and serving primarily people who share the organization's religious tenets directly contradicts Plaintiffs sincerely held religious beliefs regarding their religious mission to serve all people, regardless of whether or not they share the same faith.
145. It is unclear whether, if an entity qualifies as a "religious employer" for purposes of the Exemption, any affiliated corporation that provides coverage to its employees through the exempt entity's group health plan would also receive the benefit of the Exemption. Certain
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Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
146. It is unclear whether, if the Biloxi and Jackson Diocese Plaintiffs qualify as "religious employer[s]" under the Exemption to the U.S. Government Mandate, Catholic Charities, Catholic Social Services, de l'Epee, Vicksburg Catholic, St. Joseph, Resurrection Catholic, and Sacred Heart Schools will also be eligible to receive the benefit of the Exemption. Because St. Dominic does not offer insurance through either ofthe Dioceses, however, it would not be entitled to receive the benefit of the Exemption.
THE U.S. GoVERNMENT MANDATE Is CAUSING PRESENT IIARDSHIP 147. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiffs that merits judicial relief now. 148. Health plans cannot and do not arise overnight. A number of analyses, negotiations and decisions must occur each year before Plaintiffs can develop, procure and offer to their employees a health benefits package. For example, the Diocese of Jackson, while a selfinsured employer, must consult and negotiate with its third-party administrator to determine the cost of the products and services it wants to offer to its employees and the employees of affiliated entities. The process of determining the health care package for a plan year requires a substantial amount of time before the plan year actually begins. 149. The multiple levels of uncertainty swirling around the U.S. Government Mandate and the ANPRM make the already lengthy process of preparing a compliant health benefits package even more complex. 150. For example, if Plaintiffs decide that the only plausible option is to attempt to qualify as a "religious employer" under Exemption, they will need to undertake a major overhaul of their corporate structures, hiring practices, and the scope of their programming. Such a
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process could take years. And, if they are forced to employ only Catholics so as to come within the confines ofthe Exemption, their hiring options would be greatly diminished. Indeed, it would be impossible for Plaintiffs to find a qualified workforce under such restrictions, given the number of Catholics residing in Mississippi and surrounding areas.
151. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to annual government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
152. Moreover, given the lack of proper notice-and-comment rulemaking regarding the guidelines for "preventive care" services, and the Amended Rule and Exemption, Plaintiffs have no available administrative remedy. And, in any event, further administrative efforts to obtain relief would be futile since the relevant agencies and officers lack the authority to resolve the statutory and constitutional claims at issue here, among other reasons.
153. The Mandate may require an immediate and significant change in the Plaintiffs' conduct of their affairs. Plaintiffs need judicial relief now in order to prevent the serious, ongoing hann that the U.S. Government Mandate is already imposing on them.
154. Accordingly, Plaintiffs seek an order vacating the U.S. Government Mandate and declaring that it violates the First Amendment, RFRA, and the APA. Plaintiffs further request that the Court enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against them. Absent such a declaration of rights and award of injunctive relief by this Court, Plaintiffs have no adequate remedy at law.
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CAUSES OF ACTION
COUNT I
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE
IN VIOLATION OF RFRA 155. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 154 hereinabove. 156. RFRA prohibits the Government from substantially burdening an entity's exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden (i) furthers a compelling governmental interest, and (ii) is the least restrictive means of furthering that interest. 157. RFRA protects organizations as well as individuals from substantial Governmentimposed burdens on religious exercise. 158. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 159. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to Plaintiffs' core religious beliefs. 160. In order to qualify for the Exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive governmental inquiry into their religious beliefs. 161. The U.S. Government Mandate thereby substantially burdens Plaintiffs' exercise of religion. 162. Defendants have no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate. 163. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering any compelling governmental interest.
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164. By enacting and threatening to enforce the u.s. Government Mandate against
Plaintiffs, Defendants have violated RFRA. 165. Plaintiffs have no adequate remedy at law.
166. The u.s. Government Mandate and its impending enforcement impose an
immediate and ongoing harm on Plaintiffs that warrants relief. COUNT II
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT
167. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 154 hereinabove.
168. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion.
169. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise.
170. The u.S. Government Mandate requires Plaintiffs to provide, pay for, and/or
facilitate practices and speech that are contrary to their religious beliefs.
171. In order to qualify for the Exemption to the u.S. Government Mandate, Plaintiffs
must submit to an intrusive governmental inquiry into their religious beliefs.
172. The u.S. Government Mandate (including the Exemption) substantially burdens
Plaintiffs' exercise of religion.
173. The u.S. Government Mandate is not a neutral law of general applicability,
because it is riddled with exemptions. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, contraception, sterilization, and related education and counseling.
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174. The U.S. Government Mandate is not a neutrallaw of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs' exercise of religion.
175. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
176. Defendants have no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
177. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
178. By enacting and threatening to enforce the U.S. Government Mandate, Defendants have burdened Plaintiffs' religious exercise in violation ofthe Free Exercise Clause ofthe First Amendment.
179. Plaintiffs have no adequate remedy at law. 180. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III
EXCESSIVE ENTANGLEMENT IN VIOLATION OF THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT
181. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 154 hereinabove.
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182. The Free Exercise and Establishment Clauses of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government.
183. This prohibition on excessive entanglement protects organizations as well as individuals.
184. The Exemption applies only after the Government conducts an invasive investigation into an organization's religious beliefs, including whether the organization's "purpose" is the "inculcation of religious values" and whether the organization "primarily employs" and "primarily serves" individuals who share the organization's religious tenets.
185. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and discretionary judgments regarding questions of religious belief or practice.
186. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
187. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise and the Establishment Clauses of the First Amendment.
188. The U.S. Government Mandate is therefore unconstitutional and invalid. 189. Plaintiffs have no adequate remedy at law. 190. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV
RELIGIOUS DISCRIMINATION IN VIOLATION OF THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT
191. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 154 hereinabove.
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192. The Free Exercise Clause and the Establishment Clause of the First Amendment require the equal treatment of all religious faiths and institutions, without discrimination or preference.
193. This requirement of equal treatment protects organizations as well as individuals. 194. The U.S. Government Mandate's narrow Exemption for certain "religious employers" but not others discriminates on the basis of religious views or religious status. 195. The U.S. Government Mandate's definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities' religious beliefs or practices. 196. The U.S. Government Mandate's definition of religious employer furthers no compelling governmental interest. 197. The U.S. Government Mandate's definition of religious employer is not narrowly tailored to further any compelling governmental interest. 198. The enactment and impending enforcement ofthe U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 199. Plaintiffs have no adequate remedy at law. 200. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V
INTERFERENCE IN MATTERS OF INTERNAL CHURCH GoVERNANCE IN VIOLATION OF
THE FREE EXERCISE AND ESTABLISHMENT CLAUSES OF THE FIRST AMENDMENT AND RFRA 201. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1
through 154 hereinabove.
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202. The Free Exercise and Establishment Clauses protect the freedom of religious organizations to decide for themselves, free from governmental interference, matters of church governance as well as those of faith and doctrine.
203. The Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine.
204. Moreover, the Government may not interfere with a religious organization's internal decision if that interference would affect the underlying faith and mission ofthe organization itself.
205. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 206. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral and prohibits Catholic organizations from furnishing, condoning, or facilitating those practices. 207. Plaintiffs have abided and must continue to abide by the decision ofthe Catholic Church on these issues. 208. The Government may not interfere with, or otherwise question, the final decision of the Catholic Church that its religious organizations must abide by these core beliefs and teachings. 209. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion-inducing drugs, sterilization, or contraception.
210. The u.s. Government Mandate interferes with Plaintiffs' internal decisions
concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic teachings and beliefs.
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211. The u.s. Government Mandate's interference with Plaintiffs' internal decisions
affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
212. Because the u.s. Government Mandate interferes with the internal decision-
making of Plaintiffs in a manner that affects their faith and mission, it violates the Establishment and Free Exercise Clauses of the First Amendment.
213. Plaintiffs have no adequate remedy at law.
214. The u.s. Government Mandate and its impending enforcement impose an
immediate and ongoing harm on Plaintiffs that warrants relief. COUNT VI
COMPELLED SPEECH IN VIOLATION OF THE FREE SPEECH CLAUSE OF THE FIRsT AMENDMENT
215. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 154 hereinabove.
216. The First Amendment prohibits the Government from compelling affirmation of any religious or ideological proposition that the speaker finds unacceptable.
217. The First Amendment protects organizations as well as individuals against compelled speech.
218. Expenditures are a form of speech protected by the First Amendment. 219. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious beliefs. 220. The U.S. Government Mandate compels Plaintiffs to provide health care plans to its employees that include or facilitate coverage of practices that violate their religious beliefs.
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221. The U.S. Government Mandate compels Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices.
222. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs publicly to subsidize or facilitate activity and speech that are contrary to their religious beliefs.
223. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
224. The U.S. Government Mandate furthers no compelling governmental interest. 225. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 226. Plaintiffs have no adequate remedy at law. 227. The U.S. Government Mandate imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII
FAILURE TO CONDUCT NOTICE-AND-COMMENT RULEMAKING AND IMPROPER
DELEGATION IN VIOLATION OF THE APA 228. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 154 hereinabove. 229. The Affordable Care Act expressly delegates to an administrative agency within HHS discretionary responsibility for establishing guidelines concerning the "preventive care" that group health plans and health insurance issuers must provide. 230. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines. Proposed regulations were required to be published in the Federal Register and interested
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persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
231. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
232. Defendants, instead, improperly delegated their discretionary governmental responsibilities for issuing preventive care guidelines to a non-governmental entity, the 10M.
233. The 10M did not permit or provide for the broad public comment otherwise required under the APA. Indeed, the dissent to the 10M report noted both that the 10M conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
234. Within two weeks of the 10M issuing its guidelines, HHS issued a press release announcing that the 10M's guidelines were required under the Affordable Care Act.
235. Defendants have never explained why they failed to enact these "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
236. Defendants also failed to engage in notice-and-comment rulemaking when issuing the Interim and Amended Rules incorporating the guidelines.
237. Defendants' stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute "good cause." Providing proper public notice and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
238. Defendants failed to observe a procedure required by law and violated 5 U.S.C. § 706(2)(D) by enacting the "preventive care" guidelines and the Interim and Amended Rules
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through improper delegation to a non-governmental entity and without engaging in notice-andcomment rulemaking.
239. Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
240. Plaintiffs have no adequate remedy at law.
241. The enactment ofthe u.s. Government Mandate without following the
procedures required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY
242. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 154 hereinabove.
243. The United States Constitution vests all legislative power in the United States Congress. Congress may not delegate its policymaking authority to an executive agency in the absence of an intelligible principle that limits and guides the agency's exercise ofthat authority.
244. The Affordable Care Act expressly delegates authority to Defendant HHS to establish "comprehensive guidelines" for the services that group health plans and health insurance issuers must provide as "preventive care" under the Act.
245. The Act does not contain an intelligible principle or any other identifiable standard to which HHS is directed to confonn in deciding which services do and do not qualify as "preventive care."
246. For example, and as illustrated by the U.S. Government Mandate and Exemption, the Act purports to bestow unfettered discretion on HHS to mandate coverage for medical services and procedures as "preventive care" without any basis for concluding that the those
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services and procedures actually "prevent" a disease or adverse medical condition. Also, HHS has used its unbounded discretion under the Act to claim for itself the authority to decide which entities will be subject to the U.S. Government Mandate and which will qualify for the Exemption.
247. The Act's delegation of legislative authority violates the separation of powers principles ofthe United States Constitution.
248. Plaintiffs have no adequate remedy at law. 249. The enactment and impending enforcement of the U.S. Government Mandate pursuant to this unconstitutional delegation of authority impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IX
ARBITRARY AND CAPRICIOUS ACTION IN VIOLATION OF THE APA
250. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 154 hereinabove.
251. The APA condemns agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.c. § 706(2)(A).
252. The APA further requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made.
253. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it.
254. A court reviewing an agency action may not supply a reasoned basis that the agency itself failed to offer.
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255. Defendants failed to consider the suggestion of many commenters that abortion, contraceptive, and sterilization services could not be viewed as "preventive care."
256. Defendants failed adequately to take into account voluminous comments suggesting that the scope of the Exemption should be broadened.
257. Defendants did not articulate a reasoned basis for their arbitrary actions by drawing a connection between facts found and the policy decisions it made.
258. Defendants failed to consider or incorporate the use of broader religious exemptions in many other federal laws and regulations.
259. Defendants' promulgation of the u.s. Government Mandate violated the APA.
260. Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
261. Plaintiffs have no adequate remedy at law. 262. The U.S. Government Mandate imposes an immediate and ongoing harm on the Plaintiffs that warrants relief.
COUNT X ACTING ILLEGALLY IN VIOLATION OF THE APA 263. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 though 154 hereinabove. 264. The APA requires that all Government agency action, findings, and conclusions be made "in accordance with law." 265. The U.S. Government Mandate and its Exemption are illegal and therefore in violation of the APA. 266. The Weldon Amendment states that "[nlone of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be
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made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
267. The Affordable Care Act states that "nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." 42 U.S.c. § 18023(b)(1 )(A)(i). It adds that "the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]" Id. § 18023(b)(1 )(A)(ii).
268. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be forced to provide such plans.
269. The u.S. Government Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing drugs, contraception, sterilization, and related education. By issuing the u.S. Government Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
270. The u.S. Government Mandate violates RFRA. 271. The U.S. Government Mandate violates the First Amendment. 272. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.c. § 706(2)(A).
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273. Plaintiffs have no available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
274. Plaintiffs have no adequate remedy at law. 275. The enactment of the U.S. Government Mandate is not in accordance with law and its impending enforcement imposes an immediate and ongoing harm on Plaintiffs that warrants relief. WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate as to Plaintiffs; 6. Award Plaintiffs their attorneys' and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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Respectfully submitted, this the 21st day of May, 2012.

Gulfport, Mississippi 39502-0636 Telephone: (228) 586-0933 kjnlaw1@att.net

Counsel for Plaintiffs the Catholic Diocese of Biloxi, Inc., the Most Reverend Roger P. Morin, Bishop and President ofthe Catholic Diocese of Biloxi, Inc. and as Trustee for and on behalfof the Resurrection Catholic School and the Sacred Heart Catholic School; Catholic Social and Community Services, Inc.; and De L 'Epee DeafCenter, Inc.

and

J.cannods E)f{)~

Stephen

Bar No. 8345)

BRUNINI, GRANTHAM, GROWER &

HEWES,PLLC

190 East Capitol Street, Suite 100

Jackson, Mississippi 39205

Telephone: (601) 960-6890

Facsimile: (601) 960-6902

scarmody@brunini.com

Counsel for Plaintiffs the Catholic Diocese of Jackson, the Most Reverend Joseph N Latino, Bishop and ChiefExecutive Officer ofthe Catholic Diocese ofJackson; Vicksburg Catholic School, Inc.; St. Joseph Catholic School; Catholic Charities Inc.; and St. Dominic-Jackson Memorial Hospital

and

54

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Case 1:12-cv-00158-HSO-RHW Document 1 Filed 05/21/12 Page 55 of 55
David M. Monde (pro hac vice application to befiled)
E. Kendrick Smith (pro hac vice application to befiled)
Janine Cone Metcalf (pro hac vice application to befiled)
Jason T. Burnette (pro hac vice application to befiled)
Rebecca M. Thornhill (pro hac vice application to befiled)
JONES DAY 1420 Peachtree Street, N.E. Suite 800 Atlanta, Georgia 30309 Telephone: (404) 581-3939 Facsimile (404) 581-8330 dmmonde@jonesday.com eksmith@jonesday.com jmetcalf@jonesday.com jtburnette@jonesday.com rmthornhill@jonesday.com Counsel for all Plaintiffs
55

 
 Case 1:12-cv-00158-HSO-RHW Document 63 Filed 12/20/12 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

THE CATHOLIC DIOCESE OF BILOXI, §

INC., et al.

§

§

v.

§

§

KATHLEEN SEBELIUS, et al.

§

PLAINTIFFS Civil No. 1:12CV158-HSO-RHW
DEFENDANTS

FINAL JUDGMENT This matter came on to be heard on the Motion to Dismiss [15] filed by Defendants on August 6, 2012. The Court, after a full review and consideration of the Motion to Dismiss [15], the related pleadings, the record as a whole, and the relevant legal authorities, finds that in accord with its Memorandum Opinion and Order entered herewith, IT IS, ORDERED AND ADJUDGED, that this action is hereby DISMISSED WITHOUT PREJUDICE. SO ORDERED AND ADJUDGED, this the 20th day of December, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

 
 Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

THE CATHOLIC DIOCESE OF BILOXI, §

INC., et al.

§

§

v.

§

§

KATHLEEN SEBELIUS, et al.

§

PLAINTIFFS Civil No. 1:12CV158-HSO-RHW
DEFENDANTS

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR ORAL ARGUMENT [28], GRANTING DEFENDANTS’ MOTION TO DISMISS [15], AND DISMISSING CASE WITHOUT PREJUDICE BEFORE THE COURT are the Motion to Dismiss [15] pursuant to Federal
Rule of Civil Procedure 12(b)(1) filed by Defendants Kathleen Sebelius, Hilda Solis, Timothy Geithner, U.S. Department of Health and Human Services, U.S. Department of Labor, and U.S. Department of Treasury, on August 6, 2012, and the Motion for Oral Argument [28] filed by Plaintiffs The Catholic Diocese of Biloxi, Inc., Catholic Social and Community Services, Inc., De L’Epee Deaf Center, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc., St. Joseph Catholic School, Catholic Charities, Inc., and St. Dominic-Jackson Memorial Hospital, on October 11, 2012. Defendants’ Motion to Dismiss [15] is fully briefed. Defendants have not responded to the Motion for Oral Argument [28]. With the Court’s permission, the American Center for Law and Justice and Seventy-Nine Members of the United States Congress filed an Amici Curiae Brief [56] on November 26, 2012, in support of Plaintiffs’ opposition to Defendants’ Motion to Dismiss [15]. Plaintiffs [59] and Defendants [52], [57], [58], have filed Notices of

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Supplemental Authority related to the pending Motion to Dismiss. After consideration of the parties’ submissions, the record, and the relevant
legal authorities, and for the reasons discussed below, the Court finds that the Motion for Oral Argument [28] should be denied. Because the Defendants represent that the regulations challenged by Plaintiffs in this case are in the process of being amended, this dispute is not yet ripe for judicial review, and the Motion to Dismiss [15] should be granted. The Court will dismiss this case, without prejudice.
I. BACKGROUND In their Complaint [1], filed May 21, 2012, Plaintiffs describe themselves as “Catholic religious entities, which provide a wide range of spiritual, educational, social and medical services to residents, both Catholic and non-Catholic alike, throughout the State of Mississippi.” Compl. [1], at ¶ 2. They state that their “work is in every respect guided by and consistent with Roman Catholic beliefs.” Id. at ¶ 7. According to the Complaint, “artificial interference with the creation of life, including through abortion, sterilization, or contraception, is contrary to core Catholic doctrine.” Id. at ¶ 10. Plaintiffs contend that certain rules promulgated by Defendants as part of the 2010 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010) [“Affordable Care Act”], “would require many Catholic and other religious organizations to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and
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contraception in violation of their sincerely held religious beliefs.” Compl. [1], at ¶ 11. They relate that these rules contain a “narrow exemption” for certain “religious employers,” but that Plaintiffs cannot determine whether they qualify for the exemption, or whether the Government will determine that they do. Id. at ¶¶ 11–12. Because they provide services to persons in need, without regard to religious affiliation, Plaintiffs assert that it is unclear whether they will qualify as “religious employers” under the exemption. Id. at ¶ 13. Plaintiffs further object to the “intrusive, arbitrary, and misguided governmental investigation into Plaintiffs’ religious missions.” Id. at ¶ 16. They assert violations of the First Amendment of the Constitution of the United States, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. [“RFRA”], and the Administrative Procedure Act, 5 U.S.C. § 551, et seq. [“APA”]. Id. at ¶ 18.
Plaintiffs operate six different health plans. They believe that these plans currently satisfy the Affordable Care Act’s definition of a “grandfathered plan.” Compl. [1], at ¶¶ 59–63. However, they allege they are now barred from altering their plans, for fear of losing the protection of their “putative grandfathered plan status.” Id. at ¶ 65. Plaintiffs assert that they “are stuck in perpetuity with providing their current plans, and forgoing substantial modifications that may benefit their plan participants and the organization as a whole, simply to avoid compromising their core religious beliefs.” Id. Plaintiffs fear that they “will lose their grandfathered status in the near future for reasons that cannot be avoided.” Id. at ¶ 66.
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 4 of 15
The Complaint indicates that a temporary “safe harbor” provision has been promulgated, which provides that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” Compl. [1], at ¶ 104 (quoting HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/ press/2012pres/01/20120120a.html). However, Plaintiffs complain that they will be required to comply with the rules by the start of the next plan year following August 1, 2013. Id. at ¶ 109.
The Complaint [1] charges that Defendants have violated the RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, and the APA, and claims that the Affordable Care Act unconstitutionally delegates legislative authority and violates the separation of powers principles of the United States Constitution. Compl. [1], at ¶¶ 155–275. Plaintiffs ask the Court to enter a declaratory judgment that the rules in question violate Plaintiffs’ rights under RFRA and the First Amendment, and that they were promulgated in violation of the APA. Id. at p. 53. They also request an injunction prohibiting Defendants from enforcing the rules against Plaintiffs, and an order vacating the rules as to Plaintiffs. Id.
Defendants now move the Court to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(1). Defs.’ Mot. to Dismiss [15], at p. 1. They contend that Plaintiffs lack standing to pursue these claims. Defs.’ Mem. in Supp. of Mot. to Dismiss [16],
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at pp. 11–14. Defendants also argue that dismissal is warranted because this dispute is not yet ripe for judicial review. Id. at pp. 15–22.
II. DISCUSSION A. Motion for Oral Argument [28]
Defendants filed their Motion to Dismiss [15] on August 6, 2012. Plaintiffs filed their Response [22] and supporting Memorandum [23] on August 27, 2012. Defendants filed their Rebuttal [27] on September 24, 2012. None of these documents requested oral argument. On October 11, 2012, Plaintiffs filed the present Motion for Oral Argument [28]. They request oral argument and ask the Court to set a hearing date. Pls.’ Mot. for Oral Argument [28], at pp. 1–3.
Local Uniform Rule 7(b)(6)(A) provides that [t]he court will decide motions without a hearing or oral argument unless otherwise ordered by the court on its own motion or, in its discretion, upon written request made by counsel in an easily discernible manner on the face of the motion or response. L.U. CIV. R. 7(b)(6)(A). The Court does not find that oral argument would be necessary or helpful in resolving Defendants’ Motion to Dismiss. Accordingly, Plaintiffs’ Motion for Oral Argument [28] will be denied. B. Motion to Dismiss [15] Defendants contend that Plaintiffs lack standing, and that this case is not ripe for judicial review. Defs.’ Mem. in Supp. of Mot. to Dismiss [16], at pp. 11–22. These arguments go to whether the Complaint presents an “actual controversy,” a requirement imposed by Article III of the Constitution. See, e.g., Roark & Hardee LP v. City of Austin, 522 F.3d 533, 541–42 (5th Cir. 2008).
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 6 of 15
1. Legal Standard A motion to dismiss pursuant to Rule 12(b)(1) challenges a federal court’s subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). The justiciability doctrines of standing and ripeness, which Defendants raise here, originate from the “case” or “controversy” language of Article III of the United States Constitution, Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012), and implicate this Court’s subject matter jurisdiction, Center for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006). Plaintiffs, as the parties invoking this Court’s subject matter jurisdiction, bear the burden of proof that jurisdiction exists. Choice Inc. of Texas, 691 F.3d at 714. The Court has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. Id. (citations omitted). 2. Relevant Statutory and Regulatory Framework The Affordable Care Act was enacted on March 23, 2010. Section 2713 of the Act provides, in relevant part, 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--
* * * (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph. 42 U.S.C. § 300gg-13(a)(4).
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The guidelines adopted by the Health Resources and Services Administration [“HRSA”] require insurance plans to cover, as prescribed, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited Dec. 18, 2012). FDA-approved contraceptive methods include oral contraceptives, “emergency contraceptive” pills (such as “Plan B” and “Ella”), intrauterine devices, and sterilization. FDA Office of Women’s Health, Birth Control Guide, http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited Dec. 18, 2012).
The Department of the Treasury, the Department of Labor, and the Department of Health and Human Services [“HHS”] [collectively, “the Departments”] issued their “Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act” in July 2010, effective on September 17, 2010. Interim Final Regulations, 75 Fed. Reg. 41,726-01 (July 19, 2010). In August 2011, the Departments issued amendments to the interim final regulations. Amendment to the Interim Final Regulations, 76 Fed. Reg. 46,621-01 (Aug. 3, 2011). The Amendments granted the HRSA, with respect to section 2713 of the Affordable Care Act, “additional discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” Id. at 46,623. A religious employer was defined as
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an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the
organization. (2) The organization primarily employs persons who share the
religious tenets of the organization. (3) The organization serves primarily persons who share the religious
tenets of the organization. (4) The organization is a nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id. at 46,626; see 45 C.F.R. § 147.130. In February 2012, the Departments published the Final Regulations, which finalized, without change, the Interim Final Regulations. Final Regulations, 77 Fed. Reg. 8,725-01, 8,725 (Feb. 15, 2012). The Final Regulations also adopted a one year temporary safe harbor from enforcement of the rules [the “Safe Harbor”] for “certain non-exempted, non-profit organizations with religious objections to covering contraceptive services whose group health plans are not grandfathered health plans . . . .” Id. at 8,727–8,728. “Before the end of the temporary enforcement safe harbor, the Departments will work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8,728. On February 10, 2012, HHS issued a bulletin entitled “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code” [the “Bulletin”].
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See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501-01, 16,502 n.5 (March 21, 2012) (“The bulletin can be found at: http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-B ulletin.pdf.”).
The bulletin established a temporary enforcement safe harbor for group health plans sponsored by non-profit organizations that, on and after February 10, 2012, do not provide some or all of the contraceptive coverage otherwise required, consistent with any applicable State law, because of the religious beliefs of the organization (and any group health insurance coverage provided in connection with such plans). The temporary enforcement safe harbor is in effect until the first plan year that begins on or after August 1, 2013. The bulletin confirmed that all three Departments will not take any enforcement action against an employer, group health plan, or health insurance issuer that complies with the conditions of the temporary enforcement safe harbor described in the bulletin. Id. at 16,502–16,503. In March 2012, the Departments published an Advance Notice of Proposed Rulemaking [“ANPRM”], which announced the Departments’ intention to propose amendments to regulations regarding certain preventive health services under provisions of the Patient Protection and Affordable Care Act (Affordable Care Act). The proposed amendments would establish alternative ways to fulfill the requirements of section 2713 of the Public Health Service Act and companion provisions under the Employee Retirement Income Security Act and the Internal Revenue Code when health coverage is sponsored or arranged by a religious organization that objects to the coverage of contraceptive services for religious reasons and that is not exempt under the final regulations published February 15, 2012. Id. at 16,501. The ANPRM further provides that [t]he Departments intend to finalize these amendments to the final
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regulations such that they are effective by the end of the temporary enforcement safe harbor; that is, the amended final regulations would apply to plan years starting on or after August 1, 2013. Id. at 16,503. 3. Analysis
a. Standing Defendants contend that Plaintiffs lack standing to pursue their claims because they have not alleged a concrete actual or imminent injury caused by the operation of the preventative services coverage regulations. Defs.’ Mem. in Supp. of Mot. to Dismiss [16], at p. 10. Since Plaintiffs’ health plans are grandfathered, such that the regulations do not apply to them, Defendants maintain that there is no showing of the requisite injury, nor is any alleged injury fairly traceable to the challenged regulations. Id. at p. 11. Defendants also point to the Safe Harbor, which currently protects Plaintiffs from enforcement of the regulations, and argue that Plaintiffs cannot satisfy the imminence requirement for standing. Id. at p. 12. Finally, they assert that the ANPRM, which was published in the Federal Register, confirms their “intention to propose further amendments to the preventive services coverage regulations that would further accommodate the concerns of religious organizations that object to providing contraceptive coverage for religious reasons, like plaintiffs.” Id. at p. 13 (citing 77 Fed. Reg. at 16,501). These amendments are intended to be finalized prior to the expiration of the enforcement Safe Harbor. Id. Plaintiffs counter that “[t]hey are allowed to challenge the Government’s regulation prior to enforcement to ensure that they are never faced with the choice
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 11 of 15
of violating their religious liberty or facing potential financial ruin.” Pls.’ Mem. in Opp’n to Defs.’ Mot. to Dismiss [23], at p. 15 (emphasis in original). They maintain that the regulation at issue is final, is current law, and applies to them. Id. “The Government’s contention that it might amend the law in the future does not preclude Plaintiffs from challenging it now.” Id. at p. 17 (citing Larson v. Valente, 456 U.S. 228, 242 (1982); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 537 (6th Cir. 2011)). Plaintiffs insist that they are presently suffering actual injuries, that the Safe Harbor has not been codified in the Code of Federal Regulations and does not have the force and effect of law, that the Safe Harbor’s one year delay is far too brief to make their injuries speculative, and that neither the Safe Harbor, Plaintiffs’ current grandfathered status, nor the ANPRM does anything to alleviate their present injuries or make them any less imminent. Id. at pp. 17–23.
Article III, § 2 of the Constitution extends the “judicial Power” of the United States only to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “To state a case or controversy under Article III, a plaintiff must establish standing.” Arizona Christian School Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). Standing is determined as of the date of the filing of the complaint. Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005). To establish standing,
[f]irst, the plaintiff must have suffered an “injury in fact”–an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of–the injury has to be fairly traceable to the challenged
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action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotations omitted). The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561. Because, as discussed below, the Court finds that this case is not ripe for adjudication, it need not resolve the question of Plaintiffs’ standing at this time. Even if Plaintiffs possessed standing to maintain this suit, the Court would nevertheless lack subject matter jurisdiction because this matter is not ripe for review.
b. Ripeness Defendants contend that because they have initiated rulemaking to amend the challenged preventive services regulations to accommodate religious organizations’ objections to providing contraceptive coverage, this case is not ripe for judicial review. Defs.’ Mem. in Supp. of Mot. to Dismiss [16], at p. 4. They claim that “the enforcement safe harbor will be in effect such that plaintiffs will not suffer hardship as a result of their failure to cover contraceptive devices.” Id. Plaintiffs respond that these arguments are irrelevant to seven of the ten claims they are pursuing. Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss [23], at pp. 8–9. Plaintiffs maintain that Counts III through V of the Complaint challenge the religious employer exemption, which is not subject to change, and Counts VII
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 13 of 15
through X challenge the Government’s “already-past violations of the APA . . . .” Id. at p. 9. ACLJ likewise argue that “Plaintiffs are concretely injured by the Mandate now, regardless of the safe harbor period or the supposed accommodation.” Amici Curiae Brief [19-1], at pp. 7–8. Defendants posit that “[b]ecause plaintiffs cannot know what form the final regulations will take, it is pure speculation to suggest that the amended regulations will not address these concerns as well.” Defs.’ Rebuttal [27], at pp. 16–17.
“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quotation omitted). “The ripeness doctrine’s ‘basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . .’” Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)). When a case presents a dispute that is abstract or hypothetical, a court should dismiss it for lack of ripeness. Id. (citation omitted). “The key considerations are the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. (quotations omitted). The Fifth Circuit Court of Appeals has explained that “[a] case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.” Id. (quotation omitted).
Because the preventive services regulations are in the process of being amended, in their present form they represent a tentative agency position.
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 14 of 15
Therefore, they are not fit for judicial review at this time. See Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796, *3-*4 (M.D. Tenn. Nov. 21, 2012), appeal docketed, No. 12-6590 (6th Cir. Dec. 19, 2012). “[I]t cannot be overlooked that through the ANPRM, Defendants have committed to amending the preventive services coverage regulations [before the end of the Safe Harbor] to accommodate the religious objections of organizations such as Plaintiffs.” Zubik v. Sebelius, No. 2:12-cv-676, 2012 WL 5932977, *8 (W.D. Pa. Nov. 27, 2012); see also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not more litigation posturing.”). Accordingly, the Court finds that Plaintiffs have not demonstrated that their claims are ripe for adjudication. See Wheaton College v. Sebelius, No. 12-5273 (D.C. Cir. Dec. 18, 2012) (Order holding consolidated cases in abeyance because “the cases are not fit for review at this time”). Other district courts, considering similar claims by similarly situated plaintiffs, have reached this same conclusion. See, e.g., Zubik, 2012 WL 5932977, at *9; Catholic Diocese of Nashville, 2012 WL 5879796, at *5; Wheaton College v. Sebelius, - - - F. Supp. 2d - - - -, No. 12-1169, 2012 WL 3637162, *4-*7 (D.D.C. Aug. 24, 2012), appeal docketed, No. 12-5273 (D.C. Cir. Aug. 29, 2012); Belmont Abbey College v. Sebelius, - - - F. Supp. 2d - - - -, No. 11-1989, 2012 WL 2914417, *14-*15 (D.D.C. July 18, 2012), appeal docketed, No. 12-5291 (D.C. Cir. Sept. 14, 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Servs., - - - F. Supp. 2d - - - -, No. 4:12CV3035, 2012 WL 2913402, *24 (D. Neb. July 17,
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Case 1:12-cv-00158-HSO-RHW Document 62 Filed 12/20/12 Page 15 of 15
2012), appeal docketed, No. 12-3238 (8th Cir. Sept. 14, 2012). The Court concludes that because this dispute is not ripe, this case should be dismissed, without prejudice.
III. CONCLUSION For the foregoing reasons, the Court finds that this dispute is not yet ripe for judicial review. The Court therefore lacks subject matter jurisdiction, and this case should be dismissed without prejudice. IT IS, THEREFORE, ORDERED AND ADJUDGED that, for the reasons stated more fully herein, the Motion for Oral Argument [28] filed by Plaintiffs on October 11, 2012, is DENIED. IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion to Dismiss [15] filed by Defendants on August 6, 2012, is GRANTED, and Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE. SO ORDERED AND ADJUDGED, this the 20th day of December, 2012.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
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 Case 1:12-cv-00158-HSO-RHW Document 74 Filed 02/15/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

THE CATHOLIC DIOCESE OF BILOXI, §

INC., et al.

§

§

v.

§

§

KATHLEEN SEBELIUS, et al.

§

PLAINTIFFS Civil No. 1:12CV158-HSO-RHW
DEFENDANTS

ORDER DENYING PLAINTIFFS’ MOTION TO ALTER OR AMEND THE JUDGMENT BEFORE THE COURT is the Motion to Alter or Amend the Judgment [64] pursuant to Federal Rule of Civil Procedure 59(e) filed on January 8, 2013, by Plaintiffs The Catholic Diocese of Biloxi, Inc., Catholic Social and Community Services, Inc., De L’Epee Deaf Center, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc., St. Joseph Catholic School, Catholic Charities, Inc., and St. Dominic-Jackson Memorial Hospital. This Motion is now fully briefed. After consideration of the parties’ submissions, the record, and relevant legal authorities, and for the reasons discussed below, the Court finds that Plaintiffs’ Motion [64] should be denied.
I. BACKGROUND Plaintiffs filed their Complaint [1] in this Court on May 21, 2012. Defendants moved the Court to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(1), on grounds that Plaintiffs lacked standing to pursue these claims, and that this dispute was not yet ripe for judicial review. Defs.’ Mem. in Supp. of Mot. to Dismiss [16], at pp. 11–22. In a Memorandum Opinion and Order [62] entered on
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Case 1:12-cv-00158-HSO-RHW Document 74 Filed 02/15/13 Page 2 of 5
December 20, 2012, the Court determined that this dispute was not yet ripe for judicial review, granted Defendants’ Motion to Dismiss [15], and dismissed this case without prejudice. The Court entered a Final Judgment [63] the same date. Plaintiffs now ask the Court to alter or amend the Final Judgment, and related Memorandum Opinion and Order, (1) to “hold this case in abeyance pending Defendants’ final promulgation of the promised regulations,” and (2) to “require Defendants to file regular status reports every 60 days detailing the progress of the regulatory process,” in lieu of a dismissal without prejudice. Pls.’ Mem. in Supp. of Their Mot. [65], at p. 7.
II. DISCUSSION A. Legal Standard
Under Rule 59(e), amending a judgment is appropriate (1) where there has been an intervening change in the controlling law; (2) where the movant presents newly discovered evidence that was previously unavailable; or (3) to correct a manifest error of law or fact. Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012). Also included under the third prong of this standard is the need to “prevent manifest injustice,” In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002), which Plaintiffs’ Motion implicates. A motion under Federal Rule of Civil Procedure 59(e) “calls into question the correctness of a judgment” and “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004) (citations omitted). “Reconsideration of a judgment after its entry is an
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Case 1:12-cv-00158-HSO-RHW Document 74 Filed 02/15/13 Page 3 of 5
extraordinary remedy that should be used sparingly.” Id. at 479 (citation omitted). B. Analysis
Plaintiffs request that the Court alter or amend its Final Judgment in order to prevent manifest injustice. They contend that, “[r]ather than dismiss the case in its entirety, a more appropriate order would: (1) hold Plaintiffs’ lawsuit in abeyance pending the issuance of the new regulations promised by Defendants, and (2) require Defendants to file with the Court regular reports concerning the status of the new regulations.” Pls.’ Mem. in Supp. of Their Mot. [65], at pp. 1–2 (emphasis added) (citing Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012)). According to Plaintiffs, without such an order, “there is nothing holding Defendants to the very ‘commitments’ on which their ripeness victory depends.” Id. at p. 3. An amended order would “protect Plaintiffs in the event that Defendants fail to deliver the promised regulations.” Id. at p. 5 (citing Am. Petroleum Inst. v. EPA, 683 F.3d 382, 389-90 (D.C. Cir. 2012)). Plaintiffs ask the Court to exercise its “considerable discretion” under Rule 59(e) to amend the Final Judgment to hold this case in abeyance, instead of dismissing it without prejudice. Id., at p. 2; see also Pls.’ Rebuttal [71], at p. 7.
Defendants respond that Plaintiffs’ Motion “offers nothing new,” and “relies on arguments that plaintiffs either already raised or could have raised prior to the dismissal of this lawsuit for lack of subject matter jurisdiction.” Defs.’ Mem. in Opp’n to Pls.’ Mot. [69], at p. 2. They also argue that any risk of repetitive litigation is outweighed by the disadvantages of premature review, such that the cost or
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Case 1:12-cv-00158-HSO-RHW Document 74 Filed 02/15/13 Page 4 of 5
burden of re-filing suit does not rise to the level of manifest injustice. Id. at pp. 7–8 (citations omitted). Defendants also point out that this Court “joined the overwhelming majority of courts that have accepted [their] jurisdictional arguments in similar regulatory challenges and dismissed for lack of jurisdiction.” Id. at p. 2 (collecting cases). They have submitted Notices of Supplemental Authority [70], [72], citing two recent district court opinions which dismissed similar actions for lack of ripeness and which expressly declined to hold these cases in abeyance, Notice [70], at p. 1 (citing Roman Catholic Archbishop of Washington v. Sebelius, No. 12-0815 (ABJ), 2013 WL 285599 (Jan. 25, 2013); Most Reverend Lawrence T. Persico v. Sebelius, No. 1:12-cv-00123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013)), and a district court opinion which dismissed a similar case for lack of jurisdiction, rather than holding it in abeyance, Notice [72], at p. 1 (citing Archdiocese of St. Louis v. Sebelius, No. 4:12-cv-00924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013)).
Plaintiffs could have asked this Court prior to judgment that, in the alternative, if it found that the case was not ripe for adjudication, it hold the case in abeyance. They did not do so, and Rule 59(e) is not the proper vehicle to present this new argument post judgment. See id. Even if it were, Plaintiffs have not identified any manifest injustice that needs to be corrected. See FED. R. CIV. P. 59(e). To the extent that they argue that they will suffer manifest injustice from the case being dismissed without prejudice because there is nothing requiring Defendants to “deliver the promised regulations,” Pls.’ Mem. in Supp. of Their Mot.
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Case 1:12-cv-00158-HSO-RHW Document 74 Filed 02/15/13 Page 5 of 5
[65], at p. 5, the Court is not persuaded that Plaintiffs have shown that relief under Rule 59 is appropriate, see Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.”). While Plaintiffs may feel that holding the case in abeyance may have been a “more appropriate” disposition, Pls.’ Mem. in Supp. of Their Mot. [65], at pp. 1–2, the Court is not persuaded that the dismissal without prejudice worked any “manifest injustice” upon Plaintiffs such as to warrant Rule 59(e) relief.
III. CONCLUSION For the foregoing reasons, the Court finds that Plaintiffs’ Motion to Alter or Amend the Judgment should be denied. IT IS, THEREFORE, ORDERED AND ADJUDGED that, for the reasons stated more fully herein, the Motion to Alter or Amend the Judgment [64] pursuant to Federal Rule of Civil Procedure 59(e) filed by Plaintiffs The Catholic Diocese of Biloxi, Inc., Catholic Social and Community Services, Inc., De L’Epee Deaf Center, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc., St. Joseph Catholic School, Catholic Charities, Inc., and St. Dominic-Jackson Memorial Hospital, on January 8, 2013, is DENIED. SO ORDERED AND ADJUDGED, this the 15th day of February, 2013.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
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 Case 1:14-cv-00146-LG-JMR Document 1 Filed 03/27/14 Page 1 of 62

CO.... SOun<ERN ~IC~

iSSIPP'

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

MAR 27 2014

SOUTHERN DIVISION

ARTHURJOHIOSlOH

THE CATHOLIC DIOCESE OF BILOXI,

)

BY

DEP\J1V

INC., THE MOST REVEREND ROGER P. )

MORIN, Bishop and President of THE

)

CATHOLIC DIOCESE OF BILOXI, INC.

)

and his succeSSors in office, as Trustee for and )

on behalf of the RESURRECTION

)

CATHOLIC SCHOOL and the SACRED

)

HEART CATHOLIC SCHOOL; CATHOLIC )

SOCIAL AND COMMUNITY SERVICES, )

INC.; DE L'EPEE DEAF CENTER, INC.;

)

THE CATHOLIC DIOCESE OF JACKSON, )

THE MOST REVEREND JOSEPH R.

)

KOPACZ, Bishop and Chief Executive Officer )

of THE CATHOLIC DIOCESE OF

)

JACKSON, and his successors in office, in

)

accordance with the discipline and

)

government of the Roman Catholic Church; )

VICKSBURG CATHOLIC SCHOOL, INC.; )

CIVIL ACTION NO: r.1YLVIYlJ LS-JM~

ST. JOSEPH CATHOLIC SCHOOL; CATHOLIC CHARITIES INC.; and ST.

)

JUDGE: __________________

)

DOMINIC-JACKSON MEMORIAL

)

HOSPITAL,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary ofthe U.S. Department )

of Health and Human Services; THOMAS

)

PEREZ, in his official capacity as Secretary of )

the U.S. Department of Labor; JACOB J.

)

LEW, in his official capacity as Secretary of )

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

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES; U.S. DEPARTMENT OF

)

LABOR; and U.S. DEPARTMENT OF

)

TREASURY,

)

)

Defendants.

)

)

--------------------------)

Case 1:14-cv-00146-LG-JMR Document 1 Filed 03/27/14 Page 2 of 62
COMPLAINT I. This lawsuit is about one of America's most fundamental freedoms: the freedom to practice one's religion without governmental interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. These products and services are widely available throughout the United States, and nothing prevents the Government from making them more widely available. Here, however, the Government is attempting to require Plaintif[~ -- all Catholic entities -- to violate their religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights. 2. Plaintiffs provide a wide range of spiritual, educational, and social services to the public, Catholic and non-Catholic alike, throughout the State of Mississippi. 3. Plaintiff, the Catholic Diocese of Biloxi, Inc. (the "Biloxi Diocese"), is the legal name of a religious community inclusive of those Roman Catholic parishes and organizations located within the 17 southeastern counties of Mississippi under the pastoral care of the Most Reverend Roger P. Morin ("Bishop Morin"), and his successors in office. The Biloxi Diocese carries out its mission directly, through the work of affiliated Catholic entities such as Plaintiffs Catholic Social and Community Services, Inc. ("Catholic Social Services") and de l'Epee Deaf Center, Inc. ("de I'Epee"), and also through the education of students in Catholic schools, including Plaintiffs Resurrection Catholic School ("Resurrection Catholic") and Sacred Heart Catholic School ("Sacred Heart"). The Plaintiffs named in this paragraph will be referred to collectively as the "Biloxi Plaintiffs."
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4. Plaintiff, the Catholic Diocese of Jackson, a Mississippi nonprofit corporation (the "Jackson Diocese"), is a religious community inclusive of those Roman Catholic parishes and organizations located in the remaining 65 counties of Mississippi under the pastoral care of the Most Reverend Joseph R. Kopacz ("Bishop Kopacz"), Bishop ofthe Diocese and his successors in office. The Jackson Diocese carries out its mission directly, through the work of affiliated corporations such as Plaintiff Catholic Charities, Inc. ("Catholic Charities"), and also through the education of students in Catholic schools, including Plaintiffs St. Joseph Catholic School ("St. Joseph") and Vicksburg Catholic School, Inc. ("Vicksburg Catholic"), both of which are separately incorporated. The Plaintiffs named in this paragraph will be referred to collectively as the "Jackson Plaintiffs."
5. Plaintiff, St. Dominic-Jackson Memorial Hospital ("St. Dominic"), while not affiliated with a diocese, is a Catholic healthcare organization whose mission is both guided by and consistent with the teachings of the Catholic Church. st. Dominic provides medical care and related services to all, regardless of religious faith.
6. Plaintiffs' work is guided by and consistent with Roman Catholic beliefs, including the requirement that they serve those in need, regardless of their religion.
7. Plaintiffs address the needs of Mississippi residents in a variety of ways. The Biloxi Diocese and the Jackson Diocese serve families through the education of the students attending their Catholic school systems, which are devoted to teaching a religiously and ethnically diverse student body. They also provide charitable service statewide through dozens of programs undertaken by their parishes.
8. Catholic Social Services and Catholic Charities offer a host of social services to thousands of Catholics and non-Catholics in need throughout the State. De I' Epee provides
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coordinated services to those throughout Mississippi who are deaf or hard of hearing, to their families, and to clients of local agencies and businesses with hearing-related disabilities, to promote their independence and inclusion in the community. It is the only ministry of its kind in the state. And St. Dominic provides invaluable assistance and care to residents of the greater Jackson area, including the homeless and poor who would otherwise not be able to afford medical care. These Plaintiffs serve all people, regardless of faith or financial condition.
9. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation oflife; thus, artificial interference with the creation of life, including through abortion, sterilization, or contraception, is contrary to Catholic doctrine.
10. Defendants have promulgated various rules (collectively, "the Mandate"), as part of the 2010 Patient Protection and Affordable Care Act (the "Affordable Care Act" or the "Act"), that force Plaintiffs to violate their sincerely-held religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate insurance coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their religious beliefs. In response to the resulting intense public criticism, the Government recently finalized changes to the interim rule (the "Final Rule") that, it asserts, are intended to eliminate the substantial burden that the Mandate imposes on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the Mandate, and by driving a wedge between religious organizations, like the Biloxi Diocese, and their equally religious charitable arms, such as Catholic Social Services and de I'Epee. Reversing course from its prior form, the Mandate
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now prohibits the Biloxi Diocese and the Jackson Diocese from ensuring that their religious affiliates provide health insurance consistent with Catholic doctrine,
II, In its current form, the Mandate contains three basic components: (a) First, it requires employer group health plans to cover, without cost-
sharing requirements, all "FDA-approved contraceptive methods and contraceptive counseling" - a term that includes abortion-inducing drugs, contraception, sterilization, and related counseling and education,
(b) Second, the Mandate creates a narrow exemption for certain "religious employers" (the "Exemption"), now defined to include only organizations that are "organized and operate[] as , . , nonprofit entit[ies] and [are] referred to in 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must tile an annual informational tax return, known as a Form 990, As the Government has repeatedly affirmed; the Exemption is intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions," 78 Fed, Reg, 8,461 (Feb, 6,2013),39,874 (July 2,2013). Consequently, the only organizations that qualify for the Exemption are "churches, synagogues, mosques, and other houses of worship, and religious orders," Id. at 8461. This is the narrowest "conscience exemption" ever adopted in federal law, and it grants the Government broad discretion to sit in judgment of which groups qualify as "religious employers," thus favoring certain religious organizations over others and entangling the Government in mallers ofreligious faith and practice.
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(c) Third, the Mandate creates a second, inferior class of religious entities that, in the Government's view, are not sufficiently "religious" to qualify for the Exemption. These religious entities, deemed "eligible organizations," are subject to a socalled "accommodation" that is intended to ameliorate the burden that the Mandate imposes on their religious beliefs. The "accommodation," however, is illusory; it continues to require "eligible organizations" to participate in a new employer-based scheme to provide, pay for, and/or facilitate provision of the obj ectionable coverage to their employees. 12. For example, the Exemption's narrow definition of "reJigious employer" likely excludes, among other entities, Catholic Social Services, de I'Epee, Resurrection Catholic, Sacred Heart, St. Dominic, Catholic Charities, St. Joseph, and Vicksburg Catholic, even though they are all "religious" organizations under any reasonable definition of the term. Instead, they appear to qualify merely as "eligible organizations" subject to the so-called "accommodation." But notwithstanding the "accommodation," these Plaintiffs are required to alter their prior practices with respect to their health plan, identify and enter into contracts with insurance companies (or for self-insured organizations, with third party administrators) who will provide the objectionable products and services and who, as a direct result of Plaintiffs' objections, are required to provide or procure the objectionable products and services for free to Plaintiffs' employees. Plaintiffs cannot avoid causing and facilitating this provision - for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or by dropping their health insurance plans altogether - without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
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13. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that exacerbate their compelled cooperation in religiously impermissible conduct. For example, to be eligible for the so-called "accommodation," Plaintiffs must execute and submit a "certification" to their insurance provider or third party administrator that purports to set forth their religious objections to the Mandate. However, submitting this "certification" automatically triggers an obligation on the part ofthe insurance provider or administrator to procure the objectionable products and services for Plaintiffs' employees. In practice, then, a religious organization's self-certification is a trigger and but-for cause of providing the objectionable coverage.
14. Notwithstanding the "accommodation," the Mandate "requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.,,1 While the Government asserts that providing the objectionable coverage will be "cost-neutral," that bold assertion ignores the regulatory and administrative costs that will inevitably force insurance companies and third-party administrators to increase the prices they charge religious employers subject to the "accommodation." The Government's assertion of "cost neutrality" is also based on the implausible (and morally objectionable) assumption that "lower costs" from "fewer childbirths" will offset the anticipated cost of the contraceptive coverage. 78 Fed. Reg. at 8,463 (Feb. 6, 2013). More importantly, even if the Government's assumptions were correct, it simply means that premiums previously going toward childbirths will now be redirected to contraceptive and related services in order to achieve the (objectionable) goal of "fewer childbirths. "
I Comments of U.S. Conference of Catholic Bishops, at 3 (Mar. 20,2013), available at http://www.usccb.orglabout!general-counsel/rulemaking/upload/20 13-NPRM-Comments-3-20final.pdf.
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15. In short, the "accommodation" requires non-exempt religious organizations, including some of the Plaintiffs, to provide, pay for, and/or facilitate abortion-inducing products, contraception, sterilization and related counseling, contrary to their core religious beliefs.
16. Even though the Biloxi Diocese and the Jackson Diocese appear to qualify as "religious employer[s]" under the Exemption, as modified by the Final Rule and interpreted by the Defendants, the Mandate still requires them to act in violation of their Catholic beliefs. For example, the Biloxi Diocese operates a self-insurance plan that encompasses not only individuals directly employed by the Diocese itself, but also individuals working for or employed by affiliated Catholic organizations such as Catholic Social Services, de l'Epee, Resurrection Catholic, and Sacred Heart. Because these entities do not, themselves, appear to qualify as exempt "religious employers," the Diocese must either: (i) employ those who work at its affiliated Catholic entities; (ii) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable insurance coverage to the employees ofthose affiliated Catholic entities, or (iii) expel them from the Diocese's sel f-insurance plan which, in tum, will require those affiliated Catholic entities themselves to provide, pay for, and/or facilitate access to the objectionable products and services.
17. This aspect of the Mandate reflects a change from the Government's original proposal of July 19,2010, which allowed employees of Catholic Social Services, de l'Epee, Resurrection Catholic, and Sacred Heart to remain on the Biloxi Diocese's plan, which, in tum, would have shielded them from the Mandate if the Biloxi Diocese was exempt2 The Final Rule, in contrast, removes this ancillary protection and thereby increases the number of religious organizations subject to the Mandate. And in so doing, the Mandate now effectively divides the
2 See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
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Catholic Church, artificially separating its "houses of worship" from its faith in action entities, directly contrary to Pope Benedict's admonition that "[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word."
18. The Mandate is irreconcilable with the First Amendment, RFRA, and other laws. The Government has demonstrated no compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception. Nor has it shown that the Mandate is the least restrictive means of advancing any interest it may have in increasing access to these services, which are already widely available without the Government conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their religious beliefs.
19. Accordingly, Plaintiffs respectfully seek (i) a declaration that the Mandate cannot lawfully be applied to them; (ii) an injunction barring its enforcement; and (iii) an order vacating the Mandate.
PRELIMINARY MATTERS 20. The Biloxi Diocese is a nonprofit corporation with its principal place of business in Biloxi, Mississippi. It is organized exclusively for charitable, religious, and educational purposes under Section 501(c)(3) of the Internal Revenue Code ("IRC"). 21. Bishop Morin, in his capacity as Bishop of the Biloxi Diocese, is responsible for serving more than 70,000 Catholics residing in southeastern Mississippi. 22. Catholic Social Services is a not-for-profit corporation that is part of the Catholic ministry of the Biloxi Diocese. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501 (c)(3).
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23. De l'Epee is a not-for-profit corporation located in Biloxi, Mississippi and affiliated with the Biloxi Diocese. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
24. Resurrection Catholic and Sacred Heart are two of the 14 Catholic schools that carry out the Catholic Church's teaching ministry within the Biloxi Diocese.
25. The Jackson Diocese is a religious association of parishes and schools, with its principal place of business located in Jackson, Mississippi. It is organized exclusively for charitable, religious, and educational purposes under IRC § 501(c)(3).
26. Bishop Kopacz, in his capacity as Bishop of the Jackson Diocese, is responsible for overseeing and serving 99 parishes in 65 counties in Mississippi.
27. Vicksburg Catholic and St. Joseph are two of the Catholic schools of the Jackson Diocese. While they fall within the Catholic ministry ofthe Jackson Diocese, Vicksburg Catholic and St. Joseph are separately incorporated.
28. Catholic Charities is a nonprofit Mississippi corporation, which is part ofthe Catholic ministry of the Jackson Diocese. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
29. St. Dominic is a nonprofit Mississippi corporation providing numerous healthcare-related services. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
30. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services ("HHS"). She is sued in her official capacity.
31. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
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32. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
33. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning ofRFRA and the Administrative Procedure Act ("AP A"').
34. Defendant U.S. Department of Labor is an executive agency ofthe United States within the meaning of RFRA and the APA
35. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning ofRFRA and the APA.
36. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.c. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
37. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely-held religious beliefs, as described below.
38. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
39. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, l343(a)(4), and l346(a)(2).
40. Venue is proper in this Court under 28 U.S.C. § 139l(e)(l). THE PARTIES
BISHOP MORIN AND THE BILOXI DIOCESE
41. Bishop Morin, in his capacity as head of the Biloxi Diocese, is responsible for the 40 Catholic parishes located throughout 17 counties in southeastern Mississippi. Originally part
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of the Diocese of Natchez-Jackson, the Biloxi Diocese was established as a separate diocese on March 1,1977.
42. Bishop Morin is assisted in his ministry by a staff of clergy, religious brothers and sisters, and lay people. Except where religion is a bona fide requirement for fulfilling a job requirement, the Biloxi Diocese imposes no religious litmus test on its employees and employs Catholics and non-Catholics alike.
43. The Biloxi Diocese carries out a tripartite spiritual, educational, and social service mission largely through its parishes. Through the ministry of its priests, the Biloxi Diocese ensures the regular availability of the Sacraments to all Catholics living in or visiting the southeastern Mississippi area.
RESURRECTION CATHOLIC AND SACRED HEART SCHOOLS
44. The Catholic Church's educational mission within the Biloxi Diocese is carried out largely through 14 Catholic schools, including Plaintiffs Resurrection Catholic and Sacred Heart. Collectively, those schools serve nearly 4,000 students and employ more than 200 certificated teachers and school staff.
45. The Catholic schools within the Biloxi Diocese, including Resurrection Catholic and Sacred Heart, welcome students of any or no faith. To serve as many children as possible, the Biloxi Diocese expends significant funds in tuition assistance programs. Approximately 13% of the students enrolled in the Biloxi Diocese's Catholic schools are minorities.
46. The Catholic schools within the Biloxi Diocese provide an education based on Christ's teaching and values, and focus on the formation of strong moral character, the furtherance of academic excellence, the inspiration to serve others and the motivation to achieve the students' potential in the local and the world communities. Nationally, 99.4% of students in Catholic high schools graduate.
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CATHOLIC SOCIAL SERVICES
47. Catholic Social Services is a not-for-profit corporation, which is a Catholic ministry within the Biloxi Diocese and is organized exclusively for charitable, religious, and educational purposes within the meaning of the IRC § 501(c)(3).
48. The mission of Catholic Social Services is to convene people to action, advocate justice in societal structures, and provide service to people in need. It is the "good works" arm of the Biloxi Diocese, that "commits itself above all to a preferential option for those less fortunate. "
49. Catholic Social Services serves the needy, underserved, and underprivileged in countless ways, regardless of their faith. For instance, it offers a variety of maternity services for pregnant women, including pregnancy testing, prenatal care, and counseling. It also operates a licensed adoption agency. Many of the services provided by Catholic Social Services are not otherwise available in southern Mississippi.
DE L'EpEE DEAF CENTER
50. De l'Epee is a not-for-profit corporation located in Biloxi, Mississippi, and is affiliated with the Biloxi Diocese. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
51. Founded in 1978 by Sister Delores Coleman, de l'Epee offers a variety of educational, social, religious, and personal services throughout Mississippi for those who are deaf, hard of hearing or have other hearing-related disabilities. Its services include afterschool tutoring and sign language classes for deaf students and interpreting services for the deaf and hearing disabled. It also conducts church services and offers spiritual counseling in sign language. There is no other organization in Mississippi providing this critical function for the hearing impaired.
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52. De l'Epee serves people in need without regard to their religion.
BISHOP KOPACZ AND THE JACKSON DIOCESE
53. The Jackson Diocese is a nonprofit Mississippi corporation, with its principal place of business located in Jackson, Mississippi. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofiRC § 501(c)(3).
54. Bishop Kopacz, in his capacity as head of the Jackson Diocese, is responsible for 99 parishes in 65 counties in Mississippi. The Jackson Diocese currently serves a Catholic population of approximately 48,000 people. Geographically, it is the largest diocese located east of the Mississippi River.
55. Bishop Kopacz oversees the multifaceted mission of delivering spiritual, educational, and social services to residents, both Catholic and non-Catholic alike, of the region that the Jackson Diocese encompasses. The parishes maintain their own charitable efforts and serve an indeterminate number of persons of all faiths who are homeless, hungry, elderly, or otherwise in need of material assistance.
56. The Jackson Diocese employs approximately 900 people, the majority of whom are full-time employees.
VICKSBURG CATHOLIC AND ST. JOSEPH SCHOOLS
57. The Jackson Diocese also serves the community through its Catholic schools, including Vicksburg Catholic and St. Joseph, which is located in Madison, Mississippi. The Office of Catholic Schools is vested with responsibility for all of the Catholic schools within the Diocese, which include fifteen elementary schools, four high schools, and various preschool programs. Collectively, these schools educate approximately 4,500 students. While all ofthese
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schools fall within the Catholic ministry of the Jackson Diocese, Vicksburg Catholic and St. Joseph are separately incorporated.
58. Like the Catholic schools of the Biloxi Diocese, the Catholic schools of the Diocese of Jackson maintain high standards for academic excellence. Ninety-nine percent of senior high school students in the Jackson Diocese's schools graduate.
59. The Jackson Diocese's schools are open to and serve all children, without regard to the students' religion, race or financial condition. To make a Catholic education available to as many children as possible, the Jackson Diocese expends substantial funds in tuition assistance programs. Approximately one-half of the students who attend the Catholic schools of the Jackson Diocese are not Catholic, and approximately one-third are minorities.
CATHOLIC CHARITIES
60. Catholic Charities is a nonprofit Mississippi corporation which is part of the Catholic ministry of the Jackson Diocese. It is organized exclusively for charitable, religious, and educational purposes within the meaning ofiRC § 501(c)(3).
61. The mission of Catholic Charities is to be a visible sign of Christ's love and concern for all people. Last year, Catholic Charities directly served more than 20,000 people throughout Mississippi, without regard to religious affiliation, but its mission extends to the larger community of the state, nation, and beyond.
62. Catholic Charities serves the needy, underserved, and underprivileged in countless ways, including alcohol and drug addiction services, health training ministry, mental health counseling services, children's mental health services, domestic violence shelters, pregnancy and parenting support, and refugee services. Catholic Charities provides more than
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$7.6 million in services annually (excluding administrative and fund-raising costs) for the communities it serves.
63. Catholic Charities has approximately 140 employees and maintains offices in Jackson, Natchez, and Vardaman, Mississippi. It also has outreach workers located throughout the Jackson Diocese.
ST. DOMINIC
64. St. Dominic is a nonprofit Mississippi corporation organized exclusively for charitable, religious, and educational purposes within the meaning ofIRC § 501(c)(3).
65. St. Dominic employs more than 2,200 full-time employees at St. DominicJackson Memorial Hospital and affiliated locations and programs.
66. The mission of St. Dominic includes numerous healthcare-related services. "Its
outreach programs and services extend its ministry beyond [its1walls so that specific needs can
be addressed." 67. In addition, St. Dominic has contributed to the operation of St. Dominic
Community Health Services Clinic (the "Health Clinic"). Since its founding in 1946, St. Dominic has recognized the need to provide healthcare services for the homeless and working poor of Jackson, Mississippi. As an extension of that focus, the Health Clinic provides basic medical care to those who cannot afford it. In addition to primary healthcare services, the Health Clinic provides a variety of educational programs for children, adolescents, and adults in an effort to promote disease prevention and safety among a segment ofthe population that is underserved by the Government. In 2010, more than 12,000 individuals were treated at the Health Clinic.
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68. St. Dominic has also contributed to the operation of the "Care-A-Van Outreach Program" ("Care-A-Van"). With health prevention as its focus, this 42-foot mobile screening bus travels throughout Central Mississippi conducting both screenings and education programs for school-age children and the elderly. Care-A-Van targets segments of the community in which there is an identified need. In fact, the majority of the children screened come from families who do not have access to available preventive health care resources. Like the Health Clinic, Care-AVan serves a segment of the population that is underserved by the Government. In 2010, the Care-A-Van program served 9,551 children and senior adults through its programs and services.
THE IMPACTED HEALTH PLANS
69. The Biloxi Diocese operates two self-insured health plans, one for its clergy and one for all other employees (collectively, the "Biloxi Plan"). It does not contract with a separate insurance company to provide health care coverage to its employees. Instead, the Diocese itself functions as the insurance company, underwriting its employees' medical costs. The Diocese contracts with Select Administrative Services to provide certain claims administration services. The Biloxi Plan does not cover abortion-inducing drugs or sterilization. Contraceptives are not covered by the plan unless they are necessary for medically diagnosed conditions. Plaintiffs Catholic Social Services, de I'Epee, Resurrection Catholic and Sacred Heart offer coverage to their employees through the Biloxi Plan.
70. The Biloxi Plan year begins on July 1. 71. The Jackson Diocese operates three self-insured health plans (collectively, the "Jackson Plan"). Plaintiffs Catholic Charities, Vicksburg Catholic, and St. Joseph offer coverage for their employees through the Jackson Plan. A third-party administrator, Boon-Chapman manages benefit applications, claims processing, and payment of claims for the Jackson Plan on
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behalf of the Jackson Diocese. The Jackson Plan does not cover abortion-inducing drugs, sterilization, or contraceptives.
72. The Jackson Plan year begins on October I. 73. St. Dominic participates in a single self-insured health plan (the "St. Dominic Plan") which offers coverage to the more than 2,200 full-time employees of the hospital. A thirdparty administrator, Fox/Everett, Inc., manages benefit applications, claims processing, and payment of claims for the St. Dominic Plan. The St. Dominic Plan does not cover abortioninducing drugs, sterilization, or contraceptives. 74. The St. Dominic Plan year begins on July I. 75. "[TJhe Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23,2010.,,3 These so-called "grandfathered health plans do not have to meet the requirements" of the Mandate, but only so long as the plans offer substantially the same benefits at substantially the same costS.4 76. Plaintiffs believe that the Biloxi Plan and Jackson Plan currently meet the Affordable Care Act's definition of a "grandfathered plan." As a result, each Diocese has included a statement describing its grandrathered status in its Plan materials, as required by 26 C.F.R. § 54.9815-1251 T(a)(2)(ii). 77. St. Dominic also believes that the St. Dominic Plan currently meets the Affordable Care Act's definition ofa "grandfathered plan." The Plan materials include a
3 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726,41,731 (July 19,2010); 42 U.S.c. § 18011.
475 Fed. Reg. at 41731; 26 C.F.R. § 54.9815-1251 T(g); 45 C.F.R. § 147.140(g); 29 C.F.R. § 2590.715-12S1(g).
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statement describing its grandfathered status, as required by 26 C.F.R. § 54.98151251 T(a)(2)(ii). 5
78. To maintain their putative grandfathered status, however, Plaintiffs are locked into their current health plans, unable to adjust them in response to the ever-changing healthcare marketplace. To avoid compromising their core religious beliefs, Plaintiffs are stuck in perpetuity with providing their current plans and forgoing necessary modifications that would benefit plan participants and affiliated Catholic organizations.
79. In any event, Plaintiffs' plans inevitably will lose their grandfathered status in the near future for reasons that cannot be avoided. For example, the employer contribution to the premium cannot decrease by more than 5% of the cost of coverage compared to the employer contribution on March 23, 2010 6 Even the Government acknowledges that, as health costs escalate, the number of grandfathered health plans will decrease substantially in the near future. 7
80. For the plan year ending June 30, 2013, the Biloxi Plan operated at such a loss that the Biloxi Diocese was forced to loan the Plan $250,000. That trend obviously cannot continue, and it demonstrates that the Biloxi Plan will inevitably lose grandfathered status in the near future. In fact, if not for the need to maintain grandfathered status, the Biloxi Plan already would have pared back benefits, increased the deductible, or taken other measures to mitigate its losses and stabilize itself.
5 See also 45 C.F.R. § 147.140(a)(2); 29 C.F.R. § 2590.715-12SI(a)(2). 6 26 C.F.R. §54.9815-125IT(g)(l)(v); 45 C.F.R. § 147.140(g)(l)(v); 29 C.F.R. § 2590.715-1251 (g)(l lev). 7 See 75 Fed. Reg. 41,726, 41,731 (July 19, 2010).
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STATUTORY AND REGULATORY BACKGROUND
THE AFFORDABLE CARE ACT
81. On March 23,2010, Congress enacted the Affordable Care Act8 The Act established many new requirements for "group health plan[s]," broadly detined as "employee welfare benefit plan[s]" within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[J medical care ... to employees or their dependants." 42 U.S.C. § 300gg-91(a)(1).
82. As relevant here, the Act requires an employer's group health plan to cover women's "preventive care." Specifically, it indicates that: "[a] group healfh 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 Healfh Resources and Services Administration for purposes of fhis paragraph." 42 U.S.C. § 300gg-13(a)(4)). Because the Act prohibits "cost sharing requirements," the health plan must pay for the full cost of these "preventive care" services without any deductible or co-payment.
83. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.,,9 These so-called "grandfathered health plans do not have to meet fhe requirements" of the Mandate. 75 Fed. Reg. at 41 ,731 (July 9, 2010). HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id at 41,732.
8 See Pub. L. No. 111-148, 124 Stat. 119. 9 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and AtTordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.c. § 18011.
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84. Federal law provides several mechanisms to enforce the requirements of the Act, including the Mandate. For example:
(a) Under the IRC, certain employers who fail to offer "full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan" will be exposed to annual fines of $2,000 per full-time employee. I 0
(b) Under the IRC, group health plans that fail to provide certain required coverage may be subject to a penalty of $1 00 a day per covered individual. 11
(c) Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 12
(d) Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the Mandate, as incorporated by ERISA 13 85. The Act's provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the "preventive care" should exclude all abortion-related services. 86. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution's refusal to provide abortion-related services. Specifically, it states that "[n]one of the funds made available in this Act [to the Department of Labor and the HHS] may be made available to a Federal agency or program ... if
10 See 26 U.S.C. § 4980H(a), (c)(l). II See 26 U.S.c. § 4980D(b). 12 29 U.S.C. § l132(a)(l)(B); see also Congo Research Serv., RL 7-5700. 13 See 29 U.S.c. § 1132(b)(3); see also Congo Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the "preventive care" provision of the Affordable Care Act).
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such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.,,14
87. The Act, therefore, was passed on the fundamental premise that all agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit
federal funding of abortion services. See Exec. Order No. 13535,75 Fed. Reg. 15,599 (Mar. 24,
2010).
THE EVOLVING MANDATE
88. Less than two years later, however, Defendants promulgated the Mandate, subverting Congress's clear intent to protect the rights of conscience. The Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the substantial burden that the Mandate imposes on Plaintiffs' religious beliefs. To the contrary, these revisions have resulted in a Final Rule that is significantly worse than the original rule.
THE ORIGINAL MANDATE
89. On July 19, 20 10, Defendants issued initial interim final rules addressing the statutory requirement that group health plans provide coverage for women's "preventive care." 75 Fed. Reg. 41,726. These interim rules did not define "preventive care," instead noting that "[t]he Department of HHS is developing these guidelines and expects to issue them no later than August I, 2011." ld. at 41,731.
14 Consolidated Appropriations Act, 2012, Pub. L. No. 112-74, div. F, tit. Y, § 507(d)(l), 125 Stat 786, 1111 (20 II). The term "health care entity" is defined to include, among other things, "a health insurance plan." Jd. § 507(d)(2).
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90. To develop the definition of "preventive care," HHS outsourced its deliberations to the Institute of Medicine ("10M"), a non-governmental "independent" organization. The 10M in turn created an ad hoc "Committee on Preventive Services for Women," composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with "pro-choice" advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
91. The 10M Committee invited presentations from several "pro-choice" groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the end of each meeting.
92. At the close of this process, on July 19, 2011, the laM issued a final report recommending that "preventive care" for women be defined to include "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.,,15
93. The pervasive bias of the 10M process spurred one member ofthe Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: "[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee's composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.,,16
IS Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps," at 109-10 (2011).
16 I d. at 232.
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94. Less than two weeks after the 10M report, without pausing for comment, HHS issued a press release on August 1,2011, announcing that it would adopt the 10M's definition of "preventive care" in its entirety, including all "FDA-approved contraception methods and contraceptive counseling.,,17 HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the 10M Committee and stated that it had "relied on independent physicians, nurses, scientists, and other experts" to reach a definition that was "based on scientific evidence." Under the final "scientific" definition, the category of mandatory "preventive care" extends to "[alII Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.,,18
95. The Government's definition of mandatory "preventive care" also includes abortion-inducing drugs. For example, the FDA has approved "emergency contraceptives," such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
THE ORIGINAL EXEMPTION
96. Shortly after announcing its definition of "preventative care," the Government proposed a narrow exemption from the Mandate for a small category of "religious employers" that met all of the following four criteria: "(I) The inculcation of religious values is the purpose of the organization"; "(2) The organization primarily employs persons who share the religious
17 See U.S. Dept. of Health and Human Services, "Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost," available at http://www.hhs.gov/news/press/2011 pres/08/20 110801 b.htrnl.
18 See "Women's Preventive Services: Required Health Plan Coverage Guidelines," http://www.hrsa.gov/womensguidelines.
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tenets of the organization"; "(3) The organization serves primarily persons who share the religious tenets of the organization"; and "(4) The organization is a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.,,19
97. The Government admitted that this narrow exemption was intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions.,,2o It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
THEANPRM 98. The sweeping nature of the Mandate was subject to widespread criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. 99. The Government initially refused to reconsider its position. Instead, it "finalize[d], without change," the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15,2012). At the same time, the Government announced that it would otTer "a oneyear safe harbor from enforcement" for religious organizations that remained subject to the Mandate. Id. at 8,728. 100. A month later, the Government issued an Advance Notice of Proposed Rulemaking ("ANPRM") that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the Mandate, and in fact reaffirmed the Government's view at the time that the original exemption
19 76 Fed. Reg. at 46,626 (Aug. 3,2011) (codified at 45 C.F.R. § 147. 130(a)(l)(iv)(8)). 20 Id. at 46,623.
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would not be expanded. Jd. at 16,501-08. Instead, the ANPRM offered hypothetical "possible approaches" that would, the Government claimed, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507.
THE FIRST LAWSUIT AND THE GOVERNMENT'S PROMISE OF NON-ENFORCEMENT
101. On May 21, 2012, Plaintiffs filed a lawsuit in this Court in which they argued, inter alia, that the Mandate violated their rights under RFRA and the First Amendment. See Catholic Diocese ofBiloxi, et al v. Sebelius et al., Docket No.1: 12-cv-158-HSO-RHW (S.D. Miss.). In response to this and similar litigation, the Government promised that "these regulations almost certainly will never be enforced against plaintiffs," and represented that it was planning to modify the regulations to accommodate religious organizations with religious objections to contraceptive coverage before the safe harbor expired in August 2013. Jd.,Defs.' Reb. Br. [Dkt. # 27] at 5.
102. According to the Government, "the forthcoming amendments [were] intended to address the very issue that plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious organizations' religious objections to covering contraceptive services." Mem. of Law in Support of Defs.' Mot. to Dismiss [Dkt. # 16] at 17. Indeed, the Government assured the Court, "[o]nce defendants complete the rulemaking outlined in the ANPRM, plaintiffs' challenge to the current regulations likely will be moot." Jd. at 18.
103. In their Complaint and in response to the Government's motion to dismiss, Plaintiffs made clear that the ANPRM, even if adopted, would still require Plaintiffs to provide, pay for, and/or facilitate the provision of objectionable insurance coverage for their employees
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and, therefore, would not relieve the burden on their religious exercise. See Compl. [Ok!. # I] ~ 108; Pis.' Mem. Br. in Opp., [Ok!. # 23] at 31.
104. Confronted with these allegations, the Government assured the Court that "the ANPRM [was] a mere starting point, and plaintiffs [would] have ample opportunity to express their concerns and help shape the forthcoming amendments." Defs.' Reb. Br. [Ok!. # 27], at 12. The Government further stated that the Defendants "ha[d] begun the process of amending the regulations for the very purpose of addressing the religious objections to covering contraception by religious organizations like plaintiffs," and that "Plaintiffs' baseless conjecture that defendants will not do what they say they will do - and are currently doing - does not constitute an imminent injury for standing purposes." Id. at 4.
105. Based on the Government's representations, the district court granted the Government's motion to dismiss (without prejudice) for lack of ripeness to await the outcome of the ongoing rulemaking process. See Catholic Diocese ofBiloxi, et al v. Sebelius et al., Docket No. 1:12-cv-158, Order [Ok!. # 62], at 12-15.
THE NPRM 106. On February 1,2013, the Government issued a Notice of Proposed Rulemaking ("NPRM"), setting forth in further detail its proposal to "accommodate" the rights of Plaintiffs and other religious organizations. Like the Government's previous proposals, the NPRM was once again met with strenuous opposition, including more than 400,000 comments. 107. Despite this strenuous opposition, on June 28, 2013, the Government issued the Final Rule that adopted substantially all of the NPRM's proposal. See 78 Fed. Reg. 39,870 (July 2,2013).
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108. The Final Rule makes three changes to the Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them significantly increases that burden by increasing the number of religious organizations subject to the Mandate.
109. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of "religious employer." In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt "religious employer" is simply "a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) ofthe Internal Revenue Code of 1986, as amended." See 78 Fed. Reg. 39,874 (July 2, 2013). This new definition does "not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final regulations." Id. Instead, it continues to "restrict[] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders." 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). In this respect, the Exemption in the Final Rule is, in substance, virtually identical to the original "religious employer" exemption, which was intended to focus on "the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government's view, "religious employers."
110. The "religious employer" Exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The Exemption applies only to those groups that are "referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code," which includes only (i) "churches, their integrated auxiliaries, and conventions or associations of
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churches," and (iii) "the exclusively religious activities of any religious order." The IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation ofHuman Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these 14 factors is whether the group has" a recognized creed and form of worship," "a definite and distinct ecclesiastical government," "a formal code of doctrine and discipline," "a distinct religious history," "an organization of ordained ministers," "a literature of its own," "established places of worship," "regular congregations," "regular religious services," "Sunday schools for the religious instruction of the young," and "schools for the preparation of its ministers." Id. These factors require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
Ill. Second, the Final Rule establishes an illusory "accommodation" for certain nonexempt objecting religious entities that qualify as an "eligible organization." An "eligible organization" is one that must (i) "oppose[] providing coverage for some or all of any contraceptive services," (ii) be "organized and operatell as a non-profit entity"; (iii) "holdll itself out as a religious organization;" and (iv) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance provider or, if the religious organization is self-insured, to its third party administrator21 Providing this self-certification automatically requires the insurance provider or third-party administrator to procure or arrange "payments for contraceptive services" for the organization's employees, without imposing any
21 26 CFR § 54.9815-2713A(a), (b)(ii), (c); 29 C.F.R. § 2590.715-2713A(a), (b)(ii), (c); 45 CFR § 147.131(b), (c)(l).
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"cost-sharing requirements (such as copayment, coinsurance, or a deductible).,,22 The o~jectionable coverage is directly tied to the organization's health plan, lasting only as long as the employee remains on that plan.23 In addition, self-insured organizations are expressly
prohibited from "directly or indirectly, seek[ing] to influence the[ir] third party administrator's decision" to provide or procure contraceptive services.24
112. This so-called "accommodation" fails to relieve the burden on religious
organizations. Under the original version of the Mandate, a non-exempt religious organization's
decision to offer a group health plan resulted in the provision of coverage for abortion-inducing
products, contraception, sterilization, and related counseling. Under the Final Rule, a non-
exempt religious organization's decision to offer a group health plan still results in the provision
of coverage -- now in the form of "payments" -- for abortion-inducing products, contraception, sterilization, and related counseling25 In both scenarios, Plaintiffs' decision to provide a group
health plan triggers the delivery of "free" contraceptive coverage to their employees in a manner
contrary to their beliefs. The provision of the objectionable products and services are directly
tied to Plaintiffs' health plans, as the objectionable "payments" are available only so long as an employee is on the organization's health plan.26 Moreover, for self-insured organizations, the self~certification constitutes the religious organization's "designation ofthe third party
22 26 CFR§ 54.9815-27 I 3A(b)(2), (c)(2); 29 CFR § 2590.715-2713A(b)(2), (c)(2); 45 CFR § l47.131(c)(2).
23 See 26 CFR § 54.9815-2713A(c)(2)(B); 29 CFR § 2590.71S-2713A(c)(2)(B); 45 CFR § 147. 13 I (c)(2)(i)(B).
24 26 CFR § 54.98IS-2713A(b)(I)(iii); 29 CFR § 2590.715-2713A(b)(l)(iii). 25 26 CFR § 54.9815-2713A(b)-(c); 29 CFR § 2590.715-2713A; 45 CFR § 147.131(c). 26 See 29 CFR § 2590.715-27l3A (for selt~insured employers, the third-party administrator "will provide separate payments for contraceptive services ... for so long as [employees are] enrolled in [their] group health plan"); 45 CFR § 147.131 (c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must "[p]rovide separate payments for any contraceptive services ... for plan participants and beneficiaries for so long as they remain enrolled in the plan").
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administrator(s) as plan administrator and claims administrator for contraceptive benefits." 78 Fed. Reg. at 39,879 (July 2, 2013) (emphasis added). Thus, employer health plans offered by non-exempt religious organizations remain the vehicle by which "free" abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations' employees.
113. The shell game described above does not address Plaintiffs' fundamental religious objection to having to take affirmative action to facilitate their employees' access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into providing their employees access to "free" contraception, abortion-inducing products, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
114. The so-called "accommodation," moreover, requires Plaintiffs to cooperate in providing objectionable coverage in other ways. For example, to be eligible for the so-called "accommodation," Plaintiffs must execute and deliver a "certification" to their insurance provider or third-party administrator setting forth their religious objections to the Mandate. The delivery of this "certification," in turn, "automatically" triggers an obligation on the part ofthe insurance company or third-party administrator to provide Plaintiffs' employees with objectionable coverage or to arrange for the provision of objectionable coverage. 78 Fed. Reg. 8,463 (Feb. 6,2013).
115. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable coverage will be "cost neutral" and, therefore, Plaintiffs will not actually be paying for it, notwithstanding that Plaintiffs' premiums are the only source of funding that their insurance providers will receive for the objectionable
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products and services. This assertion assumes that cost "savings" from "fewer childbirths" will be at least as large as the direct costs of paying for contraceptive coverage and the costs of administering individual policies. 78 Fed. Reg. at 8,463 (Feb. 6, 2013). Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others will use contraception regardless of whether it is free. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost "savings" from "fewer childbirths" will offset the cost of providing contraceptive services.
116. Even if the Government's "cost-neutral" assertion were true, it is irrelevant. The so-called "accommodation" is nothing more than a shell game. Premiums previously paid by Catholic organizations to cover, for example, "childbirths," will now be redirected to pay for contraceptive products and services. Thus, Catholic organizations are still required to pay for the objectionable products and services.
117. For self-insured organizations, the Government's "cost-neutral" assumption is likewise implausible. The Government asserts that third-party administrators required to procure the objectionable products and services for self-insured organizations subject to the accommodation will be compensated via reductions in the user fees required for participation in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882-86 (July 2, 2013); 26 C.F.R. § 54.9815-2713A(b)(3); 45 C.F.R. § 156.50(d). Such fee reductions will have to be established through a highly regulated and bureaucratic process. The actual reduction in user fees likely will not compensate fully the regulated entities for the costs and risks associated with providing or procuring the objectionable coverage for those religious organizations that qualify for the "accommodation" and with complying with the Final Rule's regulatory framework. As a result,
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few if any third-party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
118. For all ofthese reasons, the Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
119. Third, the Final Rule actually increases the number of religious organizations that are subject to the Mandate. Under the Government's initial "religious employer" definition, if a nonexempt religious organization "provided health coverage for its employees through" a plan offered by a separate, "affiliated" organization that was "exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees. ,,27
120. For example, the Biloxi Diocese operates a self-insurance plan that covers not only the Diocese itself, but other affiliated Catholic organizations -- including Catholic Social Services, de l'Epee, Resurrection Catholic, and Sacred Heart. The same goes for the Jackson Diocese, which operates a self-insurance plan that covers affiliated Catholic organizations, including Catholic Charities, St. Joseph, and Vicksburg Catholic. Under the exemption as originally proposed, ifthe Dioceses were exempt "religious employers," then the affiliated covered entities received the benefit of that exemption, regardless of whether they independently qualified as "religious employers," since they could continue to participate in the Dioceses' exempt plans.
121. The Final Rule eliminates this safeguard. It provides that "each employer" must "independently meet the definition of religious employer or eligible organization in order to avail
27 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
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itself of the exemption or an accommodation with respect to its employees and their covered dependents.,,28 Since Catholic Social Services, de l'Epee, Resurrection Catholic, Sacred Heart, Catholic Charities, St. Joseph, and Vicksburg Catholic do not appear to meet the Government's narrow definition of "religious employers," they are or could be subjected to the Mandate 29
122. Moreover, since Catholic Social Services, de l'Epee, Resurrection Catholic, and Sacred Heart are all part of the Biloxi Diocese's self-insurance plan, the Diocese now apparently is required by the Mandate either to: (a) sponsor a plan that will provide the employees of Catholic Social Services, de l'Epee, Resurrection Catholic, and Sacred Heart with "free" contraception, abortion-inducing products, sterilization, and related counseling; or (b) expel these organizations from its health plan (and thereby force them to enter into an arrangement with another insurance provider that will, in turn, provide the objectionable products and services). Either way, the Mandate compels the Biloxi Diocese to act contrary to its sincerelyheld religious beliefs.
123. The Jackson Diocese faces a similar dilemma. Catholic Charities, St. Joseph, and Vicksburg Catholic are part of the Jackson Diocese's health plan, and those entities do not appear to qualify for the current version of the Exemption. Thus, the Jackson Diocese faces the same two intolerable choices.
124. In this respect, the Mandate seeks to divide the Catholic Church. The Church's faith in action, carried out through its charitable and educational arms, is every bit as central to
28 78 Fed. Reg. 39,886 (July 2, 2103). See also 78 Fed. Reg. at 8,467 (Feb. 6, 2013) (NPRM).
29 Sacred Heart and Resurrection Catholic believe that they are exempted from the Mandate because they are parish schools under 26 U.S.c. § 6033(a). However, they seek a declaration of their rights in the face of the uncertainty generated by the Mandate and Defendants' regulatory positions.
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the Church's religious mission as is the administration of the Sacraments. Yet the Mandate seeks to separate these aspects of the Catholic faith, treating one as "religious" and the other as not.
125. In sum, the Final Rule not only fails to alleviate the burden that the Mandate imposes on Plaintiffs' religious beliefs, it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate.
THE MANDATE SUBSTANTIALLY BURDENS PLAINTIFFS' RELIGIOUS LIBERTY
126. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, "[nlo provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
127. The Mandate violates Plaintiffs' rights of conscience by forcing them to participate in an employer-based scheme to provide services and products to their employees to which they strenuously object on moral and religious grounds.
128. It is a core tenet of Plaintiffs' religion that abortion, contraception, and sterilization are serious moral wrongs.
129. Plaintiffs' Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization. Further, their beliefs prohibit them from paying for, providing, and/or facilitating speech presenting abortion-inducing products, contraception, or sterilization as acceptable options.
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130. As a corollary, Plaintiffs' religious beliefs prohibit them from contracting with an insurance company or third-party administrator that will, as a direct result, procure or provide the objectionable coverage to Plaintiffs' employees.
131. The Mandate requires Plaintiffs to do precisely what their religious beliefs prohibit -- (a) provide, pay for, and/or facilitate access to objectionable products, services, and/or speech, or else (b) incur crippling sanctions.
132. The Mandate therefore imposes a substantial burden on Plaintiffs' religious beliefs and violates their religious liberty.
133. The Mandate's narrow Exemption for "religious employers" does not alleviate the burden.
134. The Exemption appears not to apply to Catholic Social Services, de I'Epee, St. Dominic, Catholic Charities, St. Joseph, Vicksburg Catholic, and perhaps other Plaintiffs, including Resurrection Catholic and Sacred Heart.
135. Although the Biloxi Diocese and Jackson Diocese appear to be "religious employers," the Mandate still burdens their sincerely-held religious beliefs by requiring them either to (a) sponsor a plan that will provide objectionable coverage to those that work for affiliated-but-not-exempt Catholic organizations; or else (b) expel those affiliates from their insurance plans.
136. Both alternatives violate the Plaintiffs' sincerely-held religious beliefs. 137. Because St. Dominic operates its own self-insurance plan and does not appear to qualify as a "religious employer" under the Exemption, St. Dominic will be forced to "certify" its religious objection to the Mandate, thereby providing its employees with coverage for contraception, abortion-inducing drugs, sterilization, and related counseling.
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138. The result is a violation of St. Dominic's sincerely-held religious beliefs. 139. The so-called "accommodation" does not alleviate Plaintiffs' burden. Notwithstanding the "accommodation," Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services, in violation oftheir religious beliefs. 140. Finally, the Plaintiffs cannot avoid the Mandate without incurring crippling fines. If they eliminate their health plans, they are subject to annual fines of $2,000 per full-time employee. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $1 00 per affected beneficiary. 141. Unless and until this issue is definitively resolved, the Mandate does and will continue to impose a substantial burden on Plaintiffs' religious beliefs.
THE MANDATE Is NOT A NEUTRAL LAW
OF GENERAL ApPLICABILITY
142. The Mandate offers multiple exemptions from its requirements that employerbased health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who expressly disagree with Plaintiffs' religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment. Consequently, it is not a neutral law of general applicability.
143. For example, the Mandate exempts all "grandfathered" plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the Government has admitted, while the numbers are expected to diminish over time, "98 million individuals will be enrolled in grandfathered group health plans in 2013.,,)0 Elsewhere, the
30 75 Fed. Reg. 41,726, 41732 (July 19,2010). 37

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government has put the number at 87 million.31 And according to one district court in 2012, "191 million Americans belong[ed] to plans which may be grandfathered under the ACA." Newland v. Sebelius, 881 F. Supp.2d 1287, 1291 (D. Colo. 2012).
144. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. 32
145. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the IRe. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt "religious employers," but not for other religious organizations -- likely including, for example, Catholic Social Services, de l'Epee, Catholic Charities, St. Joseph, Vicksburg Catholic, St. Dominic, and possibly including Sacred Heart and Resurrection Catholic-- that remain subject to the Mandate.
146. The Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, the Mandate was modeled on a California law that was expressly motivated by discriminatory intent against religious groups that oppose contraception.
147. Consequently, Plaintiffs allege that the purpose of the Mandate, including the narrow Exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
31 See "Keeping the Health Plan You Have" (June 14,2010), http://www.healthcare.govInews/factsheets120 IOl06/keeping-the-health-plan-you-havegrandfathered.html.
32 See 26 U.S.e. 4980D(d) (exempting small employers from the assessable payment for failure to provide health coverage), 4980H(a) (exempting small employers from penalties imposed for failing to provide the objectionable services).
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THE MANDATE Is NOT THE LEAST RESTRICTIVE MEANS OF FURTHERING A COMPELLING
GOVERNMENTAL INTEREST
148. The Mandate is not narrowly tailored to serve a compelling governmental interest. 149. The Government has no compelling interest in conscripting Plaintiffs to participate in a scheme for the provision of abortion-inducing drugs, sterilizations, contraceptives and related education and counseling. The Government itself has relieved numerous other employers from this requirement by, among other things, arbitrarily delaying enforcement of the Mandate as to certain employers, exempting grandfathered plans, and exempting plans of employers it deems to be sufficiently religious. Moreover, these products and services are already widely available in the United States. 150. Even assuming the interest is compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state statutes throughout the country and in other federal laws. The Government cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means offurthering its claimed interest. 151. The Mandate, moreover, would simultaneously undermine both religious freedom -- a fundamental right enshrined in the U.S. Constitution -- and access to the wide variety of social and educational services that Plaintiffs provide. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do "more good for a community than a government program ever could." The Mandate, however, puts these good works in jeopardy.
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152. Accordingly, Plaintiffs seek a declaration that the Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
THE MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY THAT SHOULD BE REMEDIED By A COURT
153. The Mandate is causing serious, ongoing hardship to Plaintiffs that merits immediate relief.
154. On June 28, 2013, Defendants finalized the Mandate, including the narrow Exemption and the so-called "accommodation." By the terms of the Final Rule, Plaintiffs must comply with the Mandate by the beginning of the next plan year on or after January 1, 2014.
ISS. For the Biloxi Diocese, Catholic Social Services, de l'Epee, Resurrection Catholic, Sacred Heart, and St. Dominic, the next plan year begins on July I, 2014.
156. For the Jackson Diocese, Catholic Charities, Vicksburg Catholic, and St. Joseph, the next plan year begins on October I, 2014.
157. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs' rights. Consequently, absent the relief sought herein, Plaintiffs will soon be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation oftheir sincerely-held religious beliefs.
158. The Mandate is also harming Plaintiffs in other ways. 159. The process of determining the healthcare package for a plan year requires a substantial amount of lead time before the plan year actually begins. Generally, the benefits department for St. Dominic must begin budgeting and planning for its health plan approximately 12 months ahead of the start of a plan year in order to analyze, vet, and implement changes. Because the st. Dominic Plan is self-insured, St. Dominic's benefits department must analyze
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historical data, evaluate potential changes, work with consultants to model and analyze potential changes, and compare potential change options. The benefits department must then develop options to be presented to the committee that is responsible for benefits issues. The potential changes are discussed and debated with the committee during a three to four month period, and a proposal must be finalized at least nine months in advance of the start of the next plan year. The multiple levels of uncertainty surrounding the Mandate make this already lengthy process even more complex.
160. Similarly, under normal circumstances -- when making only minor changes to its health plan -- the Biloxi Diocese needs at least four months oflead time for its insurance committee to analyze, vet, and recommend any plan changes to Bishop Morin. Generally, because the Biloxi Plan is self-insured, there is a need to analyze historical data, identify and evaluate potential changes, work to analyze potential changes, and compare potential change options. The Biloxi Diocese's insurance committee must then develop and vote upon options and make recommendations to be presented to Bishop Morin for his consideration and final decision. The potential proposal must then be approved and finalized to be implemented by the start of the next plan year. Likewise, the Jackson Plan needs months of lead time to analyze, vet and recommend any changes to Bishop Kopacz.
161, If Plaintiffs decide not to comply with the Mandate, they may be subject to government fines and penalties, and claims for damages by private parties. Plaintiffs require time to budget for any such additional expenses. Specifically, the Biloxi Diocese needs to begin budgeting for such major general expenses approximately one year in advance of the beginning of the relevant fiscal year on July I. Similarly, St. Dominic must begin budgeting for such major general expenses approximately five months before the beginning ofthe next fiscal year on
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January 1. Likewise, the Jackson Diocese begins its budgeting process months in advance of the beginning of a new fiscal year.
162. The Mandate and its uncertain legality undermine Plaintiffs' ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the Mandate.
163. Thus, the Mandate, including its requirement that Plaintiffs choose between violating their sincerely-held religious beliefs and suffering substantial monetary liability, is currently injuring Plaintiffs.
164. Further, the Government-imposed dilemma that Plaintiffs face between continuously maintaining the grandfathered status of their group health plans -- which severely limits the changes that can be made to their plans in response to increasing healthcare costs -and becoming subject to the Mandate is causing injury now. St. Dominic has considered making certain beneficial changes to its Plan since March 23, 20 I 0, and would have made those changes if not for the need to maintain grandfathered status. Specifically, after March 23,2010, St. Dominic would have increased premium employee contributions up to 10% for health coverage, but could not do so without losing its grandfathered status. Moreover, going forward, St. Dominic would consider making and would make certain additional changes to its health plan if not for the risk of losing grandfathered status. Deductible and co-pay increases have been made in the past, and, but for the risk of losing grandfathered status, would be considered in the future because they are prudent and in the best interest of St. Dominic's employees. Increasing the deductibles and co-pays lowers premiums, which is in the best interests of employees who are healthy and want to save money. Additionally, increasing the deductible lowers St. Dominic's contribution, which is necessary in light of current economic circumstances.
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165. Similarly, the Biloxi Diocese has considered making certain beneficial changes to the Biloxi Plan since March 23, 2010, and would have made those changes ifnot for the need to maintain grandfathered status. Specifically, after March 23, 2010, the Biloxi Diocese would have increased employee contributions for health coverage above the levels allowed for retaining grandfathered status. Indeed, in preparing for the plan year beginning July 1,2013, the Biloxi Diocese considered decreasing benefits and changing the coinsurance ratio so as to 0 ffset the staggering losses facing the Plan. The Biloxi Diocese rejected those potential changes -- which would have helped to stabilize the Plan -- because they would have caused the Biloxi Plan to lose its grandfathered status. Thus, because of the need to maintain the Plan's grandfathered status, the Biloxi Diocese has been forced to bear almost all of the increased premium costs since March 23,2010.
166. The increased premium payments have resulted in more money being spent by the Biloxi Plaintiffs to cover increased employee health premiums, with a corresponding reduction in the funds available for other religious ministries. Moreover, going forward, if not for the risk oflosing grandfathered status, the Biloxi Diocese and its affiliates would consider making certain additional changes to the Biloxi Plan. For example, for the months of April, May, June, and July 2012, respectively, there was a combined monthly shortfall with regard to revenues and expenditures of the Biloxi Plan of $188,000.68, $204,220.93, $284,917.48, and $272,163.96. Bishop Morin, as head of the Diocese, would like to significantly increase the employees' premium contribution as well as pare back coverage under the Biloxi Plan in order to keep the Plans solvent, but cannot do so without jeopardizing grandfathered status. The Jackson Diocese has likewise experienced significant increased expenses as a result of its efforts to maintain grandfathered status.
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167. A significant portion of the budget and planning sessions for the Biloxi Diocese and St. Dominic each year necessarily entails analyzing the grandfathered status of the Biloxi Plan and the St. Dominic Plan. In fact, since March 20 I0, St. Dominic has spent more than $9,000 on professional services in order to ensure that the St. Dominic Plan maintains its grandfathered status. Similarly, the Biloxi Diocese has spent more than $8,000 on professional fees in order to ensure that the Biloxi Plan remains grandfathered. Similarly, the Jackson Diocese has expended funds and time to ensure the Jackson Plan remains grandfathered. The money and time that Plaintiffs have had to spend on these issues could have been spent addressing other significant budgetary and operational issues, or it could have been spent providing services to the poor and needy.
168. In sum, an actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity and applicability of the Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries, as described herein.
169. Plaintiffs need judicial relief now in order to end the serious, ongoing harm that the Mandate is already imposing on them and to prevent the additional, imminent injuries that they ",ill suffer in the near future.
170. Plaintiffs have no adequate remedy at law.
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CAUSES OF ACTION
COUNT I
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF RFRA
171. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 170 hereinabove.
172. RFRA prohibits the Government from substantially burdening an entity's exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden (a) furthers a compelling governmental interest, and (b) is the least restrictive means of furthering that interest.
173. RFRA protects organizations as well as individuals from substantial Governmentimposed burdens on religious exercise.
174. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
175. The Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.
176. The Mandate substantially burdens Plaintiffs' exercise of religion. 177. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate. 178. Requiring Plaintiffs to comply with the Mandate is not the least restrictive means of furthering any compelling governmental interest. 179. By enacting and threatening to enforce the Mandate against Plaintiffs, Defendants have violated RFRA. 180. Plaintiffs have no adequate remedy at law.
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181. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II
SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE IN VIOLATION OF THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT
182. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 170 hereinabove.
183. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion.
184. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise.
185. The Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.
186. The Mandate substantially burdens Plaintiffs' exercise of religion. 187. The Mandate is not a neutral law of general applicability, because it is riddled with arbitrary exemptions for which there is not a consistent, legally defensible basis. 188. The Mandate is not a neutral law of general applicability because it was passed with discriminatory intent. 189. The Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, to freedom from excessive government entanglement with religion, to freedom from favoritism with respect to religious groups, and to freedom of association. 190. The Government has no compelling interest to require Plaintiffs to comply with the Mandate.
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191. The Mandate is not narrowly tailored to further a compelling governmental interest.
192. By enacting and threatening to enforce the Mandate, the Government has burdened Plaintiffs' religious exercise in violation of the Free Exercise Clause of the First Amendment.
193. Plaintiffs have no adequate remedy at law. 194. The Mandate and its impending enforcement impose an ongoing harm on Plaintiffs that warrants immediate relief.
COUNT III
COMPELLED SPEECH IN VIOLATION OF THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT
195. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 through 170 hereinabove.
196. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable.
197. The First Amendment protects organizations as well as individuals against compelled speech.
198. Expenditures are a form of speech protected by the First Amendment. 199. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious beliefs. 200. The Mandate would compel Plaintiffs to provide healthcare plans to their employees that include or facilitate access to products and services that violate their religious beliefs.
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201. The Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services.
202. The Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would directly cause the provision of objectionable products and services to Plaintiffs' employees.
203. By imposing the Mandate, Defendants are compelling Plaintiffs publicly to subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and to engage in speech that will result in the provision of objectionable products and services to Plaintiffs' employees.
204. The Mandate is subject to strict scrutiny. 205. The Mandate furthers no compelling governmental interest. 206. The Mandate is not narrowly tailored to further a compelling governmental interest. 207. Plaintiffs have no adequate remedy at law. 208. Defendants are imposing an ongoing harm on Plaintiffs that warrants immediate relief.
COUNT IV
PROHIBITION OF SPEECH IN VIOLATION OF THE FIRST AMENDMENT
209. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraph 1 tlrrough 170 hereinabove.
210. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral.
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211. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might "influence," "directly or indirectly," the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs' employees.
212. Plaintiffs have no adequate remedy at law. 213. Defendants are imposing an ongoing harm on Plaintiffs that warrants immediate relief.
COUNT V
OFFICIAL "CHURCH" FAVORITlSM AND EXCESSIVE ENTANGLEMENT WITH RELIGION IN VIOLATlON OF THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT
214. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs 1 through 170 hereinabove.
215. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a "religious employer" that favors some religious groups while excluding others.
216. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government's favored definition.
217. The "religious employer" Exemption violates the Establishment Clause in two ways.
218. First, it favors some religious groups over others by creating an official definition of "religious employers." Religious groups that meet the Government's official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not.
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219. Second, the Exemption requires the Government to make intrusive judgments regarding religious beliefs, doctrines, and organizational features. For instance, the issue of whether groups qualify as "religious employers" turns on an intrusive 14-factor test used to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has "a distinct religious history" or "a recognized creed and form of worship." But it is not the Government's place to determine whether a group's religious history is "distinct," or whether the group's "creed and form of worship" are "recognized." By directing the Government to partake of such inquiries, the Exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
220. Plaintiffs have no adequate remedy at law. 221. Defendants are imposing an ongoing harm on Plaintiffs that warrants immediate relief.
COUNT VI
INTERFERENCE IN MATTERS OF INTERNAL CHURCH GOVERNANCE IN VIOLATION OF THE RELIGION CLAUSES OF THE FIRST AMENDMENT
222. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs I through 170 hereinabove.
223. The Free Exercise and Establishment Clauses and RFRA collectively serve to protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
224. Under these Clauses and RFRA, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine.
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225. Under these Clauses and RFRA, the Government may not interfere with a religious organization's internal decision if that interference would affect the faith and mission of the organization itself.
226. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 227. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 228. Plaintiffs have abided by and must continue to abide by the decision of the Catholic Church on these issues. 229. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 230. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception. 231. The Biloxi Diocese has further made the internal decision that its affiliated religious entities, including Catholic Social Services, de I' Epee, Resurrection Catholic, and Sacred Heart, should offer their employees health coverage through the Biloxi Plan, so as to ensure that those affiliates do not offer coverage for services that are contrary to Catholic teaching. For the same reason, the Jackson Diocese has decided that its affiliated religious entities, including Catholic Charities, Vicksburg Catholic, and St. Joseph, should offer their employees health-insurance coverage through the Jackson Plan. 232. The Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
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233. The Mandate's interference with Plaintiffs' internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
234. Because the Mandate interferes with the internal decision-making of Plaintiffs in a manner that affects their faith and mission, it violates the Establishment and Free Exercise Clauses of the First Amendment and RFRA.
235. The Mandate is therefore unconstitutional and invalid. 236. Plaintiffs have no adequate remedy at law. 237. Defendants are imposing an ongoing harm on Plaintiffs that warrants immediate relief.
COUNTvn
UNCONSTITUTIONAL DELEGATION OF LEGISLATIVE AUTHORITY
238. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs I through 170 hereinabove.
239. The United States Constitution vests all federal legislative power in the United States Congress. Congress may not delegate its policymaking authority to an executive agency in the absence of an intelligible principle that limits and guides the agency's exercise of that authority.
240. The Affordable Care Act expressly delegates unchecked authority to an agency within Defendant HHS, the Health Resources and Services Administration ("HRSA"), to establish "comprehensive guidelines" for the services that group health plans and health insurance issuers must provide as "preventive care" under the Act.
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241. For instance, the Act does not contain an intelligible principle or any other identifiable standard to which HHS or HRSA is directed to conform in deciding which services do and do not qualify as "preventive care."
242. Moreover, the Act contains no intelligible principle or other identifiable standard to which HHS or HRSA is directed to conform in deciding what "preventive care" should be -and should not be -- required.
243. For example, the Act purports to bestow unfettered discretion on HHS or HRSA to mandate coverage for whatever medical services and procedures it deems to qualify as "preventive care" worthy of coverage. Also, Defendants have used their unbounded discretion under the Act to claim for themselves the authority to decide which entities will (and will not) be subject to the Mandate and which will (and will not) qualify for the Exemption.
244. The Mandate resulted from a complete delegation of legislative andlor regulatory authority by Defendants to a non-governmental organization, the 10M. Defendants left it to 10M to develop "preventive care" guidelines, and then adopted 10M's guidelines in their entirety a mere two weeks after 10M issued its report. Moreover, Defendants did all of this without engaging in notice and comment. In sum, Defendants effectively rubber-stamped 10M's determinations. As a result, the Mandate is the result of an unconstitutional delegation of governmental authority to a non-governmental entity.
245. The Act's delegation oflegislative authority violates the United States Constitution.
246. Defendants' subdelegation oflegislative and/or regulatory authority to a nongovernmental entity violates the United States Constitution and the ACA.
247. Plaintiffs have no adequate remedy at law.
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248. The enactment and impending enforcement of the Mandate pursuant to these illegal delegations of authority impose an ongoing harm on Plaintiffs that warrants immediate relief.
COUNT VIII
ILLEGAL ACTION IN VIOLATION OF THE APA
249. Plaintiffs hereby repeat and re-allege the allegations set out in Paragraphs I through 170 hereinabove.
250. The APA condemns agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
251. The Mandate, its Exemption for "religious employers," and its so-called "accommodation" for "eligible" religious organizations are illegal and therefore in violation of the APA.
252. The Weldon Amendment states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."J3
253. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
J3 Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(l), 125 Stat. 786,1111 (2011).
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254. The Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. Thus, the Mandate is "not in accordance with the law." 5 U.S.C. § 706(2)(A). By issuing the Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
255. The Mandate violates RFRA. 256. The Mandate violates the First Amendment. 257. The Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 258. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 259. Plaintiffs have no adequate remedy at law. 260. The Mandate imposes an ongoing harm on the Plaintiffs that warrants immediate relief.
COUNT IX Failure to Conduct Notice-and-Commcnt Rulemaking in Violation of the APA 261. Plaintiffs repeat and re-allege the allegations set out in Paragraphs 1 through 170 hereinabove. 262. The Affordable Care Act expressly delegates to HRSA the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide. 263. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the "preventive care" guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given
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an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
264. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comments rulemaking in a manner prescribed by law.
265. Defendants, instead, wholly delegated their responsibilities for issuing "preventive care" guidelines to a non-governmental entity, the rOM.
266. rOM did not permit or provide for the broad public comment otherwise allowed under the APA concerning the "preventive care" guidelines that it would recommend. The dissent to the rOM report noted both that 10M conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
267. Within two weeks ofIOM issuing its women's "preventive care" guidelines, HHS issued a press release announcing that rOM's Guidelines regarding women's "preventive care" were required to be covered under the Affordable Care Act.
268. Defendants have never indicated reasons for failing to enact the "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
269. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
270. Plaintiffs have no adequate remedy at law. 271. Defendants are imposing an ongoing harm on Plaintiffs that warrants immediate relief.
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COUNT X
ERRONEOUS INTERPRETATION OF THE EXEMPTION WITH RESPECT TO MULTI-EMPLOYER ~
272. Plaintiffs repeat and re-allege the allegations set out in Paragraphs I through 170 hereinabove.
273. The Mandate explicitly exempts "group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)" from "any requirement to cover contraceptive services." 45 C.F.R. § 147.131 (a).
274. In the ANPRM, Defendants acknowledged that the religious employer exemption was "available to religious employers in a variety of arrangements." 77 Fed. Reg. at 16,502.
275. Specifically, Defendants indicated that a nonexempt entity could "provide[] health coverage for its employees through" a plan offered by a separate, "affiliated" organization that is a "distinct common-law employer." Id.
276. In such a situation, Defendants stated that if the "affiliated" organization was "exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees." Id.
277. This reading is consistent with the text of the regulation, which by its plain terms exempts "group health plan[s]" so long as they are "established or maintained by a religious employer. "
278. Nonetheless, when issuing the Final Rule, the Defendants reversed course, rejecting a "plan-based approach" and adopting an "employer-by-employer approach" whereby
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"each employer [must] independently meet the definition of religious employer ... in order to avail itself of the exemption." 78 Fed. Reg. at 39,886.
279. An employer-based approach contradicts the plain text of the regulation, which exempts "group health plan[s]," not individual employers.
280. The Biloxi Diocese and Jackson Diocese both meet the Mandate's definition of a religious employer, and therefore, the group health plans they have "established or maintained" are exempt from providing coverage for abortion-inducing products, sterilization, contraception, and related education and counseling.
281. The Defendants' erroneous interpretation of the religious employer exemption, however, precludes the Biloxi Diocese's amliated entities-including Plaintiffs Catholic Social Services, de l'Epee, and possibly including Resurrection Catholic and Sacred Heart-from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Biloxi Diocese. Similarly, the Defendants' erroneous interpretation of the religious employer exemption precludes the Jackson Diocese's amliated entities - including Plaintiffs Catholic Charities, Vicksburg Catholic, and St. Joseph - from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Jackson Diocese.
282. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
283. Plaintiffs have no adequate remedy at law. 284. Defendants' erroneous interpretation imposes an ongoing harm on Plaintiffs that warrants immediate relief. WHEREFORE, Plaintiffs respectfully pray that this Court:
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1. Enter a declaratory judgment that the Mandate violates Plaintiffs' rights under RFRA;
2. Enter a declaratory judgment that the Mandate violates Plaintiffs' rights under the First Amendment;
3. Enter a declaratory judgment that the Mandate was promulgated in violation of the APA;
4. Enter a declaratory judgment that the ACA unconstitutionally delegates legislative authority, and that the Mandate is therefore invalid because it is the result of that unconstitutional delegation of legislative authority;
5. Enter a declaratory judgment that Defendants unconstitutionally delegated legislative and/or regulatory authority to a nongovernmental entity, and that the Mandate is therefore invalid because it is the result of that unconstitutional delegation of authority;
6. Enter a declaratory judgment that Plaintiffs are not subject to the Mandate; 7. Enter a declaratory judgment that Defendants have erroneously interpreted the
scope of the religious employer exemption, and that nonexempt organizations may obtain the benefit of the religious employer exemption if they provide insurance through a group health plan established and maintained by a religious employer; 8. Enter an injunction prohibiting the Defendants from enforcing the Mandate against Plaintiffs; 9. Enter an order vacating the Mandate; 10. Award Plaintiffs their attorneys' and expert fees and costs under 42 U.s.c. § 1988; and 11. Award all other relief as the Court may deem just and proper.
59

Case 1:14-cv-00146-LG-JMR Document 1 Filed 03/27/14 Page 60 of 62
Respectfully submitted, this ili~day of Marc ,2014.
By: P. . Box Gulfport, ississippi 39502-0636 Telephone: (228) 586-0933 kjnlaw I @att.net Counsel for Plaintiffs the Catholic Diocese ofBiloxi, Inc., the Most Reverend Roger P. Morin, Bishop and President ofthe Catholic Diocese ofBiloxi, Inc. and as Trusteefor and on behalfofthe Resurrection Catholic School and the Sacred Heart Catholic School; Catholic Social and Community Services, Inc.; and De L 'Epee DeafCenter, Inc.
Ste&~Bar and No. 8345) BRUNINI, GRANTHAM, GROWER & HEWES, PLLC Post Office Drawer 119 Jackson, Mississippi 39205 Telephone: (601) 960-6890 Facsimile: (601) 960-6902 scarmody@brunini.com Counsel for Plaintiffs the Catholic Diocese ofJackson, the Most Reverend Joseph R. Kopacz, Bishop and Chief Executive Officer ofthe Catholic Diocese ofJackson; Vicksburg Catholic School, Inc.; St. Joseph Catholic School; Catholic Charities Inc.; St. Dominic-Jackson Memorial Hospital
60

Case 1:14-cv-00146-LG-JMR Document 1 Filed 03/27/14 Page 61 of 62
and
E. Kendrick Smith (pro hac vice application to be filed) Janine Cone Metcalf (pro hac vice application to be filed) James R. Williams (pro hac vice application to be filed) Brian C. Lea (pro hac vice application to be filed)
JONES DAY 1420 Peachtree Street, N.E., Suite 800 Atlanta, Georgia 30309 Telephone: (404) 581-3939 Facsimile (404) 581-8330 eksmith@jonesday.com jmetcalt@jonesday.com jrwilliams@jonesday.com blea@jonesday.com
CounseZ(or all Plaintiffs

Case 1:14-cv-00146-LG-JMR Document 1 Filed 03/27/14 Page 62 of 62

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this~ day of March, 2014, I caused a coPY of the
foregoing to be served by United States mail, return receipt requested, to each party named on the Summonses in this action.

ATI-2582753v8

Stephen J. Carmody ( Bar No. 8345) BRUNINI, GRANTHAM, GROWER &
HEWES,PLLC Post Office Drawer 119 Jackson, Mississippi 39205 Telephone: (601) 960-6890 Facsimile: (601) 960-6902 scarmody@brunini.com

62

 
 Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 1 of 13
CLOSED,NO_CMC,RHW
U.S. District Court Southern District of Mississippi (Southern) CIVIL DOCKET FOR CASE #: 1:12−cv−00158−HSO−RHW

The Catholic Diocese of Biloxi, Inc. et al v. Sebelius et al Assigned to: District Judge Halil S. Ozerden Referred to: Magistrate Judge Robert H. Walker Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 05/21/2012 Date Terminated: 12/20/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

The Catholic Diocese of Biloxi, Inc. The Most Reverend Roger P. Morin, Bishop and President of The Catholic Diocese of Biloxi, Inc., and his successors in office, as Trustee for and on behalf of the Resurrection Catholic School and the Sacred Heart Catholic School

represented by David M. Monde − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8206 Fax: 404/581−8330 Email: dmmonde@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

E. Kendrick Smith − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8343 Fax: 404/581−8330 Email: eksmith@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8656 Fax: 404/581−8330 Email: jmetcalf@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8724 Fax: 404/581−8330 Email: jtburnette@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise KEVIN J. NECAISE, ATTORNEY P. O. Box 636 Gulfport, MS 39502 228/586−0933 Fax: 228/255−2581 Email: kjnlaw1@att.net ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV JONES DAY − Atlanta

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 2 of 13

1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8771 Fax: 404/581−8330 Email: rmthornhill@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody BRUNINI, GRANTHAM, GROWER &HEWES P. O. Drawer 119 Jackson, MS 39205−0119 (601) 948−3101 Email: scarmody@brunini.com ATTORNEY TO BE NOTICED

Plaintiff
Catholic Social and Community Services, Inc.

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff De L'Epee Deaf Center, Inc.

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV (See above for address)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 3 of 13

PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The Catholic Diocese of Jackson The Most Reverend Joseph N. Latino, Bishop and Chief Executive Officer of The Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catholic Church

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vicksburg Catholic School, Inc.

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

E. Kendrick Smith − PHV (See above for address) PRO HAC VICE

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 4 of 13

ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff St. Joseph Catholic School

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED

Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Catholic Charities, Inc.

represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 5 of 13

Plaintiff
St. Dominic−Jackson Memorial Hospital

E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED
Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Monde − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
E. Kendrick Smith − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Janine Cone Metcalf − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jason T. Burnette − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin J. Necaise (See above for address) ATTORNEY TO BE NOTICED
Rebecca M. Thornhill − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen J. Carmody (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 6 of 13

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant Hilda Solis in her official capacity as Secretary of the U.S. Department of Labor
Defendant Timothy Geithner in his official capacity as Secretary of the U.S. Department of Treasury
Defendant U.S. Department of Health and Human Services
Defendant U.S. Department of Labor

represented by Jacek Pruski U. S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20001 202/616−2035 Fax: 202/616−8470 Email: jacek.pruski@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben U. S. ATTORNEY'S OFFICE − Gulfport 1575 20th Avenue Gulfport, MS 39501 228/563−1560 Fax: 228/563−1571 Email: stephen.graben@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 7 of 13

Defendant U.S. Department of Treasury
Amicus American Center for Law and Justice, et al.

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen R. Graben (See above for address) ATTORNEY TO BE NOTICED
represented by Edward L. White − PHV AMERICAN CENTER FOR LAW &JUSTICE 5068 Plymouth Road Ann Arbor, MI 48105 734/662−2984 Fax: 734−302/1758 Email: ewhite@aclj.org PRO HAC VICE ATTORNEY TO BE NOTICED
John Thomas Lamar , III LAMAR &HANNAFORD, PA 214 South Ward Street Senatobia, MS 38668 662/562−6537 Fax: 662/562−4858 Email: tlamar@lamarhannaford.com ATTORNEY TO BE NOTICED

Date Filed 05/21/2012
05/21/2012 05/21/2012
05/21/2012
05/21/2012

# Docket Text
1 COMPLAINT against Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury ( Filing fee $350.00, receipt number 14643003390) filed by St. Joseph Catholic School, De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Catholic Social and Community Services, Inc., St. Dominic−Jackson Memorial Hospital, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc.. (Attachments: # 1 Civil Cover Sheet)(PKS) (Entered: 05/21/2012)
2 Summons Issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (PKS) (Entered: 05/21/2012)
3 MOTION for E. Kendrick Smith to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing)(Carmody, Stephen) (Entered: 05/21/2012)
4 MOTION for David M. Monde to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing)(Carmody, Stephen) (Entered: 05/21/2012)
5 MOTION for Janine Cone Metcalf to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 8 of 13

05/21/2012
05/21/2012
05/21/2012
05/22/2012 05/22/2012
05/22/2012 07/11/2012 07/11/2012
07/11/2012 07/11/2012 07/12/2012

Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Court Admissions, # 2 Exhibit 2 − Georgia Certificate of Good Standing, # 3 Exhibit 3 − New York Certificate of Good Standing)(Carmody, Stephen) (Entered: 05/21/2012)
6 MOTION for Jason T. Burnette to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing)(Carmody, Stephen) (Entered: 05/21/2012)
7 MOTION for Rebecca M. Thornhill to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Certificate of Good Standing)(Carmody, Stephen) (Entered: 05/21/2012)
8 Corporate Disclosure Statement by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. identifying Corporate Parent St. Dominic Health Services, Inc. for St. Dominic−Jackson Memorial Hospital. (Carmody, Stephen) (Entered: 05/21/2012)
DOCKET ANNOTATION as to #3−#8: Attorney is advised to use the correct judge assignment of HSO−RHW on future filed pleadings. (PKS) (Entered: 05/22/2012)
9 ORDER granting 3 Motion to Appear Pro Hac Vice; granting 4 Motion to Appear Pro Hac Vice; granting 5 Motion to Appear Pro Hac Vice; granting 6 Motion to Appear Pro Hac Vice; granting 7 Motion to Appear Pro Hac Vice. E. Kendrick Smith, David M. Monde, Janine Cone Metcalf, Jason T. Burnette and Rebecca M. Thornhill shall be admitted pro hac vice to serve as co−counsel for the Plaintiffs. Signed by Magistrate Judge Robert H. Walker on May 22, 2012. (Joffe, Scherry) (Entered: 05/22/2012)
Pro Hac Vice fee paid by (E. Kendrick Smith, David M. Monde, Janine Cone Metcalf, Jason T. Burnette, and Rebecca M. Thornhill) $500.00, receipt number 14643003396. (PKS) (Entered: 05/22/2012)
10 NOTICE of Appearance by Jacek Pruski on behalf of All Defendants (Pruski, Jacek) (Entered: 07/11/2012)
11 Joint MOTION for Extension of Time to File Answer re 1 Complaint,, by Catholic Charities, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc., Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Carmody, Stephen) (Entered: 07/11/2012)
12 NOTICE of Endorsement by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 11 Joint MOTION for Extension of Time to File Answer re 1 Complaint,, (Pruski, Jacek) (Entered: 07/11/2012)
13 NOTICE of Appearance by Stephen R. Graben on behalf of All Defendants (Graben, Stephen) (Entered: 07/11/2012)
14 ORDER granting 11 agreed Motion for Extension of Time to Answer. Defendants are granted until 8/6/2012 to file a motion to dismiss the complaint; Plaintiffs are granted until 8/27/2012 to file a response to Defendants' motion to dismiss; Defendants are granted 28 days from the filing of Plaintiffs' response to the motion to file their reply. Signed by Magistrate Judge Robert H. Walker on July 12, 2012. (Joffe, Scherry) (Entered: 07/12/2012)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 9 of 13

08/06/2012 08/06/2012 08/22/2012 08/22/2012 08/22/2012 08/22/2012 08/22/2012 08/22/2012 08/22/2012 08/23/2012
08/27/2012
08/27/2012
08/31/2012 08/31/2012 09/19/2012

15 MOTION to Dismiss for Lack of Jurisdiction by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 08/06/2012)
16 MEMORANDUM in Support re 15 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 08/06/2012)
17 Amicus Curiae APPEARANCE entered by John Thomas Lamar, III on behalf of American Center for Law and Justice, et al. (Attachments: # 1 Exhibit)(Lamar, John) (Entered: 08/22/2012)
18 Corporate Disclosure Statement by American Center for Law and Justice, et al. (Lamar, John) (Entered: 08/22/2012)
19 MOTION for Leave to File Amici Curiae Brief by American Center for Law and Justice, et al. (Attachments: # 1 Exhibit)(Lamar, John) (Entered: 08/22/2012)
DOCKET ANNOTATION as to #17: Attorney is to refile document as a motion to appear pro hac vice and exhibits are to be labeled on the document with a meaningful description in the docket entry text. (PKS) (Entered: 08/22/2012)
20 MOTION for Edward L. White III to Appear Pro Hac Vice by American Center for Law and Justice, et al. (Attachments: # 1 Exhibit A − Certificate of Good Standing)(Lamar, John) (Entered: 08/22/2012)
21 ORDER granting 20 Motion to Appear Pro Hac Vice. Edward L. White, III shall be admitted pro hac vice to serve as co−counsel for the amicus American Center for Law and Justice, et al. Signed by Magistrate Judge Robert H. Walker on August 22, 2012. (Joffe, Scherry) (Entered: 08/22/2012)
Pro Hac Vice fee paid for Edward L. White, III receipt number 0538−2221503 $ 100 (Lamar, John) (Entered: 08/22/2012)
DOCKET ANNOTATION as to #19: L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number on the document itself and in the docket text. A meaningful description of the exhibit is also required in the docket text. Attorney is advised to follow this rule in future filings. (PKS) (Entered: 08/23/2012)
22 Response in Opposition re 15 MOTION to Dismiss for Lack of Jurisdiction by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) filed by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 08/27/2012)
23 MEMORANDUM IN SUPPORT re 22 Response in Opposition,, filed by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit 1 − Declaration of Deidra Bell, # 2 Exhibit 2 − Declaration of T. Dominick Fullam, # 3 Exhibit 3 − Declaration of Elvin Sunds)(Carmody, Stephen) (Entered: 08/27/2012)
24 NOTICE Of Endorsement by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 08/31/2012)
25 NOTICE of Endorsement by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 08/31/2012)
26 Unopposed MOTION for Leave to File Excess Pages by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 09/19/2012)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 10 of 13

09/20/2012
09/24/2012 10/11/2012
10/11/2012
10/12/2012 10/12/2012 10/15/2012
10/15/2012 10/15/2012 10/15/2012 10/15/2012 10/15/2012 10/15/2012 10/15/2012

TEXT ONLY ORDER granting as unopposed Defendants' 26 Motion to File Excess Pages in support of their pending 15 Motion to Dismiss. Defendants may file a Rebuttal memorandum, which together with their original 16 memorandum, will not exceed a total of forty pages, which is five pages in excess of the page limit imposed by L.U. Civ. R. 7(b)(5). NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT REGARDING THIS MOTION. Signed by District Judge Halil S. Ozerden on 9/20/2012. (ENW) (Entered: 09/20/2012)
27 REPLY to Response to Motion re 15 MOTION to Dismiss for Lack of Jurisdiction, 22 Response in Opposition,, filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 09/24/2012)
28 MOTION for Oral Argument re 15 MOTION to Dismiss for Lack of Jurisdiction by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 10/11/2012)
29 MEMORANDUM in Support re 28 MOTION for Oral Argument re 15 MOTION to Dismiss for Lack of Jurisdiction MOTION for Oral Argument re 15 MOTION to Dismiss for Lack of Jurisdiction filed by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 10/11/2012)
30 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/12/2012)
31 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/12/2012)
DOCKET ANNOTATION as to #24, #25, #30 and #31: This document is not signed in compliance with the court's Administrative Procedures for Electronic Case Filing (Sec. 3.D.) and Fed.R.Civ.P. Rule 11(a). Attorney is directed to include an electronic signature on the Notice of Endorsement document. (PKS) (Entered: 10/15/2012)
32 AFFIDAVIT of Service for Summons and Complaint served on Department of Health and Human Services on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
33 AFFIDAVIT of Service for Summons and Complaint served on Kathleen Sebelius on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
34 AFFIDAVIT of Service for Summons and Complaint served on U.S.Department of Treasury on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
35 AFFIDAVIT of Service for Summons and Complaint served on Timothy Geithner on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
36 AFFIDAVIT of Service for Summons and Complaint served on U.S. Department of Labor on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
37 AFFIDAVIT of Service for Summons and Complaint served on Hilda Solis on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
38 AFFIDAVIT of Service for Summons and Complaint served on United States Attorney General on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 11 of 13

10/15/2012 10/16/2012
10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 10/16/2012 11/13/2012
11/19/2012
11/20/2012 11/26/2012
11/26/2012

39 AFFIDAVIT of Service for Summons and Complaint served on United States Attorney on 5/21/2012, filed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/15/2012)
DOCKET ANNOTATION as to #32−#39: A return on summons should not be filed without the first page, as issued, preceding the return. Attorney is directed to refile these documents with the first page of the summons included. The correct event the attorney should choose is found under "Service of Process − Summons Returned Executed". (PKS) (Entered: 10/16/2012)
40 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. All Defendants. (Burnette − PHV, Jason) (Entered: 10/16/2012)
41 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
42 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
43 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. All Defendants. (Burnette − PHV, Jason) (Entered: 10/16/2012)
44 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
45 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
46 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
47 SUMMONS Returned Executed by The Catholic Diocese of Biloxi, Inc.. (Burnette − PHV, Jason) (Entered: 10/16/2012)
48 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/16/2012)
49 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/16/2012)
50 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/16/2012)
51 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 10/16/2012)
52 NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 15 MOTION to Dismiss for Lack of Jurisdiction (Pruski, Jacek) (Entered: 11/13/2012)
53 Response in Opposition re 52 NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Carmody, Stephen) Modified on 11/20/2012 to correct text (PKS). (Entered: 11/19/2012)
54 NOTICE of Endorsement by The Catholic Diocese of Biloxi, Inc. re 53 Response in Opposition, (Necaise, Kevin) (Entered: 11/20/2012)
55 ORDER granting American Center for Law and Justice and Seventy−Nine Members of the United States Congress's 19 Motion for Leave to File Amici Curiae Brief. Signed by District Judge Halil S. Ozerden on 11/26/2012. (ENW) (Entered: 11/26/2012)
56 MEMORANDUM in Opposition re 15 MOTION to Dismiss for Lack of Jurisdiction and in support of Plaintiffs, filed by Amici Curiae the American Center for Law &Justice and Seventy−Nine (79) Members of the United States Congress filed by American Center for Law and Justice, et al. (White − PHV, Edward) (Entered: 11/26/2012)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 12 of 13

11/27/2012 11/29/2012 11/30/2012 12/10/2012 12/11/2012 12/12/2012
12/13/2012 12/20/2012 12/20/2012 01/08/2013
01/08/2013
01/10/2013

57 NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 15 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Pruski, Jacek) (Entered: 11/27/2012)
58 NOTICE of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 15 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit Zubik v. Sebelius)(Pruski, Jacek) (Entered: 11/29/2012)
DOCKET ANNOTATION: Docket Annotation as to Doc. 58 : L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to include a meaningful description of the exhibit, exhibit letter or number on the document and in the docket text for future filings. (PKS) (Entered: 11/30/2012)
59 NOTICE of Supplemental Authority by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 12/10/2012)
60 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 12/11/2012)
61 Response in Opposition re 59 NOTICE of Supplemental Authority by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) Plaintiffs' Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 12/12/2012)
DOCKET ANNOTATION as to #61: : Scanned document contains blank page(9). PDF documents should be checked for errors before filing. It is not necessary to refile. (PKS) (Entered: 12/13/2012)
62 Memorandum Opinion and Order re 15 MOTION to Dismiss for Lack of Jurisdiction is granted and plaintiff's complaint is dismissed without prejudice; 28 MOTION for Oral Argument re 15 MOTION to Dismiss for Lack of Jurisdiction is denied. Signed by District Judge Halil S. Ozerden on 12/20/12 (PKS) (Entered: 12/20/2012)
63 FINAL JUDGMENT: action is hereby dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 12/20/12 (PKS) (Entered: 12/20/2012)
64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit A − Wheaton College v Sebelius Order)(Carmody, Stephen) Modified on 1/9/2013 to correct text (PKS). (Entered: 01/08/2013)
65 MEMORANDUM IN SUPPORT re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order filed by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) Modified on 1/9/2013 to correct text(PKS). (Entered: 01/08/2013)
66 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 01/10/2013)

Case: 1:12-cv-158 As of: 05/10/2013 11:32 AM CDT 13 of 13

01/10/2013 01/22/2013 01/22/2013 01/29/2013 01/29/2013
01/31/2013
02/01/2013 02/15/2013

67 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 01/10/2013)
68 RESPONSE in Opposition re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order, MOTION to Amend/Correct 63 Judgment, 62 Memorandum Opinion and Order, filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 01/22/2013)
69 MEMORANDUM in Opposition re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order, MOTION to Amend/Correct 63 Judgment, 62 Memorandum Opinion and Order, filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 01/22/2013)
70 NOTICE of Supplemental Authority Related to Plaintiffs' Motion to Alter or Amend the Judgment by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order, MOTION to Amend/Correct 63 Judgment, 62 Memorandum Opinion and Order, (Pruski, Jacek) (Entered: 01/29/2013)
71 Rebuttal re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order, MOTION to Amend/Correct 63 Judgment, 62 Memorandum Opinion and Order, filed by Catholic Charities, Inc., Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, The Catholic Diocese of Biloxi, Inc., The Catholic Diocese of Jackson, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 01/29/2013)
72 NOTICE of Supplemental Authority Related to Plaintiffs' Motion to Alter or Amend the Judgment by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 64 MOTION to Alter Judgment 63 Judgment, 62 Memorandum Opinion and Order, MOTION to Amend/Correct 63 Judgment, 62 Memorandum Opinion and Order, (Attachments: # 1 Exhibit 1 − Archdiocese of St. Louis v. Sebelius)(Pruski, Jacek) (Entered: 01/31/2013)
73 NOTICE OF ENDORSEMENT by The Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 02/01/2013)
74 ORDER denying Plaintiffs' 64 Motion to Alter or Amend the Judgment. Signed by District Judge Halil S. Ozerden on 2/15/2013. (ENW) (Entered: 02/15/2013)

 
 Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 1 of 13
CLOSED,JCG
U.S. District Court Southern District of Mississippi (Southern) CIVIL DOCKET FOR CASE #: 1:14−cv−00146−LG−JCG

Catholic Diocese of Biloxi, Inc. et al v. Sebelius et al Assigned to: District Judge Louis Guirola, Jr Referred to: Magistrate Judge John C. Gargiulo Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 03/27/2014 Date Terminated: 03/08/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Catholic Diocese of Biloxi, Inc.

represented by Brian C. Lea − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/372−2517 Fax: 404/581−8330 Email: leabrianc@gmail.com TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8343 Fax: 404/581−8330 Email: eksmith@jonesday.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8518 Fax: 404/581−8330 Email: jrwilliams@jonesday.com TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV JONES DAY − Atlanta 1420 Peachtree Street, N.E., Ste. 800 Atlanta, GA 30309−3053 404/581−8656 Fax: 404/581−8330 Email: jmetcalf@jonesday.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody BRUNINI, GRANTHAM, GROWER & HEWES, PLLC−Jackson P. O. Drawer 119 Pinnacle Bldg., Suite 100 190 East Capitol St. (39201) Jackson, MS 39205−0119

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 2 of 13

(601) 948−3101 Email: scarmody@brunini.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Necaise KEVIN J. NECAISE, ATTORNEY P. O. Box 636 Gulfport, MS 39502 228/586−0933 Fax: 228/255−2581 Email: kjnlaw1@att.net ATTORNEY TO BE NOTICED

Plaintiff
Roger P. Morin the Most Reverend, Bishop and President of the Catholic of Diocese of Biloxi, Inc. and his successors in office, as Trustee for and on behalf of...

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Resurrection Catholic School

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 3 of 13

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sacred Heart Catholic School

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Catholic Social and Community Services, Inc.

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 4 of 13

Plaintiff De L'Epee Deaf Center, Inc.
Plaintiff Catholic Diocese of Jackson

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE
E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE
Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE
E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE
Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen J. Carmody (See above for address) LEAD ATTORNEY

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 5 of 13

ATTORNEY TO BE NOTICED

Plaintiff
Joseph R. Kopacz the Most Reverend, Bishop and Chief Executive Officer of the Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catholic Church

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE
E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Vicksburg Catholic School, Inc.

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 6 of 13

St. Joseph Catholic School

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Catholic Charities, Inc.

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY PRO HAC VICE

E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE

Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
St. Dominic−Jackson Memorial Hospital

represented by Brian C. Lea − PHV (See above for address) TERMINATED: 12/22/2014 LEAD ATTORNEY

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 7 of 13
PRO HAC VICE
E. Kendrick Smith − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James R. Williams − PHV (See above for address) TERMINATED: 06/05/2017 LEAD ATTORNEY PRO HAC VICE
Janine Cone Metcalf − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen J. Carmody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant Thomas Perez in his offical capacity as Secretary of the U.S. Department of Labor
Defendant Jacob J. Lew in his official capacity as Secretary of

represented by Adam Grogg−Federal Gov U. S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20001 202/514−2395 Fax: 202/616−8470 Email: adam.a.grogg@usdoj.gov TERMINATED: 09/07/2017 LEAD ATTORNEY
Michelle Renee Bennett−Federal Gov U. S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue NW Washington, DC 20008 202/305−8902 Fax: 202/616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Grogg−Federal Gov (See above for address) TERMINATED: 09/07/2017 LEAD ATTORNEY
Michelle Renee Bennett−Federal Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Grogg−Federal Gov (See above for address)

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 8 of 13

U.S. Department of Treasury

TERMINATED: 09/07/2017 LEAD ATTORNEY

Michelle Renee Bennett−Federal Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. Department of Health and Human Services

represented by Adam Grogg−Federal Gov (See above for address) TERMINATED: 09/07/2017 LEAD ATTORNEY

Michelle Renee Bennett−Federal Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Labor

represented by Adam Grogg−Federal Gov (See above for address) TERMINATED: 09/07/2017 LEAD ATTORNEY

Michelle Renee Bennett−Federal Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Treasury

represented by Adam Grogg−Federal Gov (See above for address) TERMINATED: 09/07/2017 LEAD ATTORNEY

Michelle Renee Bennett−Federal Gov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/27/2014
03/27/2014 03/28/2014

# Docket Text
1 COMPLAINT against Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Filing fee $ 400; receipt number 14643005579), filed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School. (Attachments: # 1 Civil Cover Sheet)(JCH) (Entered: 03/27/2014)
2 Summons Issued as to Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (JCH) (Entered: 03/28/2014)
3 Corporate Disclosure Statement by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. identifying Corporate Parent St. Dominic Health Services, Inc. for St. Dominic−Jackson Memorial

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 9 of 13

03/28/2014 03/28/2014
03/28/2014 03/28/2014 04/01/2014 04/07/2014 04/07/2014 04/07/2014 04/07/2014

Hospital. (Carmody, Stephen) (Entered: 03/28/2014)
4 MOTION for E. Kendrick Smith to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit A − Certificate of Good Standing)(Carmody, Stephen) (Entered: 03/28/2014)
5 MOTION for Janine Cone Metcalf to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit A − Certificate of Good Standing − Georgia, # 2 Exhibit B − Certificate of Good Standing − New York, # 3 Exhibit C − Court Admissions, # 4 Exhibit D − Mississippi Pro Hac Cases)(Carmody, Stephen) (Entered: 03/28/2014)
6 MOTION for James R. Williams to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit A − Certificate of Good Standing)(Carmody, Stephen) (Entered: 03/28/2014)
7 MOTION for Brian C. Lea to Appear Pro Hac Vice by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit A − Certificate of Good Standing)(Carmody, Stephen) (Entered: 03/28/2014)
TEXT ORDER ONLY the Court finds that the motions of E Kendrick Smith Janine Cone Metcalf,Brian Lea and James Williams 4 5 6 7 to appear pro hac vice on behalf of Plaintiffs should be granted in association with local counsel,upon payment of the appropriate fee and registration for electronic filing in accordance with the Uniform Local Rules of this Court. No further written order shall be issued by this Court. Signed by Magistrate Judge John M. Roper on April 1,2014 (Nicaud, Jenny) (Entered: 04/01/2014)
8 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
9 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
10 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
11 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 10 of 13

04/07/2014
04/07/2014
04/07/2014 06/02/2014 06/03/2014
06/12/2014
07/25/2014 07/25/2014 07/28/2014 07/30/2014
07/30/2014 08/05/2014

of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
12 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
13 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School (Carmody, Stephen) (Entered: 04/07/2014)
Pro Hac Vice fee paid by (E. Kendrick Smith, Janine Cone Metcalf, James R. Williams and Brian C. Lea) $400.00, receipt number 14643005626 (PKS) (Entered: 04/07/2014)
14 Summons Issued as to Greg Davis, U.S. Attorney for the Southern District of MS and Eric H. Holder, Jr., Attorney General. (2 summons)(JCH) (Entered: 06/02/2014)
15 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School. All Defendants. (Carmody, Stephen) (Entered: 06/03/2014)
16 SUMMONS Returned Executed by De L'Epee Deaf Center, Inc., Catholic Charities, Inc., Sacred Heart Catholic School, Vicksburg Catholic School, Inc., Catholic Diocese of Biloxi, Inc., St. Dominic−Jackson Memorial Hospital, Catholic Diocese of Jackson, Roger P. Morin, Catholic Social and Community Services, Inc., Joseph R. Kopacz, St. Joseph Catholic School, Resurrection Catholic School. All Defendants. (Carmody, Stephen) (Entered: 06/12/2014)
17 NOTICE of Appearance by Adam Grogg on behalf of All Defendants (Grogg, Adam) (Entered: 07/25/2014)
18 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint,, by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Text of Proposed Order)(Grogg, Adam) (Entered: 07/25/2014)
DOCKET ANNOTATION as to #18: Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). Attorney is advised to follow this procedure in future filings. (PKS) (Entered: 07/28/2014)
TEXT ORDER ONLY The Court finds that Defendants' unopposed 18 Motion for Extension of Time to Answer is granted. Jacob J. Lew,Thomas Perez,Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, and U.S. Department of Treasury must answer or otherwise plead on or prior to 9/3/2014. No further written order shall be issued by this Court. Signed by Magistrate Judge John M. Roper on July 30,2014 (Nicaud, Jenny) (Entered: 07/30/2014)
Set/Reset Deadlines: All Defendants. Answer due by 9/3/2014 (Nicaud, Jenny) (Entered: 07/30/2014)
19 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge John C Gargiulo for all further proceedings. Magistrate Judge John M. Roper no longer assigned to case. Signed by Chief District Judge Louis Guirola, Jr on 8/5/14. (JCH) (Entered: 08/06/2014)

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 11 of 13

08/11/2014 08/11/2014
09/24/2014 09/26/2014
11/07/2014 11/24/2014 12/19/2014 12/22/2014 12/22/2014 03/27/2015 06/10/2015

20 Joint MOTION for Extension of Time to File Answer , Joint MOTION for Leave to File Excess Pages , Joint MOTION for Extension of Time to File Response/Reply by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Grogg, Adam) (Entered: 08/11/2014)
TEXT ONLY ORDER granting in part and denying in part the parties' 20 Joint Motion for Briefing Schedule. The Defendants' Answer and/or Motion to Dismiss/Motion for Summary Judgment is due October 3, 2014. Plaintiffs' Opposition to the Defendants' Motion, and any Cross−Motion for Summary Judgment, will be due November 3, 2014. Defendants' Reply in Support of their Motion to Dismiss/Motion for Summary Judgment, and Opposition to Plaintiffs' Motion for Summary Judgment, will be due December 3, 2014. Plaintiffs' Reply in Support of their Motion for Summary Judgment will be due December 19, 2014. The motion for leave to file excess pages is denied at this time, in light of the parties' representation that regulatory action may be taken that could affect this case. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT. Signed by Chief District Judge Louis Guirola, Jr. on 8/11/14 (ESN) (Entered: 08/11/2014)
21 Joint MOTION to Extend Deadline (all deadlines in Aug. 11, 2014 text order), MOTION for Extension of Time to File Answer re 1 Complaint,, by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Grogg, Adam) (Entered: 09/24/2014)
TEXT ONLY ORDER granting 21 Joint Motion to Extend Deadlines; granting 21 Motion for Extension of Time to Answer. Defendants' Motion to Dismiss/Motion for Summary Judgment is due November 17, 2014. Plaintiffs' Opposition to Defendants' Motion to Dismiss/Motion for Summary Judgment and Plaintiffs' Cross−Motion for Summary Judgment are due December 18, 2014. Defendants' Reply in Support of Motion to Dismiss/Motion for Summary Judgment and Opposition to Plaintiffs' Cross−Motion for Summary Judgment are due January 20, 2015. Plaintiffs' Reply in Support of Cross−Motion for Summary Judgment is due February 5, 2015. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT. Signed by Chief District Judge Louis Guirola, Jr. on 9/26/14 (ESN) (Entered: 09/26/2014)
22 Joint MOTION to Stay Proceedings by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Grogg, Adam) (Entered: 11/07/2014)
23 ORDER granting 22 Joint Motion to Stay Proceedings. Signed by Magistrate Judge John C. Gargiulo on 11/24/2014 (JB) (Entered: 11/24/2014)
24 MOTION to Withdraw as Attorney by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Attachments: # 1 Exhibit Proposed Order)(Lea − PHV, Brian) (Entered: 12/19/2014)
DOCKET ANNOTATION as to #24: Proposed orders are not to be electronically filed as a separate pleading or as an attachment to a pleading, but instead are to be provided to chambers by e−mail (Court's Administrative Procedures for Electronic Case Filing Sec.5.B.). (PKS) (Entered: 12/22/2014)
TEXT ONLY ORDER granting 24 Motion to Withdraw as Attorney. Attorney Brian C. Lea − PHV terminated. NO FURTHER WRITTEN ORDER WILL ISSUE FROM THE COURT. Signed by Chief District Judge Louis Guirola, Jr on 12/22/2014. (JSM) (Entered: 12/22/2014)
NOTICE of Hearing: TELEPHONIC Status Conference set for 6/15/2015 at 9:30 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiff will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 03/27/2015)
25 NOTICE of Appearance by Kevin J. Necaise on behalf of Catholic Diocese of Biloxi, Inc. (Necaise, Kevin) (Entered: 06/10/2015)

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 12 of 13

06/15/2015
06/15/2015 06/29/2015 12/08/2015 12/29/2015
12/29/2015 05/24/2016 05/25/2016 10/12/2016 03/02/2017
03/08/2017

Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: Status Conference held on 6/15/2015 regarding status of Stay. Participants: E. Kendrick Smith − PHV, James R. Williams − PHV, Stephen J. Carmody and Kevin J. Necaise (counsel for Plaintiffs); Adam Grogg (counsel for Defendants). The relevant consolidated appeals have been fully briefed and oral arguments were heard before the 5th Circuit on April 7, 2015. Parties are currently awaiting appellate decision. (AB) (Entered: 06/15/2015)
TEXT ONLY ORDER: Within 5 days of the entry of any decision by the 5th Circuit regarding the subject consolidated appeals the parties shall notify the Magistrate Judge, and shall submit a proposed order lifting the stay. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. Signed by Magistrate Judge John C. Gargiulo on 6/15/2015 (AB) (Entered: 06/15/2015)
26 NOTICE (Joint) by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 East Texas Baptist Univ., et al. Decision (5th Cir.))(Grogg, Adam) (Entered: 06/29/2015)
NOTICE of Hearing: TELEPHONIC Status Conference set for 12/29/2015 at 10:00 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiff will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 12/08/2015)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: Telephonic Status Conference held on 12/29/2015. Participants: E. Kendrick Smith − PHV, James R. Williams − PHV, Janine Cone Metchalf − PHV, Andrew A. Pinson, Stephen J. Carmody and Kevin J. Necaise (counsel for Plaintiffs ); Adam Grogg (counsel for Defendants). The U.S. Supreme Court has granted certiorari to address issues that have been raised in the instant case. A briefing schedule has been set, and a decision is expected on June 30, 2016. The parties jointly request a continuation of the stay until after the U.S. Supreme Court issues its final decision. (AB) (Entered: 12/29/2015)
TEXT ONLY ORDER: Within 20 days of the entry of any decision by the U.S. Supreme Court regarding the consolidated issues the parties shall notify the Magistrate Judge, and shall submit a proposed order lifting the stay. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by Magistrate Judge John C. Gargiulo on 12/29/2015 (AB) (Entered: 12/29/2015)
27 NOTICE (Joint) by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re Order, (Grogg − Federal Gov, Adam) (Entered: 05/24/2016)
TEXT ONLY ORDER: Within 20 days of the entry of any decision by the 5th Circuit regarding the subject consolidated appeals the parties shall notify the Magistrate Judge, and shall submit a proposed order lifting the stay. NO FURTHER WRITTEN ORDER SHALL BE ISSUED. Signed by Magistrate Judge John C. Gargiulo on 5/25/2016 (AB) (Entered: 05/25/2016)
NOTICE of Hearing: TELEPHONIC Status Conference regarding status set for 3/2/2017 at 9:30 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiff will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 10/12/2016)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: TELEPHONIC Status Conference held on 3/2/2017. PARTICIPANTS: E. Kendrick Smith − PHV, James R. Williams − PHV, Janine Cone Metchalf − PHV, Andrew A. Pinson, and Kevin J. Necaise (counsel for Plaintiffs); Adam Grogg (counsel for Defendants). Pursuant to the per curiam opinion in Zubik v. Burwell, the U.S. Supreme Court directed the instant parties to enter discussions regarding resolution of the litigation and the parties are in compliance. The parties jointly request a continuation of the stay pending proceedings in the Fifth Circuit and the issuance of any mandate by that Court. (AB) (Entered: 03/02/2017)
28 ORDER ADMINISTRATIVELY CLOSING THE CASE: this case be administratively closed pending resolution of East Baptist University v. Burwell, No. 14−20112, University of Dallas v. Burwell, No. 14−10241, Catholic Diocese of

Case: 1:14-cv-146 As of: 09/20/2018 11:26 AM CDT 13 of 13

06/02/2017
06/05/2017
08/30/2017 09/06/2017 09/07/2017
10/23/2017

Beaumont v. Burwell, No. 14−40212, and Catholic Charities, Diocese of Fort Worth vs. Burwell, No. 14−10661 in the Fifth Circuit. The parties are directed to move to lift the stay and reopen case when these proceedings are concluded. Nothing contained in this Order shall be considered a dismissal or disposition of this matter. Signed by Magistrate Judge John C. Gargiulo on 3/8/17 (PKS) (Entered: 03/08/2017)
29 Unopposed MOTION to Withdraw as Attorney of James Williams by Catholic Charities, Inc., Catholic Diocese of Biloxi, Inc., Catholic Diocese of Jackson, Catholic Social and Community Services, Inc., De L'Epee Deaf Center, Inc., Joseph R. Kopacz, Roger P. Morin, Resurrection Catholic School, Sacred Heart Catholic School, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 06/02/2017)
TEXT ONLY ORDER granting 29 Motion to Withdraw as Counsel of Record filed by James R. Williams. James R. Williams is granted leave to withdraw and is terminated from the docket as counsel of record for Plaintiffs. Plaintiffs will continue to be represented by E. Kendrick Smith, Janine Cone Metcalf, Stephen J. Carmody, and Kevin J. Necaise. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge John C. Gargiulo on 6/5/2017 (MG) (Entered: 06/05/2017)
30 NOTICE of Appearance by Michelle Renee Bennett−Federal Gov on behalf of All Defendants (Bennett−Federal Gov, Michelle) (Entered: 08/30/2017)
31 MOTION to Withdraw as Attorney by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Grogg−Federal Gov, Adam) (Entered: 09/06/2017)
TEXT ONLY ORDER granting 31 Motion to Withdraw as Counsel of Record filed by Adam Grogg. Attorney Adam Grogg is granted leave to withdraw and is terminated from the docket as counsel of record for Defendants. Defendants will continue to be represented by attorneys from the United States Department of Justice. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge John C. Gargiulo on 9/7/2017 (MG) (Entered: 09/07/2017)
32 STIPULATION of Dismissal by Catholic Charities, Inc., Catholic Diocese of Jackson, Joseph R. Kopacz, St. Dominic−Jackson Memorial Hospital, St. Joseph Catholic School, Vicksburg Catholic School, Inc. (Carmody, Stephen) (Entered: 10/23/2017)