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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

SUMMONS ISSUED

THE ROMAN CATHOLIC ARCHDIOCESE OF \

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NEW YORK; CATHOLIC HEALTH CARE " SYSTEM; THE ROMAN CATHOLIC DIOCESE

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OF ROCKVILLE CENTRE, NEW YORK;

CATHOLIC CHARITIES OF THE DIOCESE OF

ROCKVILLE CENTRE; and CATHOLIC HEALTH SERVICES OF LONG ISLAND,

COMPLAINT

Plaintiffs,

JURY TRIAL DEMANDED

-against-

KATHLEEN SEBELIUS, in her official capacity !\s Secretary of the U.S. Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary ofthe U.S. Departmerpn Labor; TIMOTHY GEITHNER, in his offic~V 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.

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1. This lawsuit is about one of America's most cherished freedoms: the freedom to

right to abortion-inducing drugs, sterilization, and contraception. Those services are freely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs-all Catholic entities-to violate their sincerely held 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

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action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American

rights.

2. Plaintiffs are Catholic religious entities that provide a wide range of spiritual,

educational, and social services to residents in New York, Catholic and non-Catholic alike,

regardless'of their faith. The Archdiocese of New York and the Diocese of Rockville Centre,. for

example, serve New York families through their many charitable programs and through the

education of students in their respective school systems. Catholic Charities of the Diocese of

Rockville Centre offers a host of social services to address the basic needs of the poor, troubJ,~d,

weak, and oppressed. Catholic Health Services of Long Island ("CHSLI") is an integrated

healthcare delivery system that serves hundreds of thousands of Long Islanders each year,

providing care that extends from the beginning oflife to helping people live their final years in

comfort, grace, and dignity. And Catholic Health Care System and its affiliates, collectively

ArchCare, The Continuing Care Community of the Archdiocese of New York ("ArchCare"),

provides compassionate care to frail and vulnerable people unable to fully care for themselve~;

and seeks to improve the quality of the lives of those individuals as well as their families.

3. Plaintiffs' work is guided by and consistent with Roman Catholic belief, including

the requirement that they serve those in need, regardless of their religion. This is perhaps bes:

captured by words attributed to St. Francis of Assisi: "Preach the Gospel at all times. Use

words if necessary." As Pope Benedict has more recently put it, "love for widows and orphar.s,

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prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the

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ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the serviee

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of charity any more than she can neglect the Sacraments and the Word." Pope Benedict XVI,

Deus Caritas Est ~ 22 (2006). Or as Cardinal Timothy Dolan, the Archbishop of New York, has

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taught: "We don't serve people because they're Catholic, we serve them because we are, and it's a moral imperative for us to do so." In accordance with these beliefs, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need, Catholic and non-Catholic alike.
4. Artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants, however, have promulgated various rules (collectively, the "U.S. Government Mandate") that force Plaintiffs to violate their sincerely held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to provide health plans to their employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption from this Mandate for certain "religious employers" who can convince the Government that they satisty 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 tem:ts
of the organization"; and • "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." Thus, in order to safeguard their religious freedoms, religious employers must plead with the Government for a determination that they are sufficiently "religious."
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6. Plaintiffs Archdiocese of New York and Diocese of Rockville Centre do not hlOW, whether the Government will conclude that they satisfy the definition of a "religious employer" under the impermissibly vague terms of the exemption. And, in order to find out, they must submit to an intrusive governmental investigation into whether, in the Government's view, their "purpose" is the "inculcation of religious values"; whether they "primarily" employ "persons who share [their] religious tenets," even though they hire persons of many faiths; and whether they "primarily" serve Catholics, even though their schools, parishes, and social services are open to all.
7. The definition of "religious employer," moreover, excludes Catholic Charities of Rockville Centre, CHSLI, and ArchCare even though they are "religious" organizations under any reasonable definition of the term. To even attempt to qualify as a "religious employer" under the terms ofthe u.s. Government Mandate's exemption, these Plaintiffs may be requir,ed to stop serving non-Catholics and fire non-Catholic employees-actions that would betray their religious commitment to serving all in need without regard to religion and threaten to undermine the Church's vaunted tradition of service to others. Such a definition means that Catholic organizations would have to stop asking, "are you hungry?" and ask instead, "are you Catholic?" before extending services.
8. The u.S. Government Mandate, including the exemption for certain "religious employers," is irreconcilable with the First Amendment, the RFRA, and other laws. The Government has not shown any compelling need to force 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 governmental examination of their religious missions. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to
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advancing any interest in increasing access to these services, as these services are already widely

available and nothing prevents the Government from making them even more widely availabl e

by 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 ac~ess

to these services in violation of their sincerely held religious beliefs.

9. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate

cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order

vacating the Mandate.

I. PRELIMINARY MATTERS 10. Plaintiff The Roman Catholic Archdiocese of New York is a New York not-for-

profit corporation. Its principal place of business is lOll First Avenue, New York, New York

10022. It is organized exclusively for charitable, religious, and educational purposes within the

meaning of Section 50 I(c)(3) of the Internal Revenue Code.

II. Plaintiff ArchCare is a New York not-for-profit corporation. Its principal pla~e of

business is 205 Lexington Avenue, New York, New York 10016. It is organized exclusivel:! for

charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) ofth.e

Internal Revenue Code.

12. Plaintiff The Roman Catholic Diocese of Rockville Centre, New York is a N.:w

York not-for-profit corporation created by a special act of the state legislature in 1958. Its

principal place of business is 50 North Park Avenue, Rockville Centre, New York 11570. II: is

organized exclusively for charitable, religious, and educational purposes within the meanin~; of

Section 50 I(c)(3) of the Internal Revenue Code.

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13. Plaintiff Catholic Charities of the Diocese of Rockville Centre is a New York not-

for-profit corporation. Its principal place of business is 90 Cherry Lane, Hicksville, New York

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11801. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
14. PlaintiffCHSLI is a New York not-for-profit corporation. Its principal place of business is 992 North Village Avenue, Rockville Centre, New York 11570. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
15. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Heal1h and Human Services ("HHS"). She is sued in her official capacity.
16. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
17. Defendant Timothy Geithner is the Secretary ofthe U.S. Department of Treasury. He is sued in his official capacity.
18. 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 ("APA").
19. Defendant U.S. Department of Labor is an executive agency ofthe United St"tes within the meaning ofRFRA and the APA.
20. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning ofRFRA and the APA.
21. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702; 21: U.S.C. §§ 2201, 2202; and 42 U.S.C. § 2000bb-1.
22. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S.
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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 below.
23. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
24. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
25. Venue is proper in this Court under 28 U.S.C. § 139l(e)(I). A. The Archdiocese of New York
26. Plaintiff Archdiocese of New York encompasses 370 parishes serving ten counties in New York City and the lower Hudson Valley, including in New York, Bronx, and Richmond Counties in the boroughs of Manhattan, the Bronx, and Staten Island, respectivel:r, as well as Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester Counties in the lower Hudson Valley of New York State. The Archdiocese was created as the Diocese of New York in 1808, and was elevated to an Archdiocese on July 19, 1850.
27. His Eminence, Timothy Cardinal Dolan, was named Archbishop of New York by Pope Benedict XVI on February 23, 2009. On November 16,2010, Cardinal Dolan was ele<:ted president of the United States Conference of Catholic Bishops. On January 6, 2012, Pope Benedict XVI announced that Cardinal Dolan was to be appointed to the College of Cardinal s and Cardinal Dolan was elevated in the Consistory on February 18,2012:
28. Though the Archdiocese includes a community of over 2.5 million Catholics, its services reach out to individuals of all faiths. The Archdiocese administers a variety of programs and organizations that help support parishes and schools; students and their familks;
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retired, current and future clergy and religious; and countless men, women, and children in need

of social services regardless of faith. 29. For instance, through Catholic Charities of the Archdiocese of New York, owr
356,000 individuals are served on an annual basis through 90 Catholic Charities agencies and

300 neighborhood and community sites. Catholic Charities helps solve the problems of New

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Yorkers in need-non-Catholics and Catholics alike-and seeks to uphold the dignity of ea,;h

person as made in the image of God by serving the basic needs of the poor, troubled, frail and

oppressed of all religions. Catholic Charities collaborates with parishes as well as non-CatilOlic •

and Catholic partners to build a compassionate and just society. Through a network of administered, sponsored and affiliated agencies, Catholic Charities delivers, coordinates, and

advocates for quality human services and programs touching almost every human need. The

services of Catholic Charities of the Archdiocese of New York include the following:

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Protecting and Nurturing Children and Youth-2S,000 youth in sports and

recreational programs; 310 children adopted by loving families; 6,545 children

placed in safe foster care; 4,100 children and teens in after school programs:.

1,850 children in summer camps; 8,100 children in day-carelHead Start;

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Feeding the Hungry and Sheltering the Homeless-6,500,000 meals served in

parish and community food programs; 4,800 families saved from homelessf'.ess;

2,545 people placed in temporary or transitional housing; 8,430 people in

emergency overnight shelters; 6,524 families in affordable housing;

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Strengthening Families and Resolving Crises-4,500 families supported to stay

together; 35,000 people received needed social services; 7,900 people provided .

training, orientation, and job placement; 1,600 women helped during unplarned

pregnancies; 15,100 individuals received counseling; 12,568 people helped with

emergency financial assistance;

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Supporting the Physically and Emotionally Challenged-2,700 pre-schoalers .

in early intervention and special education; 800 individuals in safe and secure

residences; 930 people with mentil1 illness supported in their own homes; 3~:9

individuals received individual therapy; 6,141 teens and adults treated for dlUg

and alcohol abuse; 1,250 visually and hearing impaired people trained for

independence; and

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Welcoming and Integrating Immigrants and Refugees-3,378 families

counseled and protected from exploitation; 40,651 calls answered in 18

languages; 445 breadwinners helped to obtain authorization to work; 417

immigrants reunited with the families; 281 refugee and asylee families resett\(,d;

and 291 immigrants taught English.

30. In addition, the Archdiocese of New York is committed to providing young

people of all religious backgrounds with a high~quality, faith-based education in some of the

poorest neighborhoods in New York.

31. There are 246 Catholic schools located in the Archdiocese, including 50

secondary schools, 8 special education schools, and 188 elementary schools.

32. Nearly, 70% ofthe students enrolled in the 92 designated elementary and

secondary inner-city schools in Manhattan, the Bronx and Staten Island come from homes living

at or below the federal poverty line. Enrollment is 93% minority and 36% non-Catholic. Ov(,r

half ofthese students come from single-parent households. Archdiocesan Catholic schools

enable their students and their families to overcome enormous odds and break the cycle of

poverty through education. Fully 95% of graduates from the Archdiocese's Inner-City
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Scholarship Fund ("ICSF") pursue college or university studies, including at distinguished

institutions such as Harvard, Yale, MIT, Fordham, and Georgetown. 33. Indeed, Transfiguration Elementary School, serving the Chinese community, has

82% non-Catholic students while St. Brigid School in the East Village of Manhattan serves 90%

non-Catholic students. Similarly, St. Mark the Evangelist School in Harlem has a student body that is 84% non-Catholic, and the non-Catholic populations of Our Lady of Grace School, St.

Mary School, and Saints Philip and James School, all located in the Bronx, are all more than

80%. These schools are just a few of many examples of Archdiocesan schools serving large

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populations of non-Catholic students.

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34. In the graduating class of2011, 95% of the Archdiocese's Catholic high school graduates attended two- or four-year colleges and/or universities. Additionally, the average scores of Archdiocesan high schools on the five basic Regents exams (English, Integrated Algebra, Living Environments, Global History and Geography, U.S. History) exceeded that of the average scores on these exams in the New York State public high schools.
35. The Archdiocese offers a variety of tuition assistance programs for those in economic need. Archdiocesan-sponsored scholarship programs serve 8,285 K-12 students, awarding an average overall scholarship of $2, 142.
36. Further, the Cardinal's Scholarship Programs serve 8,285 students: the Cardinal's Scholarship Program (funded by the Children'sScholarship Fund, ICSF, Partnership for InnerCity Education, and the Archdiocese) serves 5,760 students in grades K-8, with an average scholarship amount of$I,945; the Cardinal's Scholarship Program (non-ICSF) serves 217 K-8 students on Staten Island with an average scholarship of$I,851; and the Cardinal's Scholarship Program (funded by the Partnership) serves 642 students in grades 9-12 with, on average, a $3,502 scholarship. The "Be a Student's Friend" Scholarship Program serves 1,666 students in grades K-12 and provides an average scholarship of$2,339.
37. The Archdiocese and it parishes and institutions employ nearly 10,000 people, including 1,452 priests, 379 religious men and women, and 7,923 lay people. The Archdiocei;e does not know how many of its employees are Catholic.
38. The Archdiocese operates a self-insured health plan. That is, the Archdiocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Archdiocese itself functions as the insurance company underwriting its employees' medical costs. The Archdiocese's medical plan is administered by United Health
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Care and its pharmaceutical coverage is administered by CareMark and Catholic Mutual Group. These third parties handle the administrative aspects of the Archdiocese's self-insured employee health plans, but they bear none ofthe risks for benefits nor are they obligated to pay health care providers.
39. The plan year for the Archdiocese begins on January 1. 40. The Archdiocese's self-insured health plan does not meet the Affordable Care Act's definition of a "grandfathered" plan because the plan has recently enacted significant increases to the 10% employee contribution requirements and increased the co-payment requirements for higher earning employees. 41. The Archdiocese does not know how many of the 5,498 individuals that participate in its health plan are Catholic and does not know how many of those whose needs are met through the Archdiocese's programs are Catholic. 42. It is therefore unclear whether the Government will conclude that the Archdioc ese
qualifies as a "religious employer" under the narrow exemption from compliance with the u.s.
Government Mandate. 43. Moreover, determining whether an organization-such as the Archdiocese--
qualifies for the exemption will require the Government to engage in an intrusive inquiry, based on an understanding of religion that is inconsistent with the Catholic faith, into whether, in the view of the Government, (I) the Archdiocese's "purpose" is the "inculcation of religious
values"; (2) whether the Archdiocese "primarily" employs "persons who share [its1religious
tenets," even though it generally hires employees without regard to their religion and does not know how many Catholics it employs; and (3) whether it "primarily" serves such people, even though its schools and social services are open to all, without regard to their religion.
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44. Regardless of the outcome, the Archdiocese strongly objects to such an intrusi ve and misguided governmental investigation into its religious mission.
B. ArchCare 45. ArchCare, knoWn as the "Continuing Care Cornmunity of the Archdiocese of
New York," is a non-profit healthcare organization with over 4,000 employees. ArchCare is guided a dedication to and appreciation for the dignity of all human life and by the Archdiocese's commitment to serving the sick and the frail in New York City and the Greatel· New York area.
46. ArchCare is a central part of the health care ministry of the Archdiocese of New York. As Cardinal Dolan has stated: "Through the vital ministry of ArchCare, the Archdioc(:se of New York provides health care and continuing support in the name of Jesus to those in our community who have lost the opportunity to live independently or alone due to advancing ag(:, injury or disability."
47. As such, ArchCare seeks to assure the presence of Catholic values in caring for a diverse medical population, including children with developmental disabilities, the elderly, individuals requiring renal dialysis, and those living with Huntington'S disease, Alzheimer's disease, and HIV/AIDS.
48. The mission of ArchCare is to foster and provide faith-based holistic care to frail and vulnerable people unable to fully care for themselves. With an emphasis on not only physical well-being, but also the mind and spirit of those it serves, ArchCare treats individual:; with respect, compassion and dignity, and seeks to improve the quality of the lives of individuals within its care as well as their families.
49. Among the guiding values of ArchCare are justice, inclusiveness, respect, integrity, benevolence, humility, and spirituality. In living these core values, ArchCare comrr'its
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itself to the recognition that those with the greatest needs often have the least resources, and thus

provides the same quality of care to the disenfranchised and less-fortunate of New York as it does to those who have been more fortunate.

SO. With over 2,SOO beds and more than 700 nurses, ArchCare is one of the largest

Catholic continuing care systems in the nation, with a broad array of services including home

care, hospice, a long-term acute care hospital, and adult day health care centers.

S1. ArchCare offers individualized comprehensive care services through its network

of in-home care, seven nursing homes, eight residential locations, and several out-patient

facilities located throughout New York City in the boroughs of Manhattan, Staten Island, and the
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Bronx, as well as in Dutchess and Orange Counties.

S2. The facilities in ArchCare's network, which together administer care to more tllan 6,000 patients, include the following:

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Carmel Richmond Healthcare and Rehabilitation Center ("Carmel

Richmond"}--a home-like, 300-bed residential facility in Staten Island, New

York, served by the Carmelite Sisters for the Aged and Infirm, is a religious

community nationally renowned for setting the standard for excellence in care ·Jf

the elderly. Carmel Richmond offers residents continuous, 24-hour skilled

nursing and medical care, administered by a team of 70 affiliated physicians ar d

more than 500 nurses, professionals, and support staff. Services for the nearly

1,000 patients cared for at Carmel Richmond include dentistry, ophthalmology,

audiology, social services, psychology, podiatry, nutrition therapy, recreation

therapy, pain management, and hospice care. The Carmelite Sisters work to

maintain the dignity, comfort, and connection to the community of the residents

through recreational, socialization, and activity programs, including daily Masf,

and religious services, a cafe, a beauty salon and barber shop, and gathering

rooms, as well as a garden and outdoor space. Through its state-of-the-art

rehabilitation facilities and highly skilled rehabilitation therapists, Carmel

Richmond has a proven record of achievement in restoring residents to their

optimal level of independence. More than 90% of the people admitted for shOlt-

term rehabilitation return to their communities within their targeted time frame.

The short-term rehabilitative services include pain management and coordinated

treatment plans personalized for each resident in physical, occupational, and

speech therapy. Carmel Richmond also offers an Adult Day Health Care

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~ro~ram, available for individuals who wish to remain at home, but who need hmlted health care services.

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Ferncliff Nursing Home ("Ferncliff'}--a 328-bed residential home located ill

Rhinebeck, New York. Ferncliff provides its residents with continuous 24-hcur

skilled holistic care that addresses not only physical needs, but social, ,

psychological, emotional, and spiritual needs, as well. Ferncliff provides the :;80

patients it serves with access to its private 36-acre grounds, and through its 18

consulting physicians offers treatment in psychiatry, psychology, podiatry,

ophthalmology and optometry, neurology, gastroenterology, orthopedics, and

dentistry. Short-term rehabilitation services for residents who have suffered a

stroke or who have undergone major surgery or other medical procedures include

speech, physical, and occupational therapy, as well as pain management. These

programs are designed to assist the elderly and vulnerable to return to their

normal routines and independent lives as quickly as possible. Ferncliff also offers

religious services.

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Kateri Residence ("Kateri"}--a 520-bed skilled nursing and rehabilitation center

located in Manhattan. Kateri serves the community ofthe Upper West Side and

provides short- and long-term rehabilitative care on an in-patient and out-patient

basis to over 960 patients. Kateri offers over 30 consulting physicians in various

medical fields, as well as hospice, pain management, and speech, physical,

recreation, and occupational therapies.

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Mary Manning Walsh Home ("Mary Manning"}--a completely refurbished

362-bed facility located in Manhattan. Mary Manning, operated by the Carmelite

Sisters, serves the East Side community and offers long-term care and short-tetm

rehabilitation services to nearly 1,390 patients. Mary Manning provides similar

continuing care services as those offered by Kateri through access to numerous

physicians and also maintains a vibrant community for its residents through th(:

presence of outdoor facilities, a barber shop and beauty parlor, and common

gathering areas.

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San Vicente de Paul Catholic Healthcare Center ("San Vicente"}--a 200-bed

residential skilled nursing and rehabilitation healthcare facility located in the

Bronx that is designed to meet the special needs of elderly members of New

York's Latino communities. Since opening in 1992, it has become a cornerstone

in the rebirth of its Bronx neighborhood. San Vicente provides the same high

quality, 24-hour short-term and long-term care services as are offered at its sister

facilities and offers transportation and meals to its out-patients in need. The

bilingual staff, ethnic food, and special social events it provides all reflect San

Vicente's commitment to providing much-needed services to its surrounding

community and the more than 240 patients it treats. A special unit is dedicated to

serving those needing intensive rehabilitative services for a short period before

returning to their independent lives at home. San Vicente also offers access to

several consulting physicians and an Adult Day Health Care Program.

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St. Teresa's Nursing and Rehabilitation Center ("St. Teresa's")-a 98-bed

skilled nursing facility offering highly-personalized and comprehensive long-term

eldercare and short-term rehabilitation to approximately 275 patients in

Middletown, New York. St. Teresa's offers its residents and out-patients the

same continuum of care provided by its sister facilities with access to several

consulting physicians, and provides a vital meeting space for the elderly of its

community. Indeed, 25% of all patients who have undergone rehabilitation at St.

Teresa's return to the facility to participate in daily activities and receive health

services.

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Terence Cardinal Cooke Health Care Center ("Cooke Center")--a continuing

care facility located near Central Park in Manhattan that provides compassionate

medical care to over 1,570 patients from emerging and under-served populations.

The Cooke Center provides long-term care for the frail elderly and those with

complex medical conditions, as well as short-term subacute rehabilitative services

for those recovering from surgery or other ailments. As a comprehensive skilled

nursing facility, the Cooke Center provides access to nearly 50 physicians and

offers health care services to a diverse medical population, such as children with

developmental disabilities, the elderly, individuals requiring renal dialysis,

including those requiring hemodialysis and suffering through end-stage renal

disease, as well as those living with Huntington's disease, Alzheimer's diseas,~,

and HIV/AIDS. The Cooke Center works in collaboration with Mount Sinai

Hospital's Department of Rehabilitation Medicine, one of America's top spec ialty

hospitals.

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Program of All-Inclusive Care for the Elderly-an adult day care and

continuing care. facility recently opened to serve the needs of the elderly in

Harlem. The facility-one of only 77 of its kind in the country--delivers the

same level of care that individuals would receive in a nursing home while

allowing them to keep their independence and continue living safely in the

community for as long as possible.

53. ArchCare believes profoundly in the traditions of the Roman Catholic Church.

ArchCare relies on the Ethical and Religious DirectivesJor Catholic Health Care Services

promulgated by the United States Conference of Catholic Bishops ("Ethical and Religious

Directives") as a guiding document detailing the application of the Catholic Church's basic

theological principles to the provision of health care. These Ethical and Religious Directives,

now in their Fifth Edition published in 2009, provide guidance for specific issues relating to the

general overriding requirement to operate in accordance with the ethical and moral teachings of

the Roman Catholic Church.

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54. At the same time, ArchCare continues to honor its ministry by serving New Yorkers of all faiths and striving to fulfill each individual's spiritual needs by respecting their distinct beliefs. ArchCare does not know how many of those it serves are Catholic,
55. ArchCare itself does not qualitY as a "religious employer" under the exemption to the U.S. Government Mandate.
56. ArchCare operates a self-insured health plan. That is, ArchCare does not contract with a separate insurance company that provides health care coverage to its employees. Inste Id, ArchCare itself functions as the insurer underwriting its employees' medical costs.
57. More than 1,130 ArchCare employees participate in ArchCare's self-insured health plan. ArchCare does not know how many of those employees are Catholic.
58. ArchCare's medical plan is administered by Emblem Health and its pharmaceutical coverage is administered by CareMark and Catholic Mutual Group. These third parties handle the administrative aspects of ArchCare's self-insured employee health plans, but they bear none ofthe risks for benefits nor are they obligated to pay health care providers.
59. ArchCare's self-insured health plan does not qualitY as a "grandfathered" plan because ArchCare made certain changes to the plan that caused it to lose "grandfathered" status.
60. The plan year for ArchCare begins on January I. C. The Diocese of Rockville Centre
61. Plaintiff Diocese of Rockville Centre encompasses 134 parishes on Long Island. Formed from the Diocese of Brooklyn in 1957, the Diocese of Rockville Centre encompasses Nassau and Suffolk Counties and is the second largest diocese by population in the U.S.
62. Most Reverend Bishop William Murphy has served since 2001 as the Diocese's fourth bishop. Bishop Murphy is assisted in his ministry by two auxiliary bishops and a staff Jf over 370 priests, 771 religious women, 72 brothers, and 250 deacons. The Diocese corporaticn
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directly employs 193 persons. And the Diocese of Rockville Centre, together with its hospitals, parishes, schools, and other Diocese-associated institutions employs approximately 19,800 lay employees, making it the second largest non-governmental employer on Long Island.
63. The Diocese does not keep statistics on the number of its employees who are not Catholic.
64. The Diocese of Rockville Centre oversees a variety of liturgical, sacramental,llld faith formation programs. Parish and diocesan programs provide ongoing faith formation for its adult members, and the Diocese works for the inclusion of persons with special needs in faith formation and parish life.
65. The Diocese conducts its educational mission through its schools. Over 33,000 students are educated in fifty-seven Catholic elementary and ten Catholic high schools in the Diocese by over 2,000 dedicated educators. The Diocese supervises the operation of fifty-thr~e of the Catholic elementary schools and three of the high schools, overseeing the education of 17,033 elementary and 3,520 high school students. Between 99 and 100% of the Diocese's students are accepted into two- or four-year colleges.
66. The Diocesan schools welcome students of any or no faith. There are many ncnCatholics in the elementary and secondary schools within the Diocese.
67. The Diocese of Rockville Centre is also committed to social services in the community. In 2010, more than 59,000 poor, vulnerable, and disadvantaged individuals were assisted by Catholic Charities on Long Island. Diocesan programs served a combined total of 503,856 in 2010. Through parish outreach programs supported by the Diocese, direct service:; were provided to more than 19,000 persons each month in 2010. That same year, the Diocese also served 345,000 individuals in hospitals, 3,000 inmates, and 45,000 people living in the

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Dominican Republic. In addition, the Diocese helps make housing and supportive services available to adults with chronic mental illness and substance abuse difficulties and helps proyide safe and affordable housing to people in its communities through support of 15 senior housing facilities with 1,298 affordable apartments and a residence for disabled individuals (multigenerational housing) with 31 units.
68. Through its parishes and programs, the Diocese serves an indeterminate number of persons who are not Catholic. The Diocese's social services are not conditioned on religious faith.
69. It is therefore unclear whether the Diocese qualifies for the exemption from compliance with the U.S. Government Mandate offered to organizations deemed "religious employers" under the U.S. Government Mandate's narrow exemption.
70. Moreover, the process by which the Government proposes to determine whether an organization-such as the Diocese--qualifies for the exemption will require the Governmt:nt to engage in an intrusive inquiry, based on principles inconsistent with the Catholic faith, into whether, in the view of the Department of Health and Human Services, (I) the Diocese's "purpose" is the "inculcation of religious values"; (2) whether the Diocese "primarily" employs "persons who share [its] religious tenets," even though it does not discriminate on the basis of religion in its hiring and does not know how many Catholics it employs; and (3) whether it "primarily" serves such people, even though its schools and social services are open to all, without regard to their religion.
71. Regardless of the outcome, the Diocese strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
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72. Finally, the Diocese operates a self-insured health plan. That is, other than for the performance of administrative services only, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the plan administered by the Diocese itself functions as the risk-bearing insurance entity underwriting its employees' medical costs. The plan year for the Diocese (and the organizations its health p\;m insures) begins on January I.
73. The Diocese's current health plan does not meet the Affordable Care Act's definition of a "grandfathered" plan because the Diocese made certain changes to the plan shortly after the Act was passed, causing the plan to lose any "grandfathered" status.
74. The Diocese's health plan covers contraception and sterilization products and/or services only where they are medically necessary apart from their contraceptive or sterilizing purposes. No abortion-inducing drugs are covered.
75. For fiscal 2011-2012, the Diocese's operating budget was $30,844,000, including subsidies paid to related entities. The negative financial impact of an annual fine would be significant for the Diocese, as it struggles to balance its budget each and every year.
D. Catholic Charities of the Diocese of Rockville Centre 76. As a ministry of the Roman Catholic Church, Catholic Charities of the Dioce:;e of .
Rockville Centre assists in serving the basic needs of the poor, troubled, weak, and oppressei and aims to organize and empower people to secure the participation of all in the life of the community.
77. Since its founding in 1957, Catholic Charities has grown to a leadership position in human services in the region. The agency now provides a full range of services, operating out of more than sixty sites. With an operating budget of$35.5 million and over 600 employees, the agency served nearly 60,000 people who received more than 1.4 million face-to-face services in
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2010 through programs that provide food and nutrition, mental health care, chemical depend.!ncy treatment, maternity services, immigrant services, HIV/AIDS services, senior services, housing, services for people with physical or developmental disabilities, or a combination of these.
78. The services Catholic Charities provides are indispensible to the community. For example, in October 2009, the u.S. Department ofAgriculture and the New York State Department of Health chose Catholic Charities of Rockville Centre to administer their only bicounty Women, Infants and Children (WIC) program to residents of Nassau and Suffolk Counties. WIC provides nutritious foods, nutrition education, and referrals to health and social services to low-income pregnant, postpartum, and breastfeeding women, and children up to the age of five who are at nutrition risk. Catholic Charities served 815 people in 2010 through the WIC program.
79. In October 2009, Catholic Charities also opened Mary's Residence, a new transitional living facility for unwed young mothers. The home is located next to Catholic Charities' Regina Residence in Merrick and is an extension of Regina's program, which has offered housing and supportive services to single mothers and their children for over forty ye ars. Regina Maternity Services provides optimal support for young women to help them to develop into responsible, loving, working mothers, and served 96 women in 2010.
80. In addition, the Catholic Charities Housing Department recently opened Cabrini Gardens, which contains sixty-five units of affordable housing in Coram for low-income seru.ors. In total, Catholic Charities offers 1,329 total units at sixteen locations, making it one of the largest nonprofit providers of affordable housing on Long Island. In 2010, 4,227 individuals were served through Catholic Charities' housing services.
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81. Long Islanders facing difficulties, of any or no faith, come to Catholic Charitks

for help meeting their basic needs. Offers of services by Catholic Charities are never

conditioned on religious faith, and Catholic Charities does not know how many of those it serves are Catholic.

82. Catholic Charities has 617 employees. Catholic Charities does not inquire abo ut the religious commitments of its applicants for employment, does not know how many of its employees are Catholic, and does not include religious faith as a basis in hiring employees.
83. Catholic Charities employees are offered health insurance through the Diocese of Rockville Centre's health plan.

84. Catholic Charities itself does not qualify for the exemption for "religious employers. "
85. The negative financial impact of an annual fine imposed pursuant to the U.S. Government Mandate would have a devastating impact upon Catholic Charities, and would so constrain its ability to maintain services as to preclude it from carrying out its mission of service to the poor and needy. If fines for failure to comply with the U.S. Government Mandate were imposed, Catholic Charities' current operations would become unsustainable, and it would be rendered insolvent.
E. Catholic Health Services of Long Island 86. CHSLI is a New York not-for-profit corporation that oversees the Diocese of
Rockville Centre's health care ministries. CHSLl operates as the active parent organization ora healthcare system consisting of separately incorporated not-for-profit corporations located in Nassau and Suffolk Counties on Long Island, New York.
87. CHSLI is an integral part of the Diocese's mission to provide compassion and care to all Long Islanders, while remaining faithful to the principles of the Catholic faith.

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CHSLI strives to be a leader, a partner and an advocate in creating innovative health and

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wellness solutions that improve the lives of the individuals and communities it serves.

88. Since 1907, Catholic healthcare on Long Island has built a distinguished tradition of operating community-based hospitals and human service organizations. These services have become widely valued for the high quality of their compassionate care for people from all walks of life and of every religious belief and ethnic group.

89. Founded in 1997 to oversee Catholic healthcare organizations within the Diocfse, CHSLI serves hundreds of thousands of Long Islanders each year that extends from providin~; care at the beginning oflife to helping people live their final years in comfort, grace, and dignity.

Since its formation as a system, and before that as individual hospitals and health care providf:rs, CHSLI, like ArchCare, has relied on the Ethical and Religious Directives. These Directives

predate the existence of CHSLI. Since the formation of CHSLI as a system, they have been considered by CHSLI's governance as one ofCHSLI's core guiding documents.

90. As stated in the Preamble to the Ethical and Religious Directives:
The Ethical and Religious Directives are concerned primarily with institutionally based Catholic health care services. They address the sponsors, trustees, administrators, chaplains, physicians, health care personnel and patients or residents of the institutions or services. . .. The Directives have been refined through an extensive process of consultation with bishops, theologians, sponsors, administrators, physicians, and other health care providers.
91. The Ethical and Religious Directives are guiding principles for Catholic

healthcare institutions, including ArchCare and CHSLI. CHSLI incorporates the Ethical and

Religious Directives, as interpreted by the Bishop of the Diocese of Rockville Centre, into

hundreds of CHSLI contracts.

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92. CHSLI's 1997 Certificate ofIncorporation states the purposes for which the Corporation is fonned as follows:
[TJhe Corporation is organized and shall be operated exclusively for the charitable purpose of supporting and strengthening the ministries of the Dioce~;e ofRockville Centre ("the Diocese") and other ministries which also are supervised or controlled by or in connection with the Roman Catholic Church in the management of their spiritual, material and financial resources in conformi!l: with the ethical and moral teachings of the Roman Catholic Church. and promoting efficient governance and management, cooperative planning and thi: sharing of resources among such ministries. (Article 3, section (a) Certificate of Incorporation dated October 23,1997) (emphasis added). 93. In its 1997 Certificate ofIncorporation, Article 8 reads in its entirety, as follows:
"The Corporation shall operate in accordance with The Ethical and Religious Directives for
Catholic Health Services as promulgated and interpreted by the Bishop of the Roman Catholi.;
Diocese of Rockville Centre." (Article 8, Certificate ofIncorporation dated October 23,1997.)
94. Section 1.02 of the By-laws of the Corporation reads in its entirety:
Section -1.02 Adherence to Catholic Doctrine. The Corporation shall adhere at all times to the Ethical and Religious Directive s for Catholic Health Care Services as published and interpreted by the Bishop of the Diocese of Rockville Centre. Each of the individual CHS hospitals and other affiliates has a parallel provision in its corporate
by-laws. 95. At its inception, CHSLI was composed of four acute care hospitals, two nursin:~
homes, three home care companies, four hospice divisions, and numerous supporting compan::es.
CHSLI has continued to increase its presence on Long Island as a provider of health services,
and currently consists of six acute care hospitals, three nursing homes, certified home health and
long-tenn healthcare programs, a hospice service and a network of services for the mentally ald
developmentally disabled, all based on Long Island.
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%. More than 17,000 staff, including 3,068 registered nurses, and mor~ than 3,000 affiliated physicians assist patients throughout CHSLI's health care network. The CHSLI

hospitals contain approximately 1,928 licensed acute care beds. The CHSLI system administers

more than 2,700 acute and non-acute beds. CHSLI's annual operating budget is approximately $2 billion.

97. CHSLI is the licensed co-operator of each of the six hospitals within CHSLI. The

six high-quality and award-winning hospitals operated by CHSLI provide a full continuum of

much-needed and, in many cases, uniquely specialized care across all of Long Island:

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St. Francis Hospital d/b/a St. Francis Hospital, The Heart Center ("St.

Francis")--a not-for-profit hospital located in Roslyn, Nassau County, New

York, with 364 licensed beds, that delivers specialized cardiac and general

medical acute care services and conducts cardiovascular research. St. Francis has

achieved "Magnet" recognition twice and is a cardiac specialty center. St. Francis

has been consistently recognized for its outstanding quality of care. Patients are

transferred to St. Francis from community hospitals throughout Long Island, the

New York metropolitan area, other states and abroad for emergency cardiac

diagnosis and treatment. St. Francis also provides crucial diagnostic testing, such

as stress testing, echocardiography, computed tomography angiography, cardia~

magnetic resonance imaging and catheter-based repair of congenital heart defe(:ts.

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Good Samaritan Hospital Medical Center ("Good Samaritan")--a not-for-

profit, regional teaching medical center located on the south shore of Long Islald

in West Islip, Suffolk County, New York. Good Samaritan has 537 licensed b(:ds,

including 100 nursing home beds. The hospital is also a "Magnet" recognized

institution and is a New York State Designated Level II Trauma Center. Good

Samaritan provides inpatient, ambulatory care, certified home health and dialys is

services, as well as a full range of diagnostic and therapeutic services on an

inpatient and outpatient basis. Good Samaritan recently expanded its Division of

Cardiology and will soon integrate the St. Francis cardiac surgery program at

Good Samaritan. Good Samaritan also operates offsite facilities, including two

chronic dialysis centers, a women's imaging center, a home health agency, a

nursing home and a pediatric specialty facility, in addition to staffing two

community health clinics.

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St. Catherine of Siena Medical Center ("St. Catherine")--a not-for-profit

hospital located in Smithtown, Suffolk County, New York. St. Catherine was

acquired by CHSLI in 2000, and has 558 licensed beds, including 240 nursing

home beds. St. Catherine is certified for ambulatory surgery, acute and chronic

renal dialysis, neonatal intensive care, cardiac catheterization, and magnetic

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resonance imaging. St. Catherine operates the Women's Health and Outpatient Diagnostic Pavilion and St. Catherine of Siena Nursing and Rehabilitation Care Center. St. Catherine is also the owner of Siena Medical Realty, LLC, which operates a 51,000 square foot medical office building, and is the sole member 'Jf Siena Village, Inc., which operates a 298-unit subsidized apartment complex f,Jr the elderly and disabled.

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Mercy Medical Center ("Mercy")--a not-for-profit community hospital located

in Rockville Centre, Nassau County, New York. Founded in 1913, Mercy has

375 licensed beds, and offers a broad range of diagnostic and therapeutic servi<:es

on an inpatient and outpatient basis, as well as specialized services in the areas of

cardiology, oncology, maternal and neonatal intensive care, behavioral health,

orthopedic surgery, and physical medicine and rehabilitation. Mercy has the only

Level III Neonatal Intensive Care Unit on the south shore of Nassau County.

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St. Charles Hospital ("St. Charles")--anot-for-profit hospital that has provided

medical, surgical and rehabilitation services since 1907. In addition to its general

hospital with 231 licensed beds located in Port Jefferson, Suffolk County, Nevo.

York, St. Charles operates outpatient rehabilitation facilities in Port Jefferson,

Smithtown, Melville, Patchogue, Riverhead, Centereach, Setauket, Ronkonkoma,

all in Suffolk County, and in Albertson, Nassau County. St. Charles was the first

hospital in Suffolk County to become a designated Stroke Center. St. Charles

offers a broad range of diagnostic, therapeutic and rehabilitative services for

adults and children on an inpatient and outpatient basis.

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St. Joseph Hospital ("St. Joseph")--a not-for-profit hospital located in

Bethpage, Nassau County, New York. St. Joseph was acquired by CHS in

January 2010 and has 231 licensed beds and provides comprehensive inpatient

and outpatient medical services, critical care and surgical services. St. Joseph

specializes in wound care and is the only hospital on Long Island to have a Center

for Wound Care and Hyperbaric Medicine accredited by the Undersea and

Hyperbaric Medical Society-a recognition awarded to just 15% of facilities with

related services. Other services offered include emergency medicine, ambulatory

surgery, sleep medicine and diabetes education.

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98. CHSLI's acute care hospitals are known for providing excellence in care and

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committing themselves to those in need. This is evidenced by the numerous awards and national

recognition they have earned. As noted, two of the six hospitals, St. Francis and Good

Samaritan, have earned "Magnet" recognition status, the highest honor for nursing care. The

CHSLI network won both the 2010 HANYS Pinnacle Award for Quality and Patient Safety and

the 2011 HANYS Community Health Improvement Award.

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99. Starting in 2007, St. Francis has achieved a US News & World Report ranking

each year in the top 30 hospitals nationally for cardiac care; it is the only hospital on Long Island

to be so ranked for the most recent five consecutive years. In 201 I, St. Francis was also rank,!d

7th overall in New York State by US News & World Report.

100. Additionally, Mercy earned 5 stars from HealthGrades® for Joint Replacemen;:s,

Total Knee Replacement and Hip Fracture Repair, while St. Charles has been named a Blue

Distinction Center for Total Joint Replacement. Good Samaritan, St. Catherine and Mercy were

named Bariatric Surgery Centers of Excellence.

101. CHSLI also has a uniquely well-developed continuum of care, providing services

to those in need of a full range of health care services on Long Island to improve quality

outcomes and offer patients seamless transfers. These services include an extensive system of

long-term and sub-acute facilities, home health agencies (both short- and long-term), an inpatient

and community hospice, a durable medical equipment company, a community-based school,

residential housing and day programs for children and adults with developmental and behavioral

disabilities, and an outpatient and residential substance abuse and mental health program.

Among the facilities in CHSLI's continuum of health care providers are:

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Catholic Home Care---the largest home health organization on Long Island,

Nursing Sisters Home Care (d/b/a Catholic Home Care) is a certified home health

agency licensed in Nassau and Suffolk Counties, which has developed a health

monitoring program, enabling the reduction of hospital length of stay and

readmissions while improving patient outcomes. Catholic Home Care is also the

sole member ofCHS Home Support Services, a licensed durable medical

equipment provider.

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Maryhaven Center of Hope ("Maryhaven"}-provides behavioral health

services to developmentally disabled individuals, and operates an intermediate

care facility, a school, community residences, individual residential alternative

sites and supportive living facilities, primarily in Suffolk County, New York.

Maryhaven is fully interwoven into the Suffolk County community as a provider

of health care and related services.

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Our Lady of Consolation Geriatric Care Center d/b/a Our Lady of

Consolation Nursing and Rehabilitative Care Center ("Our Lady of

Consolation"}---a 4S0-bed nursing home in West Islip, Suffolk County, New

York. Skilled nursing care at Our Lady of Consolation includes geriatric,

rehabilitative and medically complex care. In addition, Our Lady of Consolation

offers a long-term home health care program that provides critical services to

Long Island's elderly and sick, while reducing the burden on area hospitals.

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Good Shepherd Hospice ("Good Shepherd")---operates a 16-bed inpatient

hospice unit on the campus of St. Charles in Port Jefferson, Suffolk County, N~w

York, and provides end-of-life care to patients in their homes and in skilled

nursing facilities. Good Shepherd is licensed to operate in Nassau and Suffolk

Counties.

102. CHSLI does not condition employment upon one's religious faith and does nol

track the percentage of employees who are Catholic. In carrying out their job functions,

employees are required to comply with the Ethical and Religious Directives, but employees do

not have to agree with or believe in those directives.

103. CHSLI does not condition receipt of medical services at any of its member

facilities on patient affiliation with the Roman Catholic Church and/or the Diocese. CHSLI does

not know how many of those it serves are Catholic.

104. While CHSLI and its member organizations are exempt organizations under

SOI(c)(3) of the IRS Code, neither CHSLI nor its members are currently designated as a

"church[)," an "integrat[ed] auxiliar[y]" ofa church, or a "religious order" pursuant to 26 U.S.C.

§ 6033(a)(3)(i), (iii).

105. CHSLI offers health care insurance to its employees and employees of its member

corporations through a self-insured program administered by a third party, Empire BlueCross

BlueShield. The plan year for CHSLI begins on January I.

106. The health plan offered by CHSLI to its employees is not a "grandfathered" plm

because CHSLI made plan design changes for January 1,2011 that triggered the loss of

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"grandfathered" status. For example, CHSLI increased its specialist office visit copay to an amount that exceeds the limits for "grandfathered" plans.
107. Consistent with its mission and the Ethical and Religious Directives, CHSLI's health plan does not cover abortion-inducing drugs, sterilization, or contraceptives.
108. Compliance with the proposed U.S. Government Mandate would, iffollowed, force CHSLI and its member institutions to violate their Catholic principles, as set forth in detail in the Ethical and Religious Directives.
109. As such, CHSLI could not, consistent with its Catholic identity and mission an:! its corporate documents, accept having to comply with the U.S. Government Mandate insofar as it concerns contraception coverage as a condition to continuing to operate as an employer and critical provider of necessary medical care. II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 110. In March 20 I0, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the "Act"). The Affordable Care Act established many new requirements for "group health plan[i;]," broadly defined 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[] medical care . . . to employees or their dependents." 42 U.S.C. § 300gg-91(a)(1).
111. As relevant here, the Act requires an employer's group health plan to cover certain women's "preventive care." Specifically, it indicated 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)
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with respect to women, such additional preventive care and screenings ... as provided for in

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comprehensive guidelines supported by the Health Resources and Services Administration for

purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits "cost

sharing requirements," the health plan must pay for the full costs of these "preventive care" .

services without any deductible or co-payment.

112. "[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 Car,~

Act, 75 Fed. Reg. 41,726, 41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.C. § 18011.

These so-called "grandfathered health plans do not have to meet the requirements" of the U.S.

Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals ....i11

be enrolled in grandfathered group health plans in 2013." Id. at 41,732.

113. Violations ofthe Affordable Care Act can subject an employer and an insurer tD

substantial monetary penalties.

114. 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 pel"

full-time employee. See 26 U.S.C. § 4980H(a), (c)(I).

115. 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 of the Preventative Health Care Services Requirements of the Patient

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Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the "preventive care" provision of the Affordable Care Act).
116. 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 tile "preventive care" provision of the Affordable Care Act).
117. ERISA may provide for additional penalties. Under ERISA, plan participants ,;an bring civil actions against insurers for unpaid benefits. 29 U.S.C. § I I32(a)(I)(8); 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. § I 132(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).
118. Several of the Act's provisions, along with other federal statutes, reflect a c1eal 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 state s 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 benefits for any plan year." 42 U.S.c. § 18023(b)(I )(A)(i). And the Act left it to "the issuer of a qualified health plan," not the Government, "[to] determine whether or not the plan provides coverage of[abortion]." Id § 18023(b)(I)(A)(ii).

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119. Likewise, the Weldon Amendment, which has been included in every HHS aIld 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 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 of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(l), 125 Stat. 786, 1111 (2011).
120. 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. For example, the House of Representatives originally passed a bill that included ar, amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, Ilith Congo § 265 (Nov. 7,2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, III th Congo (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents ofthe Act engaged in a procedure known as "budget reconciliation" that 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 failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, 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, 20 I0).
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121. The Act was, therefore, passed on the central premise that all agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion. Id That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscieLce clauses.
B. Regulatory Background Defining "Preventive Care" and the Narrow Exemption 122. In less than two years, 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 governing the promulgation and implementation of rules of this magnitude.
123. In particular, on July 19, 2010, Defendants issued initial interim final 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 dispensed with notice-and-comment rulemaking for these rules. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants claimed both 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.
124. The interim final rules referred to the Affordable Care Act's statutory language. They indicated 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
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women, to the extent not described in paragraph (a)(I)(i) of this section, evidence-informed

preventive care and screenings provided for in comprehensive guidelines supported by the

Health Resources and Services Administration." Interim Final Rules, 75 Fed. Reg. at 41,75S

(codified at 45 C.F.R. § 147.130(a)(iv)).

125. The interim final rules, however, failed to identify the women's "preventive cll'e"

that Defendants planned to refluire employer group health plans to cover. 42 U.S.C. § 300g~;-,

13(a)(4). Instead, Defendants noted that "[t]he Department ofHHS [was] developing these

guidelines and expects to issue them no la,ter than August I, 201\." Id.

126. Defendants permitted concerned entities to provide written comments about the

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interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply

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with the notice-and-comment.requir~ments of the APA. Id. at 41,730.

127. In response, several groups engaged in a lobbying effort to persuade Defendants

to include various contraceptives and abortion-inducing drugs in the "preventive care"

requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned,

Parenthood Supports Initial White House Regulations on Preventive Care (July 14,2010),

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available at http://www.pl~edparenthood.org/about-us/newsroom/press-releases/planned-

parenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new-

33l40.htm. Other commenters noted that "preventive care" could not reasonably be interpreted

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to include such practices. These groups indicated that pregnancy was not a disease that needed

to be "prevented," and that a contrary view would intrude on the sincerely held beliefs of many

religiously affiliated organiZlitions. See, e.g., Comments of U.S. Conference of Catholic

Bishops, at 1-2 (Sept. 17,2010), available at http://old.usccb.org/ogc/preventive.pdf.

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128. In addition to the u.s. Government Mandate that applies to group health plan1: for
employees, on February II, 20II, HHS also announced that, if colleges or universities contract with a health insurance issuer to provide insurance to their students, the health insurance issuer must provide these "preventive care" services in the student health plans. See Student Health Insurance Coverage, 76 Fed. Reg. 7,767, 7,772 (Feb. 11,2011).
129. On August I, 2011, HHS agnounced the "preventive care" services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive SerVices at No Additional Cost (Aug. 1,2011), available at http://www.hhs.gov/news/press/201Ipres/0812011080Ib.html. Again acting without notice-andcomment 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.("IOM"). See id In developing the guidelines, 10M invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage· of contraception, abortion, and related ' education and counseling were among the invited presenters. Comm. on Preventive Servs. fc)r Women, Inst. of Med., Clinical Preventive Services for Women App. B at 217-21 (20 II), available at http://www.nap.eduiopenbook.php?record_id=13181&page=RI.
130. The 10M's own report, in turn, included a dissent that suggested that the 10M's recommendations were made on an unduly short time frame dictated by political considerations, through a process that was largely subject to the preferences ofthe committee's composition, and without the appropriate transparency for all concerned persons.
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\,

131. In direct contradiction of the central compromise necessary for the Affordable

Care Act's passage and President Obama's promise to protect religious liberty, HHS's guidelines

required insurers and group health plans to cover "[a]II Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all

women with reproductive capacity." See Health Res. Servs. Admin., Women's Preventive

Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguideline:;/

(last visited Apr. 25, 2012). FDA-approved contraceptives that qualifY under these guideline:;

include drugs that induce abortions. For example, the FDA has approved "emergency

contraceptives" such as the morning-after pill (otherwise known as Plan 8), which can prevent

an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.

132. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had enacted in July 2010. 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). Defendants issued the amendment;

again without notice-and-comment rulemaking on the same grounds that they had provided for bypassing the APA with the original rules. See id at 46,624.
133. When announcing the amended regulations, Defendants ignored the view that

"preventive care" should exclude abortion-inducing drugs, sterilization, or 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." Id. at

46,623.

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134. Defendants 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." Id Specifically, the regulatory exemption ignores definitions of religious ./
employers already existing in federal law and, instead, covers only those employers whose
purpose is to inculcate religious values, and who employ and serve primarily individuals of the
same religion. It provides in full:
(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.
(8) For purposes of this subsection, a "religious employer" is an organization that meets all of the following criteria: (l) 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)(l) 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. § 147.130(a)(iv)(A)-(8».
135. The exemption excludes the health plans of all other religiously affiliated
employers that view their missions as providing charitable, educational, and employment
opportunities to all those who request it, regardless of their religious faith.
136. Moreover, determining whether an organization is sufficiently "religious" to
qualify for the exemption requires an unconstitutionally invasive inquiry into an organization's
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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 whethr the organization "primarily" employs and "primarily" serves individuals who "share" the organization's "religious tenets"; and it must determine whether "the purpose" of the organization is the "inculcation of religious values."
137. When issuing this interim final rule, Defendants did not explain why they constructed such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other "longstanding Federal laws to protect conscience" that President Obama's executive order previously had 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, more broadly defined to cover civil law corporations, including universities, that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act's requirement that all individuals maintain minimum essential coverage excludes those individuals who have a religious objection to receiving benefits from public OJ private insurance. 26 U.S.C. §§ 1402(g)(\), 5000A(d)(2). Nor did Defendants consider whetiler they had a compelling interest to require religiously affiliated employers to include services in their health plans that were contrary to their religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
138. Suggesting that they were open to good-faith discussion, Defendants once agaitl permitted parties to provide comments to the amended rules. Numerous organizations expres;ed the same concerns that they had before, noting that the mandated services should not be viewt:d as "preventive care." They also explained that the religious exemption was "narrower than ary conscience clause ever enacted in federal law, and narrower than the vast majority of religiow:
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exemptions from state contraceptive mandates." Comments of U.S. Conference ofCathoIic Bishops at 1-2 (Aug. 31, 2011), available at http://www.usccb.org!aboutlgeneral_ counsellrulemaking!upload!comments-to-hhs-on-preventive_services-2011-08. pdf.
139. Three months later, "[a]fter evaluating [the new] comments" to the interim final rules, Defendants gave their response. They did not request further discussion or make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short, Friday-afternoon press release, announcing, with little analysis or reasoning, that HHS had decided to keep the exemption unchanged, but creating a temporary enforcement safe harbor whereby "[n]onprofit employers who, based on religious beliefs, do not currently pro\ide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1,2013, to comply with the new law." See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/OI/20120120a.html. As noted by Cardinal Timothy Dolan, the release effectively gave objecting religious institutions "a year to figure (,ut how to violate [their] consciences." Taken together, these various rules and press releases amount to a mandate that requires most religiously affiliated organizations to provide coverage for services that are directly contrary to their religious beliefs.
140. On February 10,2012, after a continuing public outcry against the U.S. Government Mandate and its·exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate. Th~ White House announced that it had come up with a policy to "accommodate" religious objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion- inducing drugs,
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1
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•

.,

I

sterilization, or contraceptives "will be required to directly offer ... contraceptive care [to phm participants] free of charge." White House, Fact Sheet: Women's Preventive Services and Religious Institutions (Feb. 10,2012), available athttp;llwww.whitehouse.gov/the-pressoffice/20 12/0211O/fact-sheet-women-s-preventive-services-and-religious-institutions.
141. Despite objections that this "accommodation" did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded; "No, this is our plan." David Eldridge & Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, http;1Iwww.washingtontimes.comlnews/2012/feb/12/white-house-birth-controlcompromise-will-standlprintl.
142. Defendants subsequently 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). The Federal Register further asserted that the rulemaking would "achieve the same goals for self-insured group health plans." Id.
143. Defendants then "finalize[d], without change," the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously armounced "temporary enforcement safe harbor" for "non-exempted, non-profit religious organizations with religious objections to such coverage." Id. at 8725; see Ctr for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb.

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10, 2012), available at http://cciio.cms.gov/resources/fileslFiles2/02l 02012/20120210Preventive-Services-Bulletin.pdf.
144. 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." Moreover, even if these prop~sals were adopted, they would still require religious organizations to provide, pay for, and/or facilitate access to the objectionable services. Finally, it is also unclear whether the Government has statutory authority to implement each ofthe possibilities referenced in the ANPRM.
145. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White HouSI! or in the form of an ANPRM, does not, in fact, change the law. The U.S. Government Mandate is therefore the current, operative law. Plaintiffs have until the start of the next plan year following August 1, 2013, to come into compliance with this law. III. THE U.S. GOVERNMENT MANDATE IMPOSES AN IMMEDIATE AND
SUBSTANTIAL BURDEN ON PLAINTIFFS' RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs' Religious Beli4~fs
146. As Cardinal Dolan observed, "we know so very well that religious freedom is cur heritage, our legacy and our firm belief, both as loyal Catholics and Americans." Indeed, sinc(: the founding of this country, our society and legal system have recognized that individuals an(1 institutions are entitled to freedom of conscience and religious practice. As noted by Thomas
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, , . - - - - - - - -
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."
147. The U.S. Government Mandate seeks to require Plaintiffs to provide, pay for, and/or facilitate access to services that are contrary to their religious beliefs. It thus severely burdens Plaintiffs' firmly held religious beliefs.
148. 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 t.eld religious beliefs.
149. Although the U.S. Government Mandate contains a narrow religious exemption, in order to qualify, religious organizations must submit to an invasive governmental inquiry regarding their purpose and religious beliefs. Requiring Plaintiffs to submit to this governmentconducted religious test likewise substantially burdens their firmly held religious beliefs.
150. It is unclear how the Government defines or will interpret "the purpose" of an organization.
151. It is unclear how the Government defines or will interpret vague terms, such as "primarily," "share" and "religious tenets."
152. It is unclear how the Government will ascertain the "religious tenets" of an organization, those it employs, and those it serves.
153. It is unclear how much overlap the Government will require for religious tenet~: to be "share[d]."
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154. Any attempt by Plaintiffs to qualify for the narrow religious employer exempfon by restricting their charitable, medical, and educational missions to coreligionists would have devastating effects on the communities Plaintiffs serve.
ISS. Indeed, the Government does not even provide Plaintiffs the option to attempt to avoid the U.S. Government Mandate by exiting the health care market. Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose each Plaintiff to substantial annual fines. It is no "choice" to leave those employees scrambling for health insurance while SUbjecting Plaintiffs to significa~t fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiffs to adhere to their religious beliefs.
156. The U.S. Government Mandate also inhibits Plaintiffs' ability to hire and retain employees, attract students, and solicit charitable contributions.
157. Nor would the opaque, promised "accommodation"~ven if it were law, which it is not-relieve Plaintiffs from the unconscionable position in which the U.S. Government Mandate currently puts them, for numerous reasons.
158. First, the promised "accommodation" would not alter the fact that Plaintiffs we uld 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 viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
159. 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
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premiums or fees. Under the proposed accommodation, doctors will still have to be paid to
i prescribe the objectionable services and drug companies and pharmacists will still have to be paid for providing them. Hypothetical future savings cannot be used to pay those fees; rather, the money will necessarily be derived from increased premiums or fees. 160. Third, the "accommodation" does not affect the narrow exemption applicable 10 "religious employers." To qualify for that narrow exemption, religious organizations must submit to an invasive governmental inquiry. Requiring Plaintiffs to submit to this governmentconducted test to determine if Plaintiffs are sufficiently religious is inappropriate and substantially burdens their firmly held religious beliefs. 161. Finally, as noted below, the U.S. Government Mandate is burdening Plaintiffs religious beliefs right now. Plaintiffs cannot possibly wait until August 1,2013, to determine how to respond to the U.S. Government Mandate. 162. In short, while the President claimed to have "flou]nd a solution that works for everyone" and that ensures that "[r]eligious liberty will be protected," in reality, his promised "accommodation" does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs religious beliefs. B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 163. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement 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 disagree with certain religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
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164. For example, the U.S. Government Mandate exempts all "grandfathered" plan,

\

from its requirements.

165. The Government has also crafted a religious exemption to the U.S. Government

Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by

religious organizations that have, as their "purpose," the "inculcation of religious values"; that

"primarily" serve individuals that share their religious tenets; and that "primarily" employ su;h

individuals. 45 C.F.R. § 147.130(a)(iv)(8).

166. 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. Defendant Sebelius has long supported abortion

rights and criticized 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, Defendant Sebelius said, "we are in a war," and criticized

individuals and entities whose beliefs differed from those held by her and the other attendees of

the NARAL Pro-Choice America fundraiser. She added: "Wouldn't you think that people who

want to reduce the nUiffiber of abortions would champion the cause of widely available, widel y

affordable contraceptive services? Not so much."

167. Consequently, on information and belief, Plaintiffs allege that the purpose of~le

U.S. Government Mandate, including the narrow exemption, is to discriminate against religious

institutions and organizations that oppose abortion and contraception.

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C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furtheri!!lU!
Compelling Governmental Interest 168. The U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest. 169. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to provide, pay for, or facilitate access to abortion-inducing drugs, sterilizations, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plainti ffs do inhibits any individual from exercising that right. 170. Even assuming the interest was compelling. the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through 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 state lavrs throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest. 171. The U.S. Government 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, medical. and educational services that Plaintiffs provide. The Archdiocese of New York and the Diocese of Rockville Centre serve New Yorkers through their
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many charitable programs and through the education of students in their respective school systems. Catholic Charities of the Diocese of Rockville Centre offers a host of social services to address the basic needs of the poor, troubled, weak, and oppressed in the area. CHSLI provides care for hundreds of thousands of Long Islanders each year, and ArchCare cares for frail and vulnerable people unable to fully care for themselves. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiffs do "more good for a community than a government program ever could."
172. The U.S. Government Mandate puts these good works in jeopardy. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandat,! cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
D. The U.S. Government Mandate's Religious Employer Exemption Excessively Entangles the Government in Religion and Interferes with Religious InstitutionL Religious Doctrine
173. 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.
174. In order to determine whether the Archdiocese of New York, Diocese of Rockville Centre, or any other 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.
175. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organization ultimately employs and educates.
176. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are "share[dJ."
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177. Regardless of the outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into an organization's religious mission.
178. The religious employer exemption is based on an improper Government determination that "inculcation" is the only legitimate religious purpose.
179. The Government should not base an exemption on an assessment of the ''purit/' or legitimacy of an institution's religious purpose.
180. By limiting that legitimate purpose to "inculcation," at the expense of other sincerely held religious purposes, the U.S. Governrilent Mandate interferes 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.
181. 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.
182. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of all faiths, provide vital social services to individuals of all faiths, and employ individuals of all faiths. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of all faiths.
183. 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
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exempt entity's group health plan would also receive the benefit of the exemption. 77 Fed. Reg. at 16,502.
184. It is unclear whether, ifthe Archdiocese of New York or the Diocese of Rockville Centre qualify as "religious employers" under the exemption to the U.S. Government Mandate, any affiliated corporation that provides coverage to its employees through their respective group health plans would therefore also receive the benefit of the exemption.
E. The U.S. Government Mandate Is Causing Present Hardship to Plaintiffs That Should Be Remedied by a Court
185. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiffs that merits judicial relief now.
186. Health plans do not take shape overnight. A number of analyses, negotiations. and decisions must occur each year before Plaintiffs can offer a health benefits package to thdr employees. For example, employers that offer health insurance coverage through a self-insmed program-like the Archdiocese of New York, ArchCare, the Diocese of Rockville Centre, an:! CHSLI-must work with actuaries to evaluate their funding reserves, determine the products and services they want to offer their employees based on these reserves and the costs of such products and services, and then negotiate with third-party administrators with respect to their services.
187. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
188. For example, if Plaintiffs decide that the only tolerable option is to attempt to qualify as a "religious employer" under the U.S. Government Mandate, they will need to
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undertake a major overhaul of their corporate structures, hiring practices, and the scope of their

programming. This process could take years.

I

189. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they

may be subject to annual government fines and penalties.

190. The U.S. Government Mandate and its uncertain legality, moreover, undermine

Plaintiffs' ability to hire and retain employees.

191. Plaintiffs therefore need judicial relief now in order to prevent the serious,

ongoing harm that the U.S. Government Mandate is already imposing on them.

IV. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA
192. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.

193. 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 furthers a compelling governmental interest and is the least

restrictive means of furthering that interest.

194. RFRA protects organizations as well as individuals from Government-imposed

substantial burdens on religious exercise.

195. RFRA applies to all federal law and the implementation of that law by any

branch, department, agency, instrumentality, or official ofthe United States.

196. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or

facilitate practices and speech that are contrary to their religious beliefs.

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197. In order to qualifY for the "religious employer" exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs.
198. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion.
199. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
200. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the kast restrictive means of furthering a compelling governmental interest.
201. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
202. Plaintiffs have no adequate remedy at law. 203. Defendants are imposing an immediate and ongoing hann on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause ofthe First Amendment 204. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 205. The Free Exercise Clause of the First Amendment prohibits the Government fr·)m substantially burdening an entity's exercise of religion. 206. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 207. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs.
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208. In order to qualify for the "religious employer" exemption to the U.S.

I

Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their

religious beliefs.

209. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion.

210. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related educadon and counseling.
211. The U.S. Government Mandate is not a neutral law 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.
212. 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.
213. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
214. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.

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215. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs' religious exercise in violation of the Free Exercise Clat'se of the First Amendment.
216. Plaintiffs have no adequate remedy at law. 217. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTm Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 218. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 219. The Free Exercise Clause and the Establishment Clause 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. 220. This prohibition on excessive entanglement protects organizations as well as individuals. 221. In order to qualify for the exemption to the U.S. Government Mandate for "religious employers," entities must submit to an invasive government 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. 222. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice. 223. The U.S. Government Mandate results in an excessive entanglement between religion and Government. 224. The U.S. Government Mandate is therefore unconstitutional and invalid.
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225. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment.
226. Plaintiffs have no adequate remedy at law. 227. The U.S. Government Mandate and its impending enforcement impose an irnmediate 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 228. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 229. The Free Exercise Clause and the Establishment Clause ofthe First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 230. This mandate of equal treatment protects organizations as well as individuals. 231. 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. 232. 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. 233. The U.S. Government Mandate's definition of religious employer furthers no compelling governmental interest. 234. The U.S. Government Mandate's definition of religious employer is not narrowly tailored to further a compelling governmental interest. 235. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause ofthe First Amendment. 236. Plaintiffs have no adequate remedy at law.
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237. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing hann on Plaintiffs that warrants relief.
COUNT V Interference in Matters of Interna! Church Governance in Violation of the Free Exercise and Establishment Clauses ofthe First Amendment 238. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 239. The Free Exercise Clause and Establishment Clause 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. 240. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine. 241. Under these Clauses, 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. 242. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 243. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating thm:e practices. 244. Plaintiffs have abided and must continue to abide by the decision of the Cathohc Church on these issues. 245. 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. 246. Plaintiffs have therefore made the internal decision that the health plans they olfer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contracepti'Jn.
-54-

•

•

247. 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 beliefs.
248. The U.S. Government Mandate's interference with Plaintiffs' internal decision> affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
249. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs' faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
250. Plaintiffs have no adequate remedy at law. 251. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI CompeUed Speech in Violation of the Free Speech Clause ofthe First Amendment 252. Plaintiffs repeat and reallege each of the foregoing allegations in this Complairct. 253. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 254. The First Amendment protects organizations as well as individuals against compelled speech. 255. Expenditures are a form of speech protected by the First Amendment. 256. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the.speaker's religious beliefs.

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257. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate coverage of practices that violate their relig ious beliefs.
258. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices.
259. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs.
260. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
261. The U.S. Government Mandate furthers no compelling governmental interest. 262. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 263. Plaintiffs have no adequate remedy at law. 264. Defendants are imposing 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 265. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 266. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide.
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•
267. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guideline~ 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 an opportunity to participate in the rulemakin? through the submission of written data, views, or arguments.
268. Defendants promulgated the "preventive care" guidelines without engaging ir formal notice-and-comment rulemaking in a manner prescribed by law.
269. Defendants, instead, delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the 10M.
270. The 10M did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. 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.
271. Within two weeks of the 10M issuing its guidelines, Defendant HHS issued a press release announcing that the 10M's guidelines were required under the Affordable Care Act.
272. Defendants have never explained why they failed to enact these "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
273. Defendants also failed to engage in notice-and-comment rulemaking when is~uing the interim final rules and the final rule incorporating the guidelines.
274. Defendants' stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute "good cause." Providing public notice
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: \

1 -•·
I
\ ,
I I

and an opportunity for comment ,was not impracticable, unnecessary, or contrary to the publk interest for the reasons claimed by Defendants.
275. By enacting the "preventive care" guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
276. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
277. Plaintiffs have no adequate remedy at law.
278. The enactment of the u.s. Government Mandate without observance of a
procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTVIll Arbitrary and Capricious Action in Violation of the APA 279. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 280. 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). 281. The APA 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. 282. Agency action is arbitrary and capricious under the APA if the agency has faikd to consider an important aspect of the problem before it. 283. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer.

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284. Defendants failed to consider the suggestion of many commenters that abortioninducing drugs, sterilization, or contraception could not be viewed as "preventive care."
285. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Govemment Mandate should be broadened.
286. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions it made.
287. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
288. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
289. Defendants' promulgation of the U.S. Government Mandate violates the APA. 290. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 291. Plaintiffs have no adequate remedy at law. 292. Defendants are imposing an immediate and ongoing harm on the Plaintiffs that warrants relief.
COUNT IX Acting IUega!ly in Violation of the APA 293. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 294. The APA requires that all Government agency action, findings, and conclusions be "in accordance with law." 295. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA.
-59-

296. The Weldon Amendment states that "[n]one ofthe funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may b~ 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 of20l2, Pub. 1. No. 112-74, div. F, tit. V, § 507(d)(I), 12:, Stat. 786, 1111 (2011).
297. 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. § l8023(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).
298. 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 required to provide such plans.
299. The U.S. Government Mandate requires employer based-health plans to provi de coverage for abortion-inducing drugs, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
300. The U.S. Government Mandate violates RFRA. 301. The U.S. Government Mandate violates the First Amendment.
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,~

--------

/'

I

302. The U.S. Government Mandate is not in accordance with law and thus violate:; 5

\ 1

U.S.c. § 706(2)(A).

303. Plaintiffs have no adequate or available administrative remedy, or, in the

I ,

alternative, any effort to obtain an administrative remedy would be futile.

304. Plaintiffs have no adequate remedy at law.

305. Defendants' failure to act in accordance with law imposes an immediate and

ongoing harm on Plaintiffs that warrants relief.

WHEREFORE, Plaintiffs respectfully pray that this Court: I. 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 ofthe 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; 6. Award Plaintiffs attorneys' and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
JURY DEMAND Plaintiffs demand a trial by jury for all issues so triable as a matter of right.

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Dated: May 21, 2012 New York, New York

Respectfully submitted,
JONES DAY
~'fJ.~.
Charles M. Carberry Todd R. Geremia Patrick J. Smith Julie A. Rosselot 222 East 41 st Street New York, New York 10017-6702 Telephone: (212) 326-3939 Facsimile: (212) 755-7306
Jennifer M. Bradley (pro hac vice pending) 51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113 Telephone: (202) 879-3939 Facsimile: (202) 626-1700
Attorneys for Plaintifft, The Roman Catholic Archdiocese ofNew York; Catholic Health Care System; The Roman Catholic Diocese ofRockville Centre, New York; Catholic Charities ofthe Diocese of Rockville Centre; and Catholic Health Servi,~es ofLong Island

 
 Roman Catholic Archdiocese of N.Y. v. Sebelius
United States District Court for the Eastern District of New York December 4, 2012, Decided; December 5, 2012, Filed 12 Civ. 2542 (BMC)

Reporter: 2012 U.S. Dist. LEXIS 172695

U.S. Department of Treasury, Defendants: Ben-

jamin Berwick, LEAD ATTORNEY, U.S. De-

THE ROMAN CATHOLIC ARCHDIOCESE partment of Justice, Civil Division, Federal Pro-

OF NEW YORK, et al., Plaintiffs, -against- grams, Washington, DC.

KATHLEEN SEBELIUS, in her official capacity

as Secretary, United States Department of Health For American Center for Law & Justice, Am-

and Human Services, et al., Defendants.

icus: Neil Matthew Merkl, LEAD ATTOR-

NEY, Kelley, Drye & Warren, LLP, New

Case Summary

York, NY; Cecilia D. Noland-Heil, PRO HAC VICE, American Center for Law and Justice,

Washington, DC.

Overview Affordable Care Act coverage mandate tempo- Judges: Brian M. Cogan, U.S.D.J.

rary enforcement safe harbor did not render the alleged injury too remote, as the slightly

Opinion by: Brian M. Cogan

more than one year delay was relatively short,

so it did not prevent plaintiffs from establish-

Opinion

ing imminent injuries for standing in their chal-

lenge to the 42 U.S.C.S. § 300gg-13 preven-

tive care provisions.

MEMORANDUM DECISION AND OR-

DER

Outcome Defendants’ motion to dismiss for lack of juris- COGAN, District Judge.

diction granted in part and denied in part.

HN1 The Patient Protection and Affordable

Counsel:

[*1] For Roman Catholic Archdio-

Care Act (the ʺ″ACAʺ″), Pub. L. No. 111-148, 124 Stat. 119 (2010), [*2] requires that group

cese of New York, Catholic Health Care Sys- health insurance plans cover certain preventa-

tem, Catholic Health Services of Long Is-

tive medical services without cost-sharing, such

land, Plaintiffs: Charles Michael Carberry, LEAD ATTORNEY, Jones & Day, New York,

as a copayment or a deductible. Pursuant to regulations subsequently issued, the preventa-

NY; Patrick J. Smith, Todd R. Geremia, LEAD tive services that must be covered include con-

ATTORNEYS, Julie Ann Rosselot, Toni-Ann traception, sterilization, and related counsel-

Citera, Jones Day, New York, NY.

ing (the ʺ″Coverage Mandateʺ″), although certain

religious employers are exempt from this reFor Kathleen Sebelius, in her official capacity quirement. as Secretary of the 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,

Plaintiffs are five New York-area Roman Catholic entities. Catholic doctrine teaches that contraception and sterilization, along with other forms of artificial interference with the creation of human life, are immoral and Catholic organizations may not condone or facilitate

2012 U.S. Dist. LEXIS 172695, *2

these practices. Plaintiffs allege that the Cover- (July 19, 2010) (ʺ″Interim Final Rulesʺ″). As is rel-

age Mandate violates their rights to religious evant here, the ACA requires that group

liberty because it requires them to pay for con- health plans provide coverage for a number of

traceptive coverage despite their sincerely-

preventative medical services at no charge to

held religious beliefs. They assert claims under the patient. § 300gg-13. Specially, the ACA pro-

the Establishment, Free Exercise, and Free

vides that a group health plan must ʺ″at a mini-

Speech clauses of the First Amendment, as well mum provide coverage for and shall not im-

as the Religious Freedom Restoration Act and pose any cost sharing requirements for[,]ʺ″

the Administrative Procedures Act. Plaintiffs ask among other things, women’s ʺ″preventative care

the Court to invalidate and the enjoin enforce- and screenings . . . as provided for in compre-

ment of the Coverage Mandate against them. hensive guidelines supported by the Health

Resources and Services Administration[.]ʺ″ § Defendants have moved [*3] to dismiss plain- 300gg-13(a)(4).2 tiffs’ complaint for lack of subject-matter ju-

risdiction pursuant to Rule 12(b)(1) of the Fed- HN3 The ACA’s preventative services cover-

eral Rules of Civil Procedure, arguing that

age requirement does not, however, apply to

plaintiffs lack standing to challenge the Cover- group health plans that are grandfathered.

age Mandate and, alternatively, that the case is See 42 U.S.C. § 18011(a)(2). A group health not ripe for judicial review.1 For the reasons set plan is grandfathered when at least one person

forth below, defendants’ motion is granted in was enrolled in the plan on March 23, 2010

part and denied in part.

and the plan has continually covered at least

[*5] one individual since that date. See 26

BACKGROUND

C.F.R. § 54.9815-1251T(a)(1)(i) (DoT); 29

C.F.R. § 2590.715-1251(a)(1)(i) (DoL); 45

I. The Relevant Statutes and Regulations

C.F.R. § 147.140(a)(1)(i) (HHS). A plan may

The Coverage Mandate is the result of a com-
plex history of Congressional legislation and
agency rulemaking involving the Department
of Labor (ʺ″DoLʺ″), the Department of the Treasury (ʺ″DoTʺ″), and the Department of Health and Human Services (ʺ″HHSʺ″) (collectively, the ʺ″Departmentsʺ″).

lose its grandfathered status, however, if, when compared to the terms of the plan as of March 23, 2010, it eliminates benefits, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly decreases an employer’s contribution rate, or imposes or lowers an annual limit on the dollar value of

HN2 In March 2010, Congress enacted the ACA as well as the Health Care and Education Reconciliation Act. These acts established a number of requirements relating to ʺ″group health

benefits. See 26 C.F.R. § 54.98151251T(g)(1) (DoT); 29 C.F.R. § 2590.7151251(g)(1) (DoL); 45 C.F.R. § 147.140(g)(1) (HHS).

plans,ʺ″ a term which encompasses employer plans that provide health care coverage to em- The Departments began issuing regulations

ployees, regardless of whether the plans

implementing the ACA in phases. On July 19,

[*4] are insured or self-insured. See 42 U.S.C. 2010, they announced that HHS was develop-

§ 300gg-91(a)(1); Interim Final Rules for

ing the HRSA guidelines and expected to is-

Group Health Plans and Health Insurance Issu- sue them by August 1, 2011. See Interim Final

ers Relating to Coverage of Preventative Ser- Rules, 75 Fed. Reg. at 41,728. Since there

vices Under the Patient Protection and Afford- were no existing HRSA guidelines concerning

able Care Act, 75 Fed. Reg. 41,726, 41,727

preventative care and screenings for women at

1 In addition to the parties’ briefing on this motion, the Court has received an amicus brief filed by the American Center for Law & Justice and 79 members of the U.S. Congress in support of plaintiffs. 2 The Health Resources and Services Administration (ʺ″HRSAʺ″) is an agency within HHS.
Page 2 of 22

2012 U.S. Dist. LEXIS 172695, *5

the time of the Interim Final Rules, HHS com-

6033(a)(3)(A)(i) or (iii) of the Inter-

missioned the Institute of Medicine (ʺ″IOMʺ″), a Congressionally-funded body, with ʺ″review-

nal Revenue Code of 1986, as amended.3

[ing] what preventative services are neces-

sary for women’s health and [*6] well-beingʺ″ 45 C.F.R. § 147.130(a)(1)(iv)(B)

and recommending comprehensive guide-

(HHS). See also 29 C.F.R.§ 2590.715-

lines, as called for by the ACA. On July 19,

2713(a)(1)(iv) (DoL). HRSA exercised its

2011, IOM published a report recommending the discretion under the amended Interim Fi-

inclusion of certain preventative medical ser-

nal Rules and exempted the religious em-

vices in HRSA’s guidelines. Among other

ployers who satisfy these criteria from

things, IOM recommended that group health

the requirement of covering contraceptive

plans be required to cover ʺ″the full range of Food services. See Group Health Plans and

and Drug Administration [ʺ″FDAʺ″]-approved

Health Insurance Issuers Relating to Cov-

contraceptive methods, sterilization procedures, erage of Preventative Services Under

and patient education and counseling for

the Patient Protection and Affordable Care

women with reproductive capacity.ʺ″ FDA-

Act, 77 Fed. Reg. 8,725, 8,726 (Feb. 15,

approved contraceptive methods encompass

2012).

oral conceptive pills, diaphragms, intrauterine

devices, and emergency contraceptives, which, The Departments received over 200,000 re-

according to plaintiffs, can cause abortions.

sponses to their request for comments on the

amended Interim Final Rules. [*8] Many of the

HRSA adopted IOM’s recommendations on Au- comments were submitted by religiously-

gust 1, 2011. Two days later, HN4 the In-

affiliated institutions and asserted that the reli-

terim Final Rules were amended to ʺ″provide

gious employer exemption was too narrow

HRSA additional discretion to exempt certain re- and that the limited scope of the exemption

ligious employers from the [HRSA] Guide-

raised religious liberty concerns. Id. at 8,727.

lines where contraceptive services are con-

On February 15, 2012, the Departments final-

cerned.ʺ″ 76 Fed. Reg. 46,263 (Aug. 3, 2011). See ized the amended Interim Final Rules with-

also 45 C.F.R. § 147.130(a)(1)(iv)(A). In or-

out making any changes to the criteria used to

der to qualify for the religious employer exemp- determine whether an organization qualified

tion, an organization must meet all of the fol- for the religious employer exemption. Id. These

lowing criteria:

finalized amended rules are the operative regu-

lations at issue in this suit and, together with

(1) The inculcation of religious values is the purpose of the organization.
(2) The organization [*7] primarily

the HRSA guidelines, constitute the Coverage Mandate. See 29 C.F.R.§ 2590.7152713(a)(1)(iv) (DoL); 45 C.F.R. § 147.130(a)(1)(iv)(HHS).

employs persons who share the reli-

HN6 At the same time that they finalized the In-

gious tents of the organization.

terim Final Rules, however, the Departments

(3) The organization serves primarily persons who share the religious tenets of the organization.

announced a ʺ″temporary enforcement safe harborʺ″ period during which they planned ʺ″to develop and propose changes to these final regu-
lations that would meet two goals — providing

(4) The organization is a nonprofit or-

contraceptive coverage without cost-sharing to

ganization as described in section

individuals who want it and accommodating

6033(a)(1) and section

non-exempted, non-profit organizations’ reli-

3 HN5 These sections of the Internal Revenue Code apply to ʺ″churches, their integrated auxiliaries, and conventions or associations of churches,ʺ″ as well as ʺ″the exclusively religious activities of any religious order.ʺ″ 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii).
Page 3 of 22

2012 U.S. Dist. LEXIS 172695, *8

gious objections to covering contraceptive ser- zations while, at the same time, offering contra-

vices[.]ʺ″ 77 Fed. Reg. at 8,727. Without the

ceptive coverage directly to plan participants

safe harbor, non-grandfathered [*9] plans would without charging either the participants or the or-

be required to comply with the Coverage Man- ganization. Id. at 16,505. Although the Depart-

date for plan years beginning on or after Au-

ments have stated an intent to finalize

gust 1, 2012. The safe harbor extended this date, amended regulations so that they are effective

by a year, to plan years beginning on or after prior to the end of the [*11] safe harbor, id. at

August 1, 2013, during which time the Depart- 16,503, the Coverage Mandate is the currently

ments agreed not to take any enforcement ac- -operative law and the ANPRM does not change

tion against an employer or group health plan that.

that complies with the conditions of the safe harbor. See HHS, Guidance on Temporary Enforcement Safe Harbor, at 3 (Aug. 15, 2012), available at http://cciio.cms.gov/resources/files/ prev-services-guidance-08152012.pdf (last visited Dec. 3, 2012). HN7 In order to comply with the terms of the safe harbor, the organization must (1) be organized and operate as a nonprofit entity, (2) have ʺ″consistently not provided all or the same subset of contraceptive coverage otherwise required at any pointʺ″ from February 10, 2012 onward because of the organization’s religious beliefs, (3) provide notice to participants that some or all contraceptive services will not be covered for the first plan year beginning on or after August 1, 2012, and (4) provide a certification that it satisfies

Indeed, HN8 failure to comply with the Coverage Mandate may result in substantial penalties. Under the Internal Revenue Code, large employers who fail to offer ʺ″full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored planʺ″ can be assessed an annual fine of $2,000 per full-time employee. 26 U.S.C. § 4980H(a), (c)(1). An additional tax of $100 per employee per day may be imposed for ʺ″any failure of a group health planʺ″ to provide required coverage. 26 U.S.C. § 4980D(b). See also 42 U.S.C. § 300gg-22(b)(2)(C)(i) (providing for penalties of up to $100 per person per day for failures to satisfy coverage requirements).

these criteria. Consistent with their announced plan ʺ″to de-

II. The Plaintiffs

velop and propose changesʺ″ to the [*10] Interim Final Rules, on March 21, 2012, the De-
partments filed an advance notice of proposed

The five plaintiffs are all entities affiliated with the Roman Catholic Church. In their complaint, they allege that the Coverage Mandate

rulemaking (ʺ″ANPRMʺ″) in the Federal Regis- places them in a position where they are forced ter concerning possible means of accommodat- to either violate the tenets of their religious faith

ing religious organizations’ objections to the or pay substantial penalties for adhering to their Coverage Mandate. See Certain Preventative beliefs. In particular, if plaintiffs want to avoid Services under the Affordable Care Act, 77 Fed. the penalties for non-compliance

Reg. 16,501 (Mar. 21, 2012). Specifically, the

[*12] with the Coverage Mandate, they must ei-

ANPRM ʺ″presents questions and ideasʺ″ and pro- ther facilitate and subsidize activity, namely

vides an ʺ″opportunity for any interested stake- the provision of contraceptives, that their be-

holders to provide advice and input into the

liefs forbid or curtail their operations and min-

policy development relating to the accommoda- istries in a way that is also inconsistent with

tion to be made with respect to nonexempted, non-profit religious organizations

their faith.

with religious objections to contraceptive cover- A. The Archdiocese age.ʺ″ Id. at 16,503. One possible accommoda-

tion that the Departments ʺ″intend to proposeʺ″ is The Roman Catholic Archdiocese of New York

to require health insurance issuers to provide

(the ʺ″Archdiocese) is a non-profit organiza-

health insurance coverage that excludes contra- tion that encompasses 370 parishes located in

ceptive services to objecting religious organi- the New York area. It administers numerous

Page 4 of 22

2012 U.S. Dist. LEXIS 172695, *12

charitable and educational programs, which, in the Coverage Mandate, (2) communicate with

line with Catholic teachings, are not aimed

plan participants and third-party vendors about

solely at Catholics, but are meant to benefit the any plan changes, and (3) update its plan docu-

broader community. The Archdiocese, its par- ments. While making even small changes to its

ishes, and its institutions employ nearly 10,000 plan requires the Archdiocese to begin prepar-

people, almost 8,000 of whom are lay

ing at least six months in advance, the Archdio-

people. The Archdiocese does not know how cese claims that preparing for the Coverage

many of its employees are Catholic.

Mandate requires additional lead time because it

The Archdiocese operates a self-insured health

forces the Archdiocese to ʺ″decide between breaking the law and making significant,

plan, underwriting its employees’ medical

likely revolutionary, changes to its employee

costs. Its health plan and pharmaceutical coverage are administered by third parties. The

coverage.ʺ″

plan year for the Archdiocese’s plan begins on Further, failing to comply with the Coverage

January 1. Consistent with Catholic teaching, Mandate could cause the Archdiocese to incur

the plan currently does not cover abortifa- penalties of up to $200 million per year. As a re-

cients, sterilization, or contraception.4 Nearly

sult, the Archdiocese has already begun bud-

9,000 people, both Catholic and non-Catholic, geting and preparing for the Coverage Man-

are covered [*13] under the Archdiocese’s date. It has expended resources to comply with

health plan. The Archdiocese does not believe the safe harbor as well as to review the Cov-

that its plan is eligible for grandfathered status erage Mandate, the religious employer exemp-

under the ACA because the plan significantly tion, and the likely impact on the Archdio-

increased the 10% employee contribution re- cese. The ANPRM does not alleviate this

quirement and also increased co-payment re-

situation because, even if the [*15] current Cov-

quirements for higher-earning employees. Since erage Mandate is eventually changed, it will

the Archdiocese employs and serves a number not provide the Archdiocese with enough time

of non-Catholics, the Archdiocese is uncertain of to implement changes to its plan. With regard to

whether it will qualify for the current reli-

its ability to satisfy the current religious em-

gious employer exemption from the Coverage ployer exemption, the Archdiocese claims that

Mandate. However, the Archdiocese claims to it will either have to curtail employing and pro-

fall within the scope of the one-year safe har- viding services to non-Catholics, in violation

bor, meaning that, under the current regula- of its beliefs, or undertake an onerous investiga-

tions, the Coverage Mandate will become ap- tion of the religious beliefs of those whom it

plicable to it for the plan year beginning January employs and serves.

1, 2014.

The Archdiocese argues that once the Cover-

B. ArchCare

age Mandate goes into effect, it will either have Catholic Health Care System and its affiliates,

to provide coverage for services in violation

the Continuing Care Community of the Archdio-

of its sincerely-held religious beliefs or it will cese of New York (collectively, ʺ″ArchCareʺ″),

be exposed to significant fines for either discon- are non-profit organizations that provide faith-

tinuing health coverage for its employees or

based health care to the poor and disadvan-

continuing to provide coverage without the taged, including elderly and disabled individu-

[*14] objectionable services. The Archdiocese als, consistent with Catholic values. ArchCare

claims that it is currently being injured, even operates a self-insured health plan for its em-

before the Coverage Mandate goes into effect, ployees, underwriting the plan while contract-

because it needs to (1) begin budgeting for plan ing with third parties for administration of the

changes that will need to occur because of

plan. The plan covers approximately 2,500

4 Although contraceptives are barred under the Archdiocese’s plan, the medication may be covered when provided for medically necessary, non-contraceptive purposes.
Page 5 of 22

2012 U.S. Dist. LEXIS 172695, *15

people and ArchCare does not know how many those covered are Catholic. Like the Archdiocese’s plan, ArchCare’s plan does not cover abortifacients, sterilization, or contraception in accordance with Catholic moral teaching. ArchCare claims [*16] that it does not qualify for the religious employer exemption and that, because it recently increased employee cost-sharing requirements by more than 5%, its plan is not grandfathered. But since it claims to fall within the safe harbor, the Coverage Mandate will become applicable to ArchCare for the plan year beginning January 1, 2014.

ties, underwriting its employees’ medical costs. The plan does not cover abortifacients, sterilization, or contraception. The Diocese claims that its plan will not be grandfathered under the ACA due to recently increased cost-sharing requirements. Catholic Charities claims that it does not qualify for the religious employer exemption to the Coverage Mandate, while the Diocese is uncertain as to whether it will qualify for the exemption. But both the Diocese and Catholic Charities argue that they fall within the scope of the safe harbor, meaning that the Coverage Mandate will apply to them for the plan year [*18] beginning January 1, 2014.

ArchCare’s explanation of how it is currently be- The Diocese and Catholic Charities assert cur-

ing injured by the Coverage Mandate paral-

rent injuries resulting from the Coverage Man-

lels that of the Archdiocese. ArchCare claims date that are similar to those claimed by the

that it is already budgeting for fines of up to $40 Archdiocese and ArchCare except that the

million per year and otherwise preparing for

Diocese claims it requires at least nine months

possible changes to its plan. Additionally, Arch- of lead time to make changes to its health

Care claims that the ʺ″specter of significant

plan. Further, the Diocese claims that it faces

finesʺ″ has forced ArchCare to divert funds that it up to $67 million in penalties a year for failure

would otherwise use to expand its health-

to comply with the Coverage Mandate, while

care operations.

Catholic Charities’ exposure is over $9 million

a year. Since both the Diocese and Catholic

C. The Diocese and Catholic Charities

Charities operate according to ʺ″break-even bud-

The Roman Catholic Diocese of Rockville Centre, New York (the ʺ″Dioceseʺ″) is a non-profit

gets,ʺ″ the possibility of fines require these plaintiffs to set aside funds which, conse-
quently, cannot be used to fund other initia-

organization that encompasses 134 parishes in Nassau and Suffolk counties. The Diocese is responsible for numerous charitable and educa-

tives or services. Indeed, these initiatives and existing services may need to be cut.

tional programs for the benefit of Catholics

D. CHSLI

and non-Catholics alike. One such program is

Catholic Charities of the Diocese of Rockville Catholic Health Services of Long Island

Centre (ʺ″Catholic Charitiesʺ″), an [*17] orga- (ʺ″CHSLIʺ″) is a non-profit organization that over-

nization that provides a variety of social ser- sees Catholic health care organizations within

vices to both Catholics and non-Catholics. To- the Diocese, including six hospitals, three nurs-

gether with its hospitals, schools, parishes and ing homes, and a hospice service. Neither

other associated institutions, the Diocese em- CHSLI nor its member institutions condition

ploys nearly 20,000 people (of which over 600 employment or receipt of medical services on

are employed by Catholic Charities). Neither being Catholic.

the Diocese nor Catholic Charities know how

many of these employees are not Catholic.

CHSLI operates a self-insured health plan for

its employees and employees [*19] of its mem-

Employees of both the Diocese and Catholic ber institutions, underwriting the plan while

Charities receive health care coverage through the contracting with third parties for administration

Diocese’s health plan, which covers over 3,000 of the plan. The plan covers approximately

people. The Diocese operates a self-

25,000 people. Consistent with Catholic teach-

insured health plan, administered by third par- ing, CHSLI’s plan does not cover abortifa-

Page 6 of 22

2012 U.S. Dist. LEXIS 172695, *19

cients, sterilization, or contraception. Because concessions to NYSNA. Further, CHSLI was

CHSLI made certain plan design changes, in- considering moving nurses at another hospital

cluding increasing certain copayment require- from its own self-insured plan to [*21] the

ments beyond allowable limits, its plan does not NYSNA plan because doing so would save

enjoy grandfathered status. Although they are CHSLI approximately $1 million. But because

non-profit organizations, CHSLI and its mem- NYSNA must comply with the Coverage

ber institutions are not covered by the rel-

Mandate, CHSLI has abandoned its plan to tran-

evant Internal Revenue Code provisions so as to sition coverage and must forgo the cost sav-

be eligible for the religious employer excep- ings. CHSLI suspects that other unions will take

tion. But because CHSLI claims to fall

similar positions.

within the scope of the safe harbor, the Cover-

age Mandate will apply to it for the plan

DISCUSSION

year beginning January 1, 2014.

The gravamen of defendants’ motion to dis-

Like the other plaintiffs, CHSLI points to cur- miss is that this Court lacks the authority to ad-

rent harms relating to its preparations for possi- judicate plaintiffs’ claims for two reasons:

bly changing its plan, budgeting for possible

first, plaintiffs do not have standing to assert

fines, and diverting funds from capital plans. their claims because the Coverage Mandate is

CHSLI claims to require a full year of lead time not causing plaintiffs an imminent injury; and,

to make changes to its health plan and that it second, plaintiffs’ case is not ripe because of

could face up to $400 million per year in pos- the proposed changes to the Coverage Man-

sible exposure to fines. CHSLI argues that

date. In considering defendants’ motion, the

these fines would imperil its [*20] ability to Court is not writing on a blank slate. Law-

continue to operate and that it cannot, pursuant suits challenging the Coverage Mandate have

to its legal obligations as a health care pro-

been brought in numerous district courts and six

vider, restrict its services to Catholics so as to courts have already explicitly addressed the ju-

fall within the religious employer exemption.

risdictional arguments that defendants ad-

vance here. Moreover, CHSLI claims to face unique harms

because of its dealings with employee

First, in Nebraska v. Dep’t of Health & Human

unions, specifically the New York State Nurses Servs., F. Supp. 2d , 2012 U.S. Dist.

Association (ʺ″NYSNAʺ″). CHSLI negotiated

LEXIS 104419, 2012 WL 2913402 (D. Neb.

with NYSNA so that the nurses at one CHSLI in- July 17, 2012), a group of states, Catholic insti-

stitution, St. Joseph Hospital, would receive

tutions, and individuals brought suit challeng-

health coverage through the NYSNA plan and so ing the Coverage Mandate. With regard to the in-

that the coverage they received through the

stitutional and individual [*22] plaintiffs, the

NYSNA plan would be consistent with Catho- court found that those plaintiffs did not ad-

lic teachings on abortion, contraception, and equately allege that their health plans were

sterilization. Each pay period, CHSLI trans-

not grandfathered and, thus, failed to plead that

fers funds to the NYSNA plan to provide ben- they were subject to the Coverage Mandate.

efits for these nurses. NYSNA informed

As a result, the court concluded that they lacked

CHSLI that, because of the Coverage Mandate, it standing. 2012 U.S. Dist. LEXIS 104419, can no longer administer its plan in a man- [WL] at * 12-15.5 Although the Nebraska court

ner that is consistent with Catholic teachings. did not need to reach the issue, it also con-

CHSLI is evaluating whether to bring the

cluded that even if plaintiffs had standing, their

nurses under CHSLI’s self-insured plan. Doing claims were not ripe because the Departments

so will likely increase the costs of CHSLI’s

were still ʺ″modify[ing] their positionsʺ″ and

health care costs and may require CHSLI to pay plaintiffs did not face imminent or inevitable

5 The Nebraska court also dismissed the states’ claims on constitutional and prudential standing grounds, but these holdings are not pertinent to the instant motion.
Page 7 of 22

2012 U.S. Dist. LEXIS 172695, *22

hardship ʺ″in light of the temporary enforce- request for a preliminary injunction, reasoning

ment safe harbor and the ANPRM.ʺ″ 2012 U.S. that the organization lacked standing to chal-

Dist. LEXIS 104419, [WL] at *22-23.

lenge [*24] because its injury was ʺ″conjec-

tural.ʺ″ 2012 U.S. Dist. LEXIS 156144, [WL] at

In Belmont Abbey Coll. v. Sebelius, F.

*5. However, the Legatus court granted a pre-

Supp. 2d , 2012 U.S. Dist. LEXIS 99391,

liminary injunction in favor of two other plain-

2012 WL 2914417 (D.D.C. July 18, 2012), de- tiffs, an individual Catholic business owner

fendants sought to dismiss a challenge to the and his business, who were not eligible for the

Coverage Mandate brought by a Catholic col- temporary enforcement safe harbor. 2012

lege on standing and ripeness grounds. Unlike in U.S. Dist. LEXIS 156144, [WL] at *15.6

Nebraska, plaintiff in Belmont Abbey had suf-

ficiently alleged that its health plan was ineli- In Catholic Diocese of Nashville v. Sebelius, No.

gible for grandfathered status. 2012 U.S. Dist. 12-cv-0934, 2012 U.S. Dist. LEXIS 166152, 2012

LEXIS 9939, [WL] at *7. Additionally, the

WL 5879796 (M.D. Tenn. Nov. 21,

Belmont Abbey court concluded [*23] that the 2012), the court also followed Nebraska, Bel-

temporary enforcement safe harbor did not ren- mont Abbey, and Wheaton Coll. in dismissing

der plaintiff’s injury ʺ″too remoteʺ″ to destroy plaintiffs’ claims. The Nashville court ʺ″ex-

standing. 2012 U.S. Dist. LEXIS 9939, [WL] presslyʺ″ found that ʺ″the preventative services

at *9. The court nonetheless held that plaintiff [*25] regulations, in their current form, will not

lacked standing, reasoning that ʺ″[b]ecause an be enforced against Plaintiffs.ʺ″ 2012 U.S.

amendment to the final rule that may vitiate the Dist. LEXIS 166152, [WL] at * 3. Further, the

threatened injury is not only promised but un- court echoed Belmont Abbey in concluding

derway, the injuries alleged by plaintiff are cer- that, because of the ANPRM, ʺ″the injuries al-

tainly not impending.ʺ″ 2012 U.S. Dist.

leged by Plaintiffs are not ’certainly impend-

LEXIS 9939, [WL] at * 10 (internal quotation ing.ʺ″’ 2012 U.S. Dist. LEXIS 166152, [WL]

marks omitted). Additionally, the court ruled

at *4. Although it did not need to reach the is-

that the case was not ripe in part because defen- sue, the Nashville court also concluded that

dants’ position was ʺ″not sufficiently final to

plaintiffs’ claims were not ripe. 2012 U.S. Dist.

render the regulation ’fit’ for judicial review. LEXIS 166152, [WL] at *5. Finally, in Zubik

2012 U.S. Dist. LEXIS 9939, [WL] at * 13.

v. Sebelius, No. 12-cv-00676, 2012 U.S. Dist.

LEXIS 167737, 2012 WL 5932977, at *1

In Wheaton Coll. v. Sebelius, F. Supp. 2d , (W.D. Pa. Nov. 27, 2012), the court also fol-

2012 U.S. Dist. LEXIS 120187, 2012 WL

lowed Belmont Abbey and held that in light of

3637162 (D.D.C. Aug. 24, 2012), the court simi- the Departments’ ʺ″commitment not to en-

larly dismissed a Catholic college’s claims for force the challenged regulations against Plain-

lack of standing and lack of ripeness, reason- tiffs while accommodations are under consider-

ing that the application of the Coverage Man- ation, and in any event no sooner than

date to plaintiff remained ʺ″hypothetical.ʺ″ 2012 January 2014, Plaintiffs’ claims are not ripe for

U.S. Dist. LEXIS 120187, [WL] at *9. Like-

judicial review and that Plaintiffs have not al-

wise in Legatus v. Sebelius, F. Supp. 2d , leged an injury in fact under existing law suffi-

2012 U.S. Dist. LEXIS 156144, 2012 WL

cient to establish standing.ʺ″

5359630 (E.D. Mich. Oct. 31, 2012), the court

followed Belmont Abbey and Wheaton Coll. I. The 12(b)(1) Standard and denied a Catholic non-profit organization’s

6 Indeed, two other courts have granted preliminary injunctions in favor of plaintiffs who are not eligible for the temporary enforcement safe harbor and, consequently, must comply with the Coverage Mandate for plan years beginning on or after August 1, 2012. Tyndale House Publishers, Inc. v. Sebelius, F. Supp. 2d , 2012 U.S. Dist. LEXIS 163965, 2012 WL 5817323 (D.D.C. Nov. 16, 2012); Newland v. Sebelius, F. Supp. 2d , 2012 U.S. Dist. LEXIS 104835, 2012 WL 3069154 (D. Colo. July 27, 2012). But see O’Brien v. Dep’t of Health and Human Servs., F. Supp. 2d , 2012 U.S. Dist. LEXIS 140097, 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012) (dismissing a secular, for-profit company’s claims for declaratory and injunctive relief).
Page 8 of 22

2012 U.S. Dist. LEXIS 172695, *25

HN9 ʺ″The burden of demonstrating subject mat- che LLP, 549 F.3d 100, 106 (2d Cir. 2008)).7

ter-jurisdiction lies with the party asserting

But, in a factual challenge, ʺ″where evidence rel-

it.ʺ″ MLC Fishing, Inc. v. Velez, 667 F.3d 140, evant to the jurisdictional question is before

141 (2d Cir. 2011) (quoting Mathirampuzha v. the court, the district court . . . may refer to [that]

Potter, 548 F.3d 70, 85 (2d Cir. 2008). ʺ″In a

evidence.ʺ″ Robinson, 269 F.3d at 140 (altera-

motion to dismiss pursuant to [Rule] 12(b)(1), tions in original, internal quotation marks omit-

the defendant may challenge [*26] either the le- ted). See also Engel v. Scully & Scully, Inc.,

gal or factual sufficiency of the plaintiff’s as- 279 F.R.D. 117, 123 (S.D.N.Y. 2011) (ʺ″When de-

sertion of jurisdiction, or both.ʺ″ Robinson v. ciding a motion to dismiss pursuant to Rule

Gov’t of Malaysia, 269 F.3d 133, 140 (2d

12(b)(1) . . . a district court ’may resolve dis-

Cir. 2001). As the court noted in Doyle v. Mid- puted factual issues by reference to evidence

land Credit Mgmt., No. 11-cv-5571, 2012

outside the pleadings, including affidavits.ʺ″’

U.S. Dist. LEXIS 152241, 2012 WL 5210596, (quoting State Emps. Bargaining Agent Coal. v.

at *1 (E.D.N.Y. Oct. 23, 2012), ʺ″[w]hen evalu- Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007)).

ating a motion to dismiss under Rule 12(b)(1), the court must distinguish between two types of challenges.ʺ″ On one hand, facial challenges contest ʺ″the sufficiency of the jurisdictional facts alleged, not the facts themselves.ʺ″ Poodry v. Tonawanda Bank of Senenca Indians, 85 F.3d 874, 887 n.15 (2d Cir. 1996). On the other hand, factual challenges ʺ″dispute[] the accuracy of the facts alleged in the complaint or otherwise suggest that the district court in fact lacks subject matter jurisdiction.ʺ″ Doyle, 2012 U.S. Dist. LEXIS 152241, 2012 WL 5210596, at *1 (citing Robinson, 269 F.3d at 140). See also Guadagno v. Wallack Adler Levithan Assocs., 932 F. Supp. 94, 95 (S.D.N.Y. 1996) (contrasting a facial challenge, which is ʺ″based on the pleadings,ʺ″ with a factual challenge, which is ʺ″based on extrinsic evidence.ʺ″).

HN12 When deciding a factual challenge to subject matter jurisdiction, ʺ″the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts.ʺ″ Guadagno, 932 F. Supp. at 95. See also In re Rhodia S.A. Sec. Litig., 531 F. Supp. 2d 527, 537 (S.D.N.Y. 2007)
[*29] (ʺ″the burden of proving jurisdiction is on the party asserting it . . . to make a prima facie showing of jurisdiction.ʺ″) (quoting Robinson v. Overseas Military Sales Com., 21 F.3d 502, 507 (2d Cir. 1994)). Whereas a court’s
task on a facial challenge is to assess the adequacy of a plaintiff’s allegations of jurisdiction, factual challenges require a court to assess the adequacy of a plaintiff’s showing of jurisdiction and ʺ″that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.ʺ″ See Shipping

HN10 When deciding a facial challenge to ju- Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131

risdiction, the court ʺ″accept[s] as true all ma- (2d Cir. 1998).

terial allegations of the complaint, [*27] and

must construe the complaint in favor of the

Here, defendants argue that because they ʺ″chal-

complaining party.ʺ″ Carver v. City of New York, 621 F.3d 221, 225 (2d Cir. 2010) (quoting

lenge jurisdiction on the face of the Complaint, the Complaint must plead sufficient facts

W.R. Huff Asset Mgmt. Co. v. Deloitte & Tou- to establish that jurisdiction exists.ʺ″ In other

words, defendants purport to bring a facial chal-

7 HN11 There is some inconsistency in the authorities concerning whether, on a facial challenge to subject matter jurisdiction, the court should construe the allegations in the complaint in a plaintiff’s favor. Contrary to Carver, another line of cases in the Second Circuit provides that, in deciding a motion for lack of subject matter jurisdiction, courts ʺ″are not [*28] to draw inferences from the complaint favorable to plaintiffs.ʺ″ See J.S. ex rel N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). See In re Park Ave. Radiologists, P.C., 450 B.R. 461, 467 n.6 (Bankr. S.D.N.Y. 2011) (observing the conflicting lines of Second Circuit cases). Because Carver addresses a standing-based challenge to subject matter jurisdiction, the issue at the core of this motion, and there is precedent specific to standing that allows ʺ″each element . . . [to] be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation[,] Carver, 621 F.3d at 225 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)), the Court follows Carver. This distinction is ultimately not material for this motion, though, because the Court engages in a factual inquiry, rather than a facial one.
Page 9 of 22

2012 U.S. Dist. LEXIS 172695, *29

lenge to plaintiffs’ claims. In response to defen- thetical.ʺ″ Connecticut v. Physicians Health

dants’ motion, plaintiffs supply several affida- Servs. of Conn. Inc., 287 F.3d 110, 116 (2d

vits that support and amplify the factual

Cir. 2002) (quoting Lujan, 504 U.S. at 560, 112

allegations in the complaint on which plain-

S. Ct. at 2136). ʺ″A threatened injury must be

tiffs’ base their claim of subject matter jurisdic- ’certainly impending’ to constitute injury in

tion. In light of this extrinsic evidence, the

fact.ʺ″ Whitmore v. Arkansas, 495 U.S. 149, 158,

Court has conducted a factual analysis of the suf- 110 S. Ct. 1717, 1724-25, 109 L. Ed. 2d 135

ficiency of plaintiffs’ showing of [*30] sub-

(1990).

ject matter jurisdiction. Therefore, even though some of the arguments advanced by the parties, as described below, speak in terms of plaintiffs’ allegations, the Court has considered entire factual record before it, which is largely undisputed.

HN15 The Second Circuit has commented that ʺ″[i]njury in fact is a low threshold, which we have held need not be capable of sustaining a valid cause of action, but may simply be the fear or anxiety of future harm.ʺ″ Ross v. Bank of America, N.A., 524 F.3d 217, 222 (2d Cir.

II. Standing

2008) (internal quotation marks omitted). Injury in fact may be based on economic or non-

The issue at the heart of defendants’ motion is economic interests. A plaintiff ʺ″may

whether plaintiffs have standing under Ar-

[*32] have a spiritual stake in First Amend-

ticle III of the Constitution. HN13 ʺ″In its con- ment values sufficient to give standing to raise

stitutional dimension, standing imports justi-

issues concerning the Establishment Clause

ciability: whether the plaintiff has made out a and the Free Exercise Clause.ʺ″ Ass’n of Data

’case or controversy’ between himself and the Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

defendant within the meaning of [Article III]. 150, 154, 90 S. Ct. 827, 830, 25 L. Ed. 2d

This is the threshold question in every federal 184 (1970). ʺ″A plaintiff bringing a pre-

case, determining the power of the court to en- enforcement facial challenge against a statute

tertain the suit.ʺ″ Warth v. Seldin, 422 U.S. 490, need not demonstrate to a certainty that it will be

498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343

prosecuted under the statute to show injury,

(1975). ʺ″If plaintiffs lack Article III standing, a but only that it has ’an actual and well-

court has no subject matter jurisdiction to

founded fear that the law will be enforced

hear their claims.ʺ″ Cent. States Se. & Sw. Ar- against’ it.ʺ″ Vermont Right to Life Comm., Inc.

eas Health & Welfare Fund v. Merck-Medco v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000)

Managed Care, L.L.C., 433 F.3d 181, 198

(quoting Virginia v. Am. Booksellers Ass’n, 484

(2d Cir. 2005).

U.S. 383, 393, 108 S. Ct. 636, 643, 98 L. Ed. 2d

HN14 As it is an element of the federal

782 (1988)).

courts’ subject matter jurisdiction, plaintiffs

The parties do not dispute that a favorable judi-

bear the burden of establishing standing. See cial decision would redress plaintiffs’ injuries.

Johnson v. Bryson, 851 F. Supp. 2d 688, 699 Rather, defendants seek to dismiss the com-

(S.D.N.Y. 2012). ʺ″To meet the Article III stand- plaint based on plaintiffs’ supposed failure to

ing [*31] requirement, a plaintiff must have

demonstrate that the Coverage Mandate will

suffered an ’injury in fact’ that is ’distinct and cause them actual or imminent injuries in

palpable’; the injury must be fairly traceable

fact and that any such injuries are fairly trace-

to the challenged action; and the injury must be able to defendants’ actions. Defendants ad-

likely redressable by a favorable decision.ʺ″

vance three principal challenges to plaintiffs’

Denney v. Deutsche Bank AG, 443 F.3d 253, ability to demonstrate standing: First, defen-

263 (2d Cir. 2006) (quoting Lujan, 504 U.S. at dants argue that the Coverage Mandate, as ap-

560-61, 112 S. Ct. at 2136). An injury in fact plied [*33] to plaintiffs, will not cause any

is ʺ″an invasion of a legally protected interest change in practices and, therefore, cannot cause

which is (a) concrete and particularized; and

injury, because certain plaintiffs’ plans are

(b) actual or imminent, not conjectural or hypo- grandfathered and other plaintiffs’ plans al-

Page 10 of 22

2012 U.S. Dist. LEXIS 172695, *33

ready cover contraceptives. Second, defendants and Catholic Charities (which share the same

claim that any harm that plaintiffs may incur plan) represent that they made ʺ″plan design

is too distant temporally to constitute an immi- changes,ʺ″ including an increase in ʺ″cost shar-

nent injury. Third, defendants argue that, as a ing for employees . . . which caused the Plan to

result of the ANPRM, plaintiffs’ injury is only lose its grandfathered status in 2011.ʺ″ Defen-

speculative and, thus, not certainly impend-

dants argue that these affidavit statements are

ing.

still insufficient to establish standing because

an increase in cost-sharing does not necessarily

A. The Coverage Mandate and Plaintiffs’ Prac- prevent a plan from maintaining grandfa-

tices

thered status under 45 C.F.R. § 147.140(g).

1. Grandfathered Status

Defendants’ argument notwithstanding,

HN18 an increase in a percentage [*35] cost-

At the outset, defendants argue that three plain- sharing requirement does cause a plan to

tiffs (Diocese, Catholic Charities, and Arch-

cease being grandfathered under §

Care) fail to ʺ″allege with sufficient particular- 147.140(g)(ii). Since ArchCare enacted a 5% in-

ityʺ″ in the complaint ʺ″that their health plans are crease in its employees’ share, it has suffi-

not grandfathered.ʺ″ Since HN16 the Coverage ciently demonstrated that its plan is not grand-

Mandate does not apply to grandfathered plans, fathered.

see 42 U.S.C. § 18011(a)(2), defendants con-

tend that Diocese, Catholic Charities, and Arch- The Diocese and Catholic Charities present a

Care cannot suffer an injury in fact fairly trace- closer question. The law is clear that HN19 ʺ″a

able to the Coverage Mandate if they are

’naked assertion’ that a plan does not satisfy

exempt from its requirements and do not need to the legal definition of ’grandfathered health

change their current coverage. Defendants plans’ is not sufficientʺ″ to establish standing.

contrast the ʺ″threadbare allegationsʺ″ put forth by Nebraska, 2012 U.S. Dist. LEXIS 104419,

the Diocese, Catholic Charities, and Arch- 2012 WL 2913402, at *12. Therefore, the Court

Care with the Archdiocese’s and CHSLI’s

does not credit the conclusory assertion that

[*34] allegations concerning grandfathering, the Diocese’s and Catholic Charities’ plan is not

which provide that these plaintiffs’ plans are not grandfathered. The only facts that the Diocese

grandfathered because of increases in em-

and Catholic Charities provide to support their

ployee contribution and co-payment requirements.

contention is that the plan made a change to an unspecified employee cost-sharing requirement. But defendants are correct that HN20 all

Since, however, HN17 on a motion to dismiss cost-sharing increases do not cause a plan to

for lack of standing, the Court need not con- lose grandfathered status under § 147.140(g).

fine its inquiry to the allegations in the com- Based on the unadorned reference to a cost-

plaint, see Engel, 279 F.R.D. at 123, the Court sharing increase, the Court simply cannot de-

also looks to the affidavits submitted by plain- termine whether the relevant plan is eligible or

tiffs in support of their briefing on this motion, ineligible for grandfathered status. Therefore,

which provide additional information on their the Court concludes that the Diocese and Catho-

plans. ArchCare represents that its plan is not eli- lic Charities have failed to satisfy their bur-

gible for grandfathered status because ʺ″the em- den [*36] of establishing that the Coverage

ployee cost share increased by more than 5% effective January 1, 2012.ʺ″ The Diocese

Mandate applies to them and their claims are dismissed for lack of standing.8

8 Since the Diocese and Catholic Charities have not established that the Coverage Mandate applies to them at all, they have also failed to demonstrate that they will face any of the harms that arise from the operation of the Coverage Mandate, whether conducting an intrusive inquiry to determine if they fall within the scope of the religious employer exemption or incurring costs to prepare for the Coverage Mandate going into effect. They could, conceivably, argue that they are nonetheless harmed because they cannot make certain changes to their current plan without jeopardizing their grandfathered status. Indeed plaintiffs in other ac-
Page 11 of 22

2012 U.S. Dist. LEXIS 172695, *36

vertisements. Since the statute could not have af-

2. [*37] Plaintiffs’ Existing Contraceptive Cov- fected the Senator’s actions until five years

erage

into the future, the Supreme Court concluded

Defendants also note that two plaintiffs (Archdiocese and ArchCare) fail to state in the complaint whether their current health plans cover

that the ʺ″alleged injury in fact is too remote temporally to satisfy Article III standing.ʺ″ Id. at 226, 124 S. Ct. at 708.

contraceptive services and contend that the

Defendants’ reliance on McConnell is unavail-

Coverage Mandate cannot cause these plain-

ing. HN21 Despite the Supreme Court’s lan-

tiffs an injury in fact if the Archdiocese and guage, it was not simply the temporal distance

ArchCare already cover contraceptive services. between the lawsuit and the future injury

Plaintiffs’ affidavits, however, clarify that nei- that made the injury insufficiently imminent to

ther the Archdiocese nor ArchCare provide con- support standing. Rather, in McConnell, the

traceptive coverage to the extent required by

court ʺ″could not know whether the plaintiffs

the Coverage Mandate. The Archdiocese ex- would even [*39] suffer an injury six years

plains that its ʺ″employee health plan complies later.ʺ″ Thomas More Law Ctr. v. Obama, 651

with Catholic teachings on abortifacients, ster- F.3d 529, 538 (6th Cir. 2011), abrogated on

ilization, and contraceptionʺ″ and that ʺ″abortion other grounds, Nat’l Fed’n of Indep. Bus. v.

and sterilization are not covered.ʺ″ Further,

Sebelius, U.S. , 132 S. Ct. 2566, 183 L. Ed.

ʺ″[c]ontraceptives are also barred under the plan, 2d 450 (2012). As the Sixth Circuit ex-

but may be available for medically necessary, plained, ʺ″[t]he challenged provision would af-

non-contraceptive purposesʺ″ subject to a three- fect the McConnell plaintiffs only if the follow-

step appeal process. ArchCare’s plan simi-

ing things happened in an election six years

larly does not cover abortion or sterilization and later: (1) a challenger ran in the primary or elec-

only covers contraceptives for certain medi-

tion; (2) the plaintiff created an advertisement

cally-necessary, non-contraceptive purposes

mentioning the challenger; (3) the advertise-

subject to an approval procedure. Defendants’ ment did not identify the plaintiff by name;

argument is, therefore, unavailing.

and (4) the broadcasters attempted to charge Mc-

B. The Enforcement Safe Harbor and Imminent Injury

Connell more than their lowest unit rate for
his ads.ʺ″ Id. Indeed, when determining whether an injury is sufficiently imminent for Article

Defendants next argue [*38] that those plaintiffs whose plans are ineligible for grandfathered status have not demonstrated an imminent injury because, in light of the temporary enforcement safe harbor, they are protected from any enforcement actions for failure to comply with the Coverage Mandate until January 1, 2014. According to defendants, this delay before any enforcement actions could be brought renders any injury to plaintiffs too temporally distant to be considered imminent. In support, defendants cite McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491

III standing purposes, courts focus ʺ″on the probability of harm, not its temporal proximity.ʺ″ 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006). See also Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 343 (2d Cir. 2009) (ʺ″In describing imminence, the [ Lujan] Court was not imposing a strict temporal requirement that a future injury occur within a particular time period following the filing of the complaint. Instead, the [*40] Court focused on the certainty of that injury occurring in the future, seeking to ensure that the injury was not too speculative.ʺ″).

(2003). In McConnell, a Senator brought suit

to challenge a statute regulating campaign ad-

tions have made such an argument. See Nebraska, 2012 U.S. Dist. LEXIS 104419, 2012 WL 2913402, at * 12-13. The Diocese and Catholic Charities have not, however, advanced this theory, maintaining instead that they are ineligible for grandfathering. And, in any event, the Diocese and Catholic Charities have not provided sufficient facts to demonstrate that they will suffer a concrete harm even if their plan is considered grandfathered.

Page 12 of 22

2012 U.S. Dist. LEXIS 172695, *40

Here, the temporary enforcement safe harbor Defendants’ central argument is that plaintiffs’

does nothing to reduce the certainty that plain- injuries are not certainly impending because,

tiffs will suffer injury from the Coverage Man- through the ANPRM, the Departments will

date in the future. HN22 All the safe harbor does change the requirements of the Coverage Man-

is postpone the date by which plaintiffs must date before the end of the temporary enforce-

comply with the Coverage Mandate or suffer ment safe harbor in order to accommodate the

penalties. That deadline is looming and certain. interests of religious organizations like plain-

See Reg’l Rail Reorganization Act Cases, 419 tiffs. [*42] In this sense, defendants contend that

U.S. 102, 143, 95 S. Ct. 335, 338, 42 L. Ed. 2d plaintiffs’ injuries are not imminent because it

320, (1974) (ʺ″Where the inevitability of the op- is unlikely that they will come to pass. Further,

eration of a statute against certain individu-

since HN24 the ʺ″underlying purpose of the im-

als is patent, it is irrelevant to the existence of minence requirement is to ensure that the court .

a justiciable controversy that there will be a

. . does not render an advisory opinion in a

time delay before the disputed provisions will case in which no injury would have occurred at

come into effect.ʺ″) For these reasons, the Bel- all[,]ʺ″ Animal Legal Defense Fund, Inc. v.

mont Abbey court concluded that ʺ″the tempo- Espy, 23 F.3d 496, 500, 306 U.S. App. D.C. 188

rary-enforcement safe harbor does not render the (D.C. Cir. 1994) (internal quotation marks

alleged injury too remote to constitute an in-

omitted), the prospect that the ANPRM will

jury[.]ʺ″ 2012 U.S. Dist. LEXIS 99391, 2012 WL prevent any injury from befalling plaintiffs un-

2914417, at *9. This Court agrees.

dermines their standing.

Further, the delay until the Coverage Mandate On the other hand, plaintiffs characterize the

will be enforced against plaintiffs — just over a ANPRM as merely stating the Departments’ in-

year — is short when compared to other cases where standing was established. HN23 Several courts have found that

tention to change the Coverage Mandate. Because the Coverage Mandate remains in effect notwithstanding the ANPRM, plaintiffs still

[*41] found that injuries occurring three, six, or face future injuries stemming from their forced

even thirteen years in the future can be suffi- choice between incurring fines or acting in vio-

ciently imminent for standing purposes. See Thomas More Law Ctr., 651 F.3d at 537 (collecting cases). Indeed, when the minimum cov-

lation of their religious beliefs. Additionally, plaintiffs explain that having to prepare for fines or changes to their employee health cover-

erage provision of the ACA (the ʺ″Individual Mandateʺ″) was being challenged in the courts,

age is presently causing them to incur costs, divert resources, and forgo savings.

the government — including many of the same defendants in this action — conceded that an injury that would not occur for over two years was sufficient for standing. Florida ex rel Attorney Gen. v. Dep’t of Health and Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011), reversed on other grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, U.S. , 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012). Therefore, the Court concludes that the temporary enforcement safe harbor does not prevent plaintiffs from establishing imminent injuries for standing purposes.

Courts have been receptive to defendants’ argument, although they sometimes address it in the context of ripeness rather [*43] than standing. The Belmont Abbey court agreed with the Departments that any injury was ʺ″too speculative to confer standing given the government’s clear intention to amend the regulation before the safe harbor lapses.ʺ″ 2012 U.S. Dist. LEXIS 99391, 2012 WL 2914417, at *9. See also Zubik, 2012 U.S. Dist. LEXIS 167737, 2012 WL 5932977, at *11 (ʺ″the Court must agree with Defendants that any injury from enforcement of the preventative care regulations

C. The ANPRM and Certainly Impending In-

after the safe harbor expires is purely speculative, as Defendants have formally declared

jury

their intention to amend the preventative care

regulations before that time in order to accom-

Page 13 of 22

2012 U.S. Dist. LEXIS 172695, *43

modate the concerns of religious organiza- The key issue, therefore, is whether, despite

tionsʺ″); Nashville, 2012 U.S. Dist. LEXIS

the fact that plaintiffs are facing current and fu-

166152, 2012 WL 5879796, at *3 (ʺ″the Court ex- ture harms in connection with the Coverage

pressly finds . . . that the preventive services Mandate, constitutional standing is lacking be-

regulations, in their current form, will not be en- cause defendants have committed to amend-

forced against Plaintiffsʺ″); Legatus, 2012 U.S. ing the Coverage Mandate through the AN-

Dist. LEXIS 156144, 2012 WL 5359630, at *5 PRM. Indeed, the applicability of the ANPRM

(agreeing with other cases that because of the explains the split in the cases addressing the

temporary enforcement safe harbor and the AN- Coverage Mandate that have been decided thus

PRM, plaintiffs ʺ″injury is conjecturalʺ″);

far. HN26 Courts have issued preliminary in-

Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, junctions in favor of for-profit plaintiffs chal-

2012 WL 3637162 at *8 (noting that ʺ″the regu- lenging the Coverage Mandate because the

lations Wheaton challenges are being

ANPRM and the temporary enforcement safe

amended precisely in order to accommodate

harbor were not at issue. See Tyndale House

Wheaton’s concernsʺ″); Nebraska, 2012 U.S. Publishers, 2012 U.S. Dist. LEXIS 163965,

Dist. LEXIS 104419, 2012 WL 2913402, at *23 2012 WL 5817323; Legatus, 2012 U.S. Dist.

(ʺ″this forced choice is neither imminent

LEXIS 156144, 2012 WL 5359630, at *15;

[*44] nor inevitable in light of the temporary en- Newland, 2012 U.S. Dist. LEXIS 104835, 2012

forcement safe harbor and the ANPRMʺ″).

WL 3069154. But where the ANPRM was ap-

plicable, courts have found standing to be

Defendants do not dispute that plaintiffs are presently incurring costs in connection with their preparation for the Coverage Mandate going into effect. Instead, defendants argue that because the ANPRM means that the plaintiffs are unlikely to face injury from the Coverage Mandate in the future, plaintiffs should not be able to ʺ″transform the speculative possibility of fu-

lacking. See Zubik, 2012 U.S. Dist. LEXIS 167737, 2012 WL 5932977; Nashville, 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796; Legatus, 2012 U.S. Dist. LEXIS 156144, 2012 WL 5359630, at *5; Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, 2012 WL 3637162; Belmont Abbey, 2012 U.S. Dist. LEXIS 99391, 2012 WL 2914417.

ture injury into a concrete current injury for standing purposes by asserting that they have to plan now for their future needs.ʺ″ Courts have also been receptive to this argument. Belmont Abbey, 2012 U.S. Dist. LEXIS 99391, 2012 WL 2914417, at * 14 (HN25 ʺ″Costs stemming from Plaintiff’s desire to prepare for contingencies are not sufficient, however, to constitute hardship . . . particularly when the agency’s promises and actions suggest the situation Plaintiff fears may not occur.ʺ″); Zubik, 2012 U.S. Dist. LEXIS 167737, 2012 WL 5932977, at *11 (same); Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, 2012 WL 3637162 at *8 (same). See also Nebraska, 2012 U.S. Dist. LEXIS 104419, 2012 WL 2913402, at *23 (ʺ″plaintiffs’ desire to plan for future contingencies that may never arise does not constitute the sort of hardship that can establish the ripeness of their claimsʺ″); [*45] Nashville, 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796, at *5 (same).

HN27 In addressing the significance of the ANPRM, the Court must navigate between two competing considerations. On one hand, an agency should not be allowed to burden regulated entities with prospective regulation but be able to avoid [*46] judicial review of the regulation simply by representing that its view has not finalized and that the regulation may be amended. See Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1, 380 U.S. App. D.C. 102 (D.C. Cir. 2008) (ʺ″[A]gencies cannot avoid judicial review of their final actions merely because they have opened another docket that may address some related matters.ʺ″). On the other hand, a plaintiff should not be able to manufacture standing by merely asserting a need to prepare for uncertain future harms because, as defendants argue, ʺ″[s]uch reasoning would gut [the] standing doctrine.ʺ″ With these concerns in mind, the Court turns to the operation of the ANPRM and the specific harms to

Page 14 of 22

2012 U.S. Dist. LEXIS 172695, *46

plaintiffs.
The Court will assume that the Departments issued the ANPRM in good faith and not as litigation posturing. See Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009) (ʺ″Without evidence to the contrary, we assume that formally announced changes to official government policy are not mere litigation posturing.ʺ″). But HN28 the ANPRM is not a ʺ″formally announced change[] to official government policy.ʺ″ Despite defendants’ attempt to characterize the ANPRM as a binding promise not to enforce the Coverage Mandate, [*47] the fact is that the ANPRM does not prevent the Coverage Mandate, as it currently exists, from going into effect. It is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the Coverage Mandate. The Departments need not make any changes to the Coverage Mandate to accommodate religious groups at all.9
In this light, the Court finds that plaintiffs’ claimed future injuries are certainly impending. The law as it currently written requires that, beginning January 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs. The Departments may alter the Coverage Mandate before that time, but HN29 the possibility of a change in the law does not mean that [*48] a requirement that will become effective by operation of law is not certainly impending. Cf. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77, 86 S. Ct. 194, 198, 15 L. Ed. 2d 165 (1965) (ʺ″the mere contingency that the Attorney General might revise the regulations at some future time does not render premature [a] challenge to the existing requirementsʺ″). Thus, plaintiffs’ future injuries are sufficiently imminent to constitute injuries in fact. Further, HN30 as long as an ʺ″agency’s act creates a substantial probability of an injury in fact, the causation requirement of Article III is satisfied.ʺ″ Mount Wilson FM Broadcasters, Inc. v. FCC,

884 F.2d 1462, 1465, 280 U.S. App. D.C. 252 (D.C. Cir. 1989) (internal quotation marks omitted). By issuing the Coverage Mandate, the Departments have created a substantial possibility of enforcement and, for the reasons discussed, the ANPRM does nothing to eliminate it. Therefore, the Court concludes that, notwithstanding the ANPRM, plaintiffs have standing to bring this suit based on their future injuries.
Despite defendants’ numerous assertions that the Coverage Mandate will not be enforced, plaintiffs remain prospectively subject to the Coverage Mandate notwithstanding the ANPRM, [*49] and, thus, plaintiffs have articulated ʺ″an actual and well-founded fearʺ″ that the law will be enforced against them. See Am. Booksellers Ass’n, 484 U.S. at 393, 108 S. Ct. at 643. The possibility of a future amendment to the Coverage Mandate that relieves plaintiffs from their obligation to cover contraceptive services and renders this action moot is speculative and is not sufficient to make plaintiffs’ claims non-justiciable. See CSI Aviation Servs., Inc. v. Dep’t of Transp., 637 F.3d 408, 412, 394 U.S. App. D.C. 474 (D.C. Cir. 2011) (rejecting an agency’s mootness argument based on a promised rulemaking where the existing agency action already ʺ″imposed an immediate and significant burdenʺ″).
The Court appreciates that other courts have held otherwise. Nevertheless, I conclude that those courts overestimate the significance of the ANPRM and underestimate the finality of the Coverage Mandate. For example, the Nashville court concluded that ʺ″the preventive services regulations, in their current form, will not be enforced against Plaintiffs,ʺ″ 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796, at *3, and the Legatus court remarked that ʺ″Legatus asks the court to enjoin the Government from enforcing a rule that is not yet finalized[.]ʺ″ 2012 U.S. Dist. LEXIS 156144, 2012 WL 5359630, at *5. [*50] I do not see the basis

9 Plaintiffs contend that any possible accommodation that the Departments provide pursuant to the ANPRM will be inadequate. The Court agrees with defendants and rejects this argument as speculative since it is uncertain what form the accommodation, if any, will take. See Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, 2012 WL 3637162, at *8 (ʺ″Wheaton only tilts at windmills when it protests that it will not be satisfied with whatever amendments defendants ultimately make.ʺ″).
Page 15 of 22

2012 U.S. Dist. LEXIS 172695, *50

for such holdings. This case has been pending for the implementation of the [I]ndividual [M]an-

six months. The earliest case challenging the dateʺ″).

Coverage Mandate was commenced over a year ago. The ANPRM was announced nearly ten months ago and entered in the Federal Register over eight months ago. In that time, the Departments have had ample opportunity to enact a meaningful change to the Coverage Mandate.10 The fact that they have not further suggests the likelihood of injuries to plaintiffs.

Although, as defendants point out, there was no question that the Individual Mandate would be put into effect, [*52] numerous cases have also recognized that HN31 uncertain future harms can have present effects that are sufficient for standing purposes. For example, in Lac Du Flambeau Bank of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490 (7th

The Coverage Mandate is a final rule, see 77 Cir. 2005), plaintiff, a Native American tribe, al-

Fed. Reg. 8,730 (adopting the Interim Final rules leged that it was placed at a disadvantage in

ʺ″as a final rule without changeʺ″), and the AN- seeking permission to operate a casino because

PRM has not made the Coverage Mandate

of an arrangement between Wisconsin and an-

any less binding on plaintiffs. Therefore, this is other tribe. Although defendants argued that

not a case where an enforcement action is

plaintiff could not show an injury in fact

only ʺ″remotely possibleʺ″ or plaintiffs’ concerns based on this disadvantage because there was

are ʺ″imaginary or speculative.ʺ″ See Babbitt v. ʺ″no guaranteeʺ″ that plaintiff would receive the

United Farm Workers Nat’l Union, 442 U.S. administrative approval that was a necessary

289, 298-99, 99 S. Ct. 2301, 2309, 60 L. Ed. 2d precondition of its application, the Seventh Cir-

895 (1979).

cuit concluded that plaintiff had standing to

bring the suit. Id. at 495, 498. It reasoned that

Even if plaintiffs’ future harms were not suffi- ʺ″the chance that the Secretary might deny [plain-

ciently imminent to be considered injuries in

tiff’s] application does not render plaintiff’s in-

fact, [*51] the Court would find that plaintiffs jury speculativeʺ″ because HN32 ʺ″the present

have standing because the Coverage Mandate impact of a future, though uncertain harm may

is causing plaintiffs to suffer present harm. First, establish injury for standing purposes.ʺ″ Id. at

the impending effectiveness of future regula-

498. Specifically, the court noted that plaintiff

tions can cause present effects that are suffi- needed to attract investors years in advance in

cient to create standing. For example, in cases order to finance its casino and the disputed

where plaintiffs challenged the Individual

compact impaired its ability to do so and

Mandate of the ACA prior to its effective date, [*53] increased its capital costs. Id. at 499.

courts focused on ʺ″the immediate economic

pressureʺ″ on plaintiffs ʺ″as a direct result of the Likewise, in Clinton v. City of New York, 524

[I]ndividual [M]andate.ʺ″ Goudy-Bachman v.

U.S. 417, 118 S. Ct. 2091, 141 L. Ed. 2d

Dep’t of Health & Human Servs., 764 F. Supp. 393 (1998), HN33 the Supreme Court found Ar-

2d 684, 691 (M.D. Pa. 2011). Courts found

ticle III’s standing requirements satisfied

that plaintiffs had standing because they were al- where allegedly speculative harms caused plain-

ready incurring the opportunity costs of hav-

tiffs present injury. One item at issue was a con-

ing to purchase health insurance — such as not tingent liability faced by New York City that

purchasing a new car, reducing spending, or di- had been revived through the President’s use of

verting money from other business goals. Id. at a line item veto. The Supreme Court held that

691-92. See also Butler v. Obama, 814 F.

New York had standing to challenge the line

Supp. 2d. 230, 236-37 (E.D.N.Y. 2011) (collect- item veto, even though a pending administra-

ing cases where standing was found based on tive action could waive the contingent liability,

plaintiffs’ allegations of ʺ″some current finan- because ʺ″[t]he revival of a substantial contin-

cial injury based upon their preparation for

gent liability immediately and directly affects

10 Indeed, on August 15, 2012, HHS reissued a bulletin originally issued on February 10, 2012 to clarify certain substantive issues concerning the temporary enforcement safe harbor.
Page 16 of 22

2012 U.S. Dist. LEXIS 172695, *53

the borrowing power, financial strength, and fis- placed them at a fundraising disadvantage be-

cal planning of the potential obligor.ʺ″ Id. at

cause they did not wish to solicit large contribu-

431, 118 S. Ct. at 2099.

tions for political reasons. HN35 The Su-

Plaintiffs here have established similar present harms stemming from the future operation of the Coverage Mandate. These harms range from budgeting and administrative costs incurred in analyzing how to update their health plans once the Coverage Mandate becomes effective to the diversion of funds away from ministries, such as healthcare, in order

preme Court held that this disadvantage did not constitute ʺ″an injury in fact that is ’fairly traceable’ʺ″ to the challenged law because plaintiffs’ ʺ″alleged inability to compete stems not from the operation of [the statute], but from their
own personal ’wish’ not to solicit or accept
large contributions, i.e., their personal choice.ʺ″ 540 U.S. at 228, 124 S. Ct. at 709.

to prepare for possible fines for failure to com- The injuries that plaintiffs are suffering be-

ply with the Coverage Mandate. [*54] More- cause of the Coverage Mandate are different.

over, CHSLI faces the unique harm of in- In McConnell, it was plaintiffs’ personal prefer-

creased costs (and foregone cost savings)

ences, rather than the statute, that placed

related to providing health care coverage to its them at a disadvantage. Here, however, the op-

nurses because the NYSNA is no longer will- eration of Coverage Mandate has itself

ing to provide coverage that does not include changed insurance requirements. Since each

contraceptives in light of the Coverage Man- plaintiff employs numerous people, the practi-

date.11

cal realities of administering their employees’

health care coverage require plaintiffs to under-

In response, defendants rely on the ANPRM. take the preparations about which they now

They argue that ʺ″it is hard to fathom how plain- complain. Even though the ANPRM

tiffs can reasonably incur costs planning for

[*57] makes it uncertain that the Coverage Man-

the effects of a not-yet promulgated regulation, date will ultimately apply to them, plaintiffs

particularly one that is intended to accommo- persuasively argue that if they assume that the

date concerns of the very type that plaintiff has Coverage Mandate will be modified and

raised.ʺ″ In other words, plaintiffs’ preparation guess wrong, given the timelines at issue, they

costs and resource diversions are unnecessary, will be unprepared for the onerous fines or

according to defendants, because the AN-

other eventualities that occur when the Cover-

PRM makes it doubtful that the Coverage Man- age Mandate goes into effect.

date will apply to them. In support, defen-

dants cite McConnell to argue that any injury Defendants’ arguments to the contrary ring hol-

plaintiffs suffer as a result of their preparation low because defendants themselves acknowl-

for the Coverage Mandate going into effect

edged that employers will have to engage in ad-

is [*56] a result of their own choice and, thus, vance preparation for the implementation of

not fairly traceable to defendants’ conduct.

the ACA’s provisions. In fact, defendants high-

Plaintiffs in McConnell alleged that a law rais- lighted the preparations that employers will

ing hard-money campaign contribution limits need to make as a reason for issuing the In-

11 Although defendants have not raised this argument, the involvement of a third party, NYSNA, suggests that CHSLI’s injury may not be fairly traceable to the Coverage Mandate. The Nashville court was receptive to such an argument. There, certain plaintiffs alleged current harm because their insurance carrier presently required the provision of contraceptive services notwithstanding the fact that plaintiffs fell within the safe harbor. The court concluded that this harm was not ʺ″fairly traceableʺ″ to the Coverage Mandate because it was a result of the insurer’s refusal to honor the safe harbor. 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796, at *4. Nashville is distinguishable from the facts here. Unlike the insurer in Nashville, NYSNA is not refusing to honor a portion of the Department’s regulatory scheme. Instead, it is abiding by that scheme in refusing to provide insurance without contraceptive coverage. NYSNA’s decision to abide by the law is [*55] what is causing CHSLI to face increased cost. HN34 The law is clear that, in the standing context, ʺ″[a] causal chain does not fail simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible.ʺ″ Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (internal quotation marks and alterations omitted). It is entirely plausible that a the harm caused by a third party’s refusal to provide a cost-saving service it previously offered in order to comply with a new regulation is fairly traceable to that regulation.
Page 17 of 22

2012 U.S. Dist. LEXIS 172695, *57

terim Final Rules long before their effective date. As the Interim Final Rules themselves explain:
HN36 [T]he requirements in these interim final regulations require significant lead time to implement. These interim final regulations require plans and issuers to provide coverage for preventative services listed in certain recommendations and guidelines without imposing any cost-sharing requirements ... With respect to the changes that would be required to be made under interim final regulations, group health plans and health insurance issuers subject [*58] to these provisions have to be able to take these changes into account in establishing their premiums, and in making other changes to the designs of plan or policy benefits, and these premiums and plan or policy changes would have to receive necessary approvals in advance of the plan or policy year in question..... Accordingly, in order to allow plans and health insurance coverage to be designed and implemented on a timely basis, regulations must be published and available to the public well in advance of the effective date of the requirements of the [ACA].
75 Fed. Reg. 41,730 (emphasis added). Defendants cannot recognize employers’ need for advance preparation as a result of their actions in one context, but disclaim responsibility for those preparations in another context.
Again, the Court recognizes that the other courts to have addressed this issue reached the opposite conclusion. As stated in Belmont Abbey, ʺ″[c]osts stemming from Plaintiff’s desire to prepare for contingencies are not sufficient, however, to constitute hardship ... particularly when the agency’s promises and actions suggest the situation Plaintiff fears may not occur.ʺ″ 2012 U.S. Dist. LEXIS 99391, 2012 WL 2914417, at *14. See also Zubik, 2012 U.S.

Dist. LEXIS 167737, 2012 WL 5932977, at *11 [*59] (same); Nashville, 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796, at *5 (same); Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, 2012 WL 3637162, at *8 (same); Nebraska, 2012 U.S. Dist. LEXIS 104419, 2012 WL 2913402, at *23 (same). Fundamentally, however, this Court cannot accept that the present costs incurred by plaintiffs are simply the result of their ʺ″desire to prepare for contingencies.ʺ″ Quite frankly, ignoring the speeding train that is coming towards plaintiffs in the hope that it will stop might well be inconsistent with the fiduciary duties that plaintiffs’ directors or officers owe to their members. As explained above, the practical realities of administering health care coverage for large numbers of employees — which defendants’ recognize — require plaintiffs to incur these costs in advance of the impending effectiveness of the Coverage Mandate. That is a business reality that any responsible board of directors would have to appreciate.
Moreover, HN37 the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, ʺ″Trust us, changes are comingʺ″ clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment [*60] in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction. See Florida Cannabis Action Network, Inc. v. City of Jacksonville, 130 F. Supp. 2d 1358, 1362 (M.D. Fla. 2001) (ʺ″The whim, self restraint, or even the well reasoned judgment of a government official cannot serve as the lone safeguard of First Amendment rights.ʺ″). Considering the extraordinary political passion surrounding the Coverage Mandate from all sides, there is simply no way to predict what, if any, changes to the Coverage Mandate will be made, even if some policymakers favor certain changes.
As far as the contrary authority, plaintiffs in this action have made a more concrete and com-

Page 18 of 22

2012 U.S. Dist. LEXIS 172695, *60

pelling showing of present injury than plain- charitable funding.12

tiffs in most of the other cases that have ad-

dressed defendants’ jurisdiction argument. The By contrast, plaintiffs here have demonstrated

Wheaton Coll. court noted that Wheaton had [*63] how the enormous changes to their plans

failed to demonstrate any ʺ″specific present ob- required by the Coverage Mandate currently

jective harm[.]ʺ″ 2012 U.S. Dist. LEXIS

exacerbate their preparation costs. They have

120187, 2012 WL 3637162, at *7. The Wheaton also demonstrated that the imminent operation of

Coll, complaint only alleged that Wheaton

the Coverage Mandate has already caused

had to devote resources ʺ″to determining how

them to divert funds from their ministries and,

to respond to the [Coverage] Mandateʺ″ and was in the case of CHSLI, face increased health care

burdened in its employee recruitment efforts

costs for their employees.

because of uncertainty. Defendants argued that [*61] these allegations were insufficient to plead standing because they did not demonstrate why, in light of the ANPRM, Wheaton was expending its resources in this way. In Belmont Abbey, plaintiff also only claimed being disadvantaged in employee recruitment and having to devote resources to determining how to respond to the Mandate. The harms at issue in Legatus only included being disadvantaged in employee recruitment and the need to prepare for plan changes months in advance of the implementation of the implementation of the Coverage Mandate. Plaintiff in Legatus did not, however, claim that the operation of the Coverage Mandate increased its plan preparation costs. Plaintiffs in Nashville only claimed that changes in their plans as a result of the Coverage Mandate would require more lead time to implement than typical changes, that they were being forced to ʺ″considerʺ″ limiting public services, and that they were placed at a disadvantage in employee recruitment. Lastly, plain-

Finally, by holding that the harms plaintiffs are currently incurring constitute injuries in fact, the Court has not thrown open the floodgates to speculative, pre-enforcement suits as defendants suggest. HN38 Although defendants are correct that ʺ″[e]very organization needs to plan for the future, sometimes even for events that are unlikely to occur[,]ʺ″ that truism does not imply that ʺ″an organization would have standing to challenge a future event that has one a onepercent chance of happening.ʺ″ The law remains that a threatened harm must be certainly impending to give rise to an injury in fact and this Court’s holding does not undermine this limitation. The Court’s holding — that preparatory costs in advance of the effective date of a binding regulation, which an agency acknowledges are necessary, can constitute certainly impending harms — is narrow [*64] and hardly seems likely to cause the courts to be inundated with actions based on speculative harms.

tiffs in Zubik described some concrete present harms, including losing a specific applicant

III. Ripeness

for a management position and having to indemnify a coverage providers, but most of the harms at issue merely involved fear [*62] of future injury, such as the loss of government and

Defendants’ alternative ground for dismissal is that even if plaintiffs have standing to challenge the Coverage Mandate, their claims are not ripe for judicial review. HN39 ʺ″Ripeness is

12 In addition, some of the other cases addressing the Departments’ jurisdiction argument have involved facial challenges to subject matter jurisdiction, rather than factual ones. Both the Nebraska, 2012 U.S. Dist. LEXIS 104419, 2012 WL 2913402, at * 11, and the Zubik, 2012 U.S. Dist. LEXIS 167737, 2012 WL 5932977, at *5, courts construed the Departments’ motions to dismiss as facial challenges, although the Zubik court, nonetheless, commented on matters set forth in plaintiffs’ affidavits. The Nashville court appeared to conduct a facial inquiry, 2012 U.S. Dist. LEXIS 166152, 2012 WL 5879796, at *3, and, accordingly, it centered its analysis on the allegations in the complaint. See also Wheaton Coll., 2012 U.S. Dist. LEXIS 120187, 2012 WL 3637162 (analyzing plaintiff’s allegations where plaintiff had not put additional facts before the court). The Belmont Abbey court, on the other hand, recognized that it was allowed to consider materials extrinsic to the complaint, 2012 U.S. Dist. LEXIS 99391, 2012 WL 2914417, at *5, but its analysis still focused largely on the sufficiency of plaintiff’s allegations. See also Legatus, 2012 U.S. Dist. LEXIS 156144, 2012 WL 5359630 (analyzing facts alleged in the complaint and set forth in supporting papers).
Page 19 of 22

2012 U.S. Dist. LEXIS 172695, *64

both a constitutional and a prudential doctrine.ʺ″ Friends of Hamilton Grange v. Salazar, No. 08 Civ. 5220, 2009 U.S. Dist. LEXIS 21855, 2009 WL 650262, at *17 (S.D.N.Y. Mar. 12, 2009). Although it is not entirely clear from their briefs, it appears that defendants’ motion is based on prudential ripeness doctrine as they contend that the Court ʺ″shouldʺ″ dismiss this case as unripe, not that the Court must dismiss the case. See Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003) (HN40 ʺ″Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary.ʺ″).
HN41 Prudential ripeness has to do with when a court should entertain a lawsuit, not whether it may entertain the suit. The prudential ripeness inquiry focuses on ʺ″whether the alleged policy at this stage is sufficiently definite and clear to permit sound review by this Court[.]ʺ″ New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 131 (2d Cir. 2008). [*65] There are two prongs to this inquiry, ʺ″requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.ʺ″ Abbott Labs v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967).13

2006), [*66] abrogated on other grounds, Bond v. United States, U.S. , 131 S. Ct. 2355, 180 L. Ed. 2d 269 (2011).
Defendants argue that plaintiffs’ challenge to the Coverage Mandate is not fit for judicial review because the ANPRM initiated a process to amend the Coverage Mandate and, in the meantime, the temporary enforcement safe harbor protects plaintiffs from any hardship.
A. Fitness
HN43 The fitness analysis concerns ʺ″whether the issues sought to be adjudicated are contingent on future events or may never occur.ʺ″ Isaacs v. Bowen, 865 F.2d 468, 478 (2d Cir. 1989). Courts have considered challenges to agency policies unfit for resolution where the challenge was ʺ″directed at possibilities and proposals only, not at a concrete plan which has been formally promulgated and brought into operation.ʺ″ Id. at 477. Consequently, courts distinguish between ʺ″pre-enforcement judicial review of specific regulations promulgated by the agency and judicial review of a nonfinal proposed policy.ʺ″ Grandeau, 528 F.3d at 132 (internal quotation marks omitted).

HN42 Ripeness analysis is similar to standing Pre-enforcement challenges to a regulation analysis. See Warth, 422 U.S. at 499 n. 10, 95 S. may be fit for resolution when the regulation

Ct. at 2205 n.10 (ʺ″The standing question ...

was ʺ″promulgated in a formal manner after an-

bears close affinity to questions of ripeness — nouncement in the Federal Registerʺ″ and is

whether the harm asserted has matured suffi- ʺ″quite [*67] clearly definitive[.]ʺ″ Abbott Labs,

ciently to warrant judicial interventionʺ″). Like 387 U.S. at 151, 87 S. Ct. at 1517. On the

standing, ripeness doctrine ʺ″prevents a federal other hand, generally ʺ″[a] claim is not ripe where

court from entangling itself in abstract dis-

the possibility that further consideration will

agreements over matters that are premature for actually occur before [implementation] is not

review because the injury is merely specula- theoretical but real.ʺ″ Full Value Advisors v.

tive and may never occur.ʺ″ Ross, 524 F.3d at S.E.C., 633 F.3d 1101, 1107, 394 U.S. App.

226. Where a defendant’s ʺ″ripeness arguments D.C. 204 (D.C. Cir. 2011) (second alteration in

concern onlyʺ″ the ʺ″requirement that the in-

original, internal quotation marks omitted).

jury be imminent rather than conjectural or hypotheticalʺ″ then ʺ″it follows that our analysis of [defendant’s] standing challenge applies
equally and interchangeably to its ripeness challenge.ʺ″ Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225-226 (2d Cir.

For the reasons already discussed, HN44 the Court is of the opinion that the Coverage Mandate is ʺ″quite clearly definitive.ʺ″ It is not a non -final proposed policy; it is a final rule. See Zubik, 2012 U.S. Dist. LEXIS 167737, 2012 WL 5932977, at *8 (ʺ″There is no doubt that

13 Constitutional ripeness is evaluated using the same two-part analysis. Grandeau, 528 F.3d at 132 n.9. Page 20 of 22

2012 U.S. Dist. LEXIS 172695, *67

the regulations challenged by Plaintiffs are

dicial review.

’clearly definitive’ by virtue of having been for-

mally promulgated.ʺ″) And although the Court B. Hardship

will assume that the consideration that the De-

partments will conduct pursuant to the ANPRM is real, not merely theoretical, there is no way to tell where that will go; the ANPRM is

HN45 In assessing the hardship of withholding judicial consideration, courts ʺ″ask whether the challenged action creates a direct and imme-

not a ʺ″concreteʺ″ plan.ʺ″ It is, in fact, only ʺ″directed at possibilities.ʺ″ The Court realizes that declining review of agency actions that are

diate dilemma for the parties. The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute

being reconsidered by the agency affords
ʺ″time [*68] for the challenging party to convince the agency to alter a tentative positionʺ″ and ʺ″provides the agency an opportunity to correct its own mistakes and apply its exper-
tise[.]ʺ″ Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (internal quotation

hardship.ʺ″ Grandeau, 528 F.3d at 134 (internal citations and quotation marks omitted).
Rather, hardship is present ʺ″where a regulation requires an immediate and significant change
in the plaintiffs’ conduct of their affairs with se-
rious penalties attached to noncompliance[.]ʺ″ Abbott Labs, 387 U.S. at 153, 87 S. Ct. at 1518.

marks omitted). But the Coverage Mandate is not a ʺ″tentativeʺ″ agency position.

For the reasons discussed in the standing context, the Court concludes that the Coverage

Defendants cite Am. Petroleum Inst. for the

Mandate is [*70] causing plaintiffs at least

proposition that even a final agency regulation some ʺ″some present detrimentʺ″ and that plain-

may be considered a tentative position unfit

tiffs’ preparations in order to avoid noncom-

for judicial review when the agency has under- pliance (or budget for the penalties) are justi-

taken to amend the regulation. Defendants’

fied in light of the practical realities of the

(and the other courts’) reliance on Am. Petro- Coverage Mandate. Thus plaintiffs have ad-

leum Inst. is misplaced. The amendments at is- equately demonstrated hardship from withhold-

sue in Am. Petroleum Inst. are significantly

ing judicial review. Importantly, even if the

different from the ANPRM. While the original Court were to find that the Coverage Mandate

regulation provided that ʺ″spent refinery cata- was not fit for review, plaintiffs’ hardship would

lystsʺ″ were not included in a class of deregu- ʺ″outweigh[] the competing institutional inter-

lated substances, the amendments proposed both ests in deferring review.ʺ″ See Eagle-Picher In-

the inclusion of the catalysts and the elimina- dus., Inc. v. EPA, 759 F.2d 905, 915, 245

tion of the entire deregulated class. In other U.S. App. D.C. 179 (D.C. Cir. 1985). See also

words, the amendment constituted ʺ″a com-

Connecticut v. Duncan, 612 F.3d 107, 115

plete reversal of course on EPA’s part that, if ad- (2d Cir. 2010) (noting that hardship ʺ″alone can,

opted, would necessitate substantively differ- if sufficiently weighty, render a claim ripeʺ″).

ent legal analysis.ʺ″ Id. at 388. While the EPA’s

position could fairly be considered tentative

For this reason, defendants’ (and the other

[*69] in light of its substantive policy rever- courts’) reliance on cases where hardship was

sal, the ANPRM does not announce any simi- not demonstrated is unavailing. For example,

lar reversal of policy. As defendants admit,

in Full Value Advisors, although the chal-

the ANPRM ʺ″does not preordain what amend- lenged disclosure regulations were operative, ments to [the Coverage Mandate] defendants plaintiff’s ʺ″allegedly proprietary information

will ultimately promulgate[.]ʺ″ Indeed, it is still ha[d] not been disclosed publiclyʺ″ and, thus,

possible that the Coverage Mandate as it is

plaintiff ʺ″had not yet suffered any hardship as a

currently structured will become effective at the result of the . . . disclosure requirements.ʺ″

expiration of the safe harbor.

633 F.3d at 1107. Likewise, in Tex. Indep. Pro-

ducers & Royalty Owners Ass’n v. EPA, 413

Therefore, the Court concludes that plaintiffs’ F.3d 479 (5th Cir. 2005), [*71] the EPA de-

challenge to the Coverage Mandate is fit for ju- ferred the effective date of a rule and, during the

Page 21 of 22

2012 U.S. Dist. LEXIS 172695, *71

deferral period, it intended to consider issues be ʺ″better decided later.ʺ″ The risk here of a fait

raised by plaintiffs. Although the court found pe- accompli that would cause plaintiffs either fi-

titioners’ challenge to the rule unripe in part be- nancial or First Amendment injury is simply too

cause the court did not want to ʺ″prematurely

high.

cut off the EPA’s interpretative process[,]ʺ″ the

court also concluded that petitioners had not sat- The Court has no desire to interfere with or be-

isfied the hardship element of the ripeness

come entangled in the Departments’ policy de-

test where the rule’s effectiveness was delayed bates. The Departments are, of course, free

and the petitioners admitted that their indus-

to amend the Coverage Mandate at any time

try — oil and gas exploration and production — and the Court takes no position on whether any

ʺ″is unable to plan far in advance.ʺ″ Id. at 483. amendment is necessary or advisable. But the

By contrast, the practical realities of administer- Coverage Mandate has caused and will con-

ing employee health coverage require plan-

tinue to cause plaintiffs harm so long as it re-

ning far in advance, as defendants admit.

mains in place. The Departments’ possible deci-

sion to amend their policies does not abrogate

The Court is mindful that litigating the merits of plaintiffs’ right to seek relief for their inju-

plaintiffs’ challenge to the Coverage Man- ries.

date raises extremely important questions

about the extent to which laws of general appli- CONCLUSION cability must accommodate religious beliefs

and that HN46 a crucial function of prudential Defendants’ motion to dismiss for lack of juris-

ripeness doctrine is to avoid ʺ″premature ex-

diction [16] is granted in part and denied in

amination of . . . constitutional issues that time part. The claims of the Diocese [*73] and

may make easier or less controversial.ʺ″ See

Catholic Charities are dismissed for lack of

Duncan, 612 F.3d at 114. At the same time, the standing. Defendants’ motion is otherwise de-

touchstone of prudential ripeness [*72] is

nied.

that ʺ″the case will be better decided later and [] the parties will not have constitutional rights SO ORDERED:

undermined by the delay.ʺ″ Simmonds, 326 F.3d at 357. Because the Court finds that the

Dated: Brooklyn, New York

Coverage Mandate is sufficiently definite, not- December 4, 2012 withstanding the ANPRM, and the operation of

the Coverage Mandate is imposing costs on /s/ Brian M. Cogan plaintiffs that they claim a constitutional

right to be free from, this is not a case the will U.S.D.J.

Page 22 of 22

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------- )(
THE ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, et al.,

Plaintiffs,
-against-
KATHLEEN SEBELIUS, in her official capacity as Secretary, United States Department of Health and Human Services, et al.,

MEMORANDUM DECISION AND ORDER
12 Civ. 2542 (BMC)

Defendants.

----------------------------------------------------------- )( COGAN, District Judge.

The Patient Protection and Affordable Care Act (the "ACA"), Pub. L. No. 111-148, 124

Stat. 119 (20 10), requires that group health insurance plans cover certain preventative medical

services without cost-sharing, such as a copayment or a deductible. Pursuant to regulations

subsequently issued, the preventative services that must be covered include contraception,

sterilization, and related counseling (the "Coverage Mandate"), although certain religious

employers are exempt from this requirement.

Plaintiffs are five New York-area Roman Catholic entities. Catholic doctrine teaches that

contraception and sterilization, along with other forms of artificial interference with the creation

ofhuman life, are immoral and Catholic organizations may not condone or facilitate these

practices. Plaintiffs allege that the Coverage Mandate violates their rights to religious liberty

because it requires them to pay for contraceptive coverage despite their sincerely-held religious

beliefs. They assert claims under the Establishment, Free Exercise, and Free Speech clauses of

the First Amendment, as well as the Religious Freedom Restoration Act and the Administrative Procedures Act. Plaintiffs ask the Court to invalidate and the enjoin enforcement of the Coverage Mandate against them.
Defendants have moved to dismiss plaintiffs' complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that plaintiffs lack standing to challenge the Coverage Mandate and, alternatively, that the case is not ripe for judicial review. 1 For the reasons set forth below, defendants' motion is granted in part and denied in part.
BACKGROUND
I. The Relevant Statutes and Regulations The Coverage Mandate is the result of a complex history of Congressional legislation and
agency rulemaking involving the Department of Labor ("DoL"), the Department of the Treasury ("DoT"), and the Department of Health and Human Services ("HHS") (collectively, the "Departments").
In March 2010, Congress enacted the ACA as well as the Health Care and Education Reconciliation Act. These acts established a number of requirements relating to "group health plans," a term which encompasses employer plans that provide health care coverage to employees, regardless of whether the plans are insured or self-insured. See 42 U.S.C. § 300gg91(a)(l); Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,727 (July 19, 2010) ("Interim Final Rules"). As is relevant here, the ACA requires that group health plans provide coverage for a number of preventative medical services
1 In addition to the parties' briefing on this motion, the Court has received an amicus brief filed by the American Center for Law & Justice and 79 members of the U.S. Congress in support of plaintiffs.
2

at no charge to the patient. § 300gg-13. Specially, the ACA provides that a group health plan must "at a minimum provide coverage for and shall not impose any cost sharing requirements for[,]" among other things, women's "preventative care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.]" § 300gg-13(a)(4).2
The ACA's preventative services coverage requirement does not, however, apply to group health plans that are grandfathered. See 42 U.S.C. § 18011(a)(2). A group health plan is grandfathered when at least one person was enrolled in the plan on March 23, 2010 and the plan has continually covered at least one individual since that date. See 26 C.F.R. § 54.98151251 T(a)(l)(i) (DoT); 29 C.F.R. § 2590.715-1251(a)(l)(i) (DoL); 45 C.F.R. § 147.140(a)(1)(i) (HHS). A plan may lose its grandfathered status, however, if, when compared to the terms of the plan as of March 23, 2010, it eliminates benefits, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly decreases an employer's contribution rate, or imposes or lowers an annual limit on the dollar value of benefits. See 26 C.F.R. § 54.9815-1251 T(g)(1) (DoT); 29 C.F.R. § 2590.7151251(g)(1) (DoL); 45 C.F.R. § 147.140(g)(1) (HHS).
The Departments began issuing regulations implementing the ACA in phases. On July 19, 2010, they announced that HHS was developing the HRSA guidelines and expected to issue them by August 1, 2011. See Interim Final Rules, 75 Fed. Reg. at 41,728. Since there were no existing HRSA guidelines concerning preventative care and screenings for women at the time of the Interim Final Rules, HHS commissioned the Institute of Medicine ("IOM"), a Congressionally-funded body, with "review[ing] what preventative services are necessary for
2 The Health Resources and Services Administration ("HRSA") is an agency within HHS.
3

women's health and well-being" and recommending comprehensive guidelines, as called for by the ACA. On July 19, 2011, IOM published a report recommending the inclusion of certain preventative medical services in HRSA's guidelines. Among other things, IOM recommended that group health plans be required to cover "the full range of Food and Drug Administration ["FDA"]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." FDA-approved contraceptive methods encompass oral conceptive pills, diaphragms, intrauterine devices, and emergency contraceptives, which, according to plaintiffs, can cause abortions.
HRSA adopted IOM's recommendations on August 1, 2011. Two days later, the Interim Final Rules were amended to "provide HRSA additional discretion to exempt certain religious employers from the [HRSA] Guidelines where contraceptive services are concerned." 76 Fed. Reg. 46,263 (Aug. 3, 2011). See also 45 C.P.R.§ 147.130(a)(1)(iv)(A). In order to qualify for the religious employer exemption, an organization must meet all of the following criteria:
(1) The inculcation of religious values is the purpose ofthe organization. (2) The organization primarily employs persons who share the religious tents 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)(l)
and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.3 45 C.P.R.§ 147.130(a)(1)(iv)(B) (HHS). See also 29 C.P.R.§ 2590.715-2713(a)(1)(iv) (DoL). HRSA exercised its discretion under the amended Interim Final Rules and exempted the religious employers who satisfy these criteria from the requirement of covering contraceptive
3 These sections of the Internal Revenue Code apply to "churches, their integrated auxiliaries, and conventions or associations of churches," as well as "the exclusively religious activities of any religious order." 26 U.S.C. § 6033(a)(l), (a)(3)(A)(i), (a)(3)(A)(iii).
4

services. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012).
The Departments received over 200,000 responses to their request for comments on the amended Interim Final Rules. Many of the comments were submitted by religiously-affiliated institutions and asserted that the religious employer exemption was too narrow and that the limited scope of the exemption raised religious liberty concerns. Id. at 8,727. On February 15, 2012, the Departments finalized the amended Interim Final Rules without making any changes to the criteria used to determine whether an organization qualified for the religious employer exemption. Id. These finalized amended rules are the operative regulations at issue in this suit and, together with the HRSA guidelines, constitute the Coverage Mandate. See 29 C.F.R. § 2590.715-2713(a)(1)(iv) (DoL); 45 C.F.R. § 147.130(a)(1)(iv) (HHS).
At the same time that they finalized the Interim Final Rules, however, the Departments announced a "temporary enforcement safe harbor" period during which they planned "to develop and propose changes to these final regulations that would meet two goals - providing contraceptive coverage without cost-sharing to individuals who want it and accommodating nonexempted, non-profit organizations' religious objections to covering contraceptive services[.]" 77 Fed. Reg. at 8,727. Without the safe harbor, non-grandfathered plans would be required to comply with the Coverage Mandate for plan years beginning on or after August 1, 2012. The safe harbor extended this date, by a year, to plan years beginning on or after August 1, 2013, during which time the Departments agreed not to take any enforcement action against an employer or group health plan that complies with the conditions of the safe harbor. See HHS, Guidance on Temporary Enforcement Safe Harbor, at 3 (Aug. 15, 2012), available at
5

http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf (last visited Dec. 3, 2012). In order to comply with the terms ofthe safe harbor, the organization must (1) be organized and operate as a non-profit entity, (2) have "consistently not provided all or the same subset of contraceptive coverage otherwise required at any point" from February 10, 2012 onward because of the organization's religious beliefs, (3) provide notice to participants that some or all contraceptive services will not be covered for the first plan year beginning on or after August 1, 2012, and (4) provide a certification that it satisfies these criteria.
Consistent with their announced plan "to develop and propose changes" to the Interim Final Rules, on March 21, 2012, the Departments filed an advance notice of proposed rulemaking ("ANPRM") in the Federal Register concerning possible means of accommodating religious organizations' objections to the Coverage Mandate. See Certain Preventative Services under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). Specifically, the ANPRM "presents questions and ideas" and provides an "opportunity for any interested stakeholders to provide advice and input into the policy development relating to the accommodation to be made with respect to non-exempted, non-profit religious organizations with religious objections to contraceptive coverage." Id. at 16,503. One possible accommodation that the Departments "intend to propose" is to require health insurance issuers to provide health insurance coverage that excludes contraceptive services to objecting religious organizations while, at the same time, offering contraceptive coverage directly to plan participants without charging either the participants or the organization. Id. at 16,505. Although the Departments have stated an intent to finalize amended regulations so that they are effective prior to the end of the safe harbor, id. at 16,503, the Coverage Mandate is the currently-operative law and the ANPRM does not change that.
6

Indeed, failure to comply with the Coverage Mandate may result in substantial penalties. Under the Internal Revenue Code, large 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" can be assessed an annual fine of $2,000 per full-time employee. 26 U.S.C. § 4980H(a), (c)(1). An additional tax of$100 per employee per day may be imposed for "any failure of a group health plan" to provide required coverage. 26 U.S.C. § 4980D(b). See also 42 U.S.C. § 300gg-22(b)(2)(C)(i) (providing for penalties of up to $100 per person per day for failures to satisfy coverage requirements). II. The Plaintiffs
The five plaintiffs are all entities affiliated with the Roman Catholic Church. In their complaint, they allege that the Coverage Mandate places them in a position where they are forced to either violate the tenets of their religious faith or pay substantial penalties for adhering to their beliefs. In particular, if plaintiffs want to avoid the penalties for non-compliance with the Coverage Mandate, they must either facilitate and subsidize activity, namely the provision of contraceptives, that their beliefs forbid or curtail their operations and ministries in a way that is also inconsistent with their faith.
A. The Archdiocese The Roman Catholic Archdiocese ofNew York (the "Archdiocese) is a non-profit organization that encompasses 370 parishes located in the New York area. It administers numerous charitable and educational programs, which, in line with Catholic teachings, are not aimed solely at Catholics, but are meant to benefit the broader community. The Archdiocese, its parishes, and its institutions employ nearly 10,000 people, almost 8,000 of whom are lay people. The Archdiocese does not know how many of its employees are Catholic.
7

The Archdiocese operates a self-insured health plan, underwriting its employees' medical costs. Its health plan and pharmaceutical coverage are administered by third parties. The plan year for the Archdiocese's plan begins on January 1. Consistent with Catholic teaching, the plan currently does not cover abortifacients, sterilization, or contraception.4 Nearly 9,000 people, both Catholic and non-Catholic, are covered under the Archdiocese's health plan. The Archdiocese does not believe that its plan is eligible for grandfathered status under the ACA because the plan significantly increased the 10% employee contribution requirement and also increased co-payment requirements for higher-earning employees. Since the Archdiocese employs and serves a number of non-Catholics, the Archdiocese is uncertain of whether it will qualify for the current religious employer exemption from the Coverage Mandate. However, the Archdiocese claims to fall within the scope of the one-year safe harbor, meaning that, under the current regulations, the Coverage Mandate will become applicable to it for the plan year beginning January 1, 2014.
The Archdiocese argues that once the Coverage Mandate goes into effect, it will either have to provide coverage for services in violation of its sincerely-held religious beliefs or it will be exposed to significant fines for either discontinuing health coverage for its employees or continuing to provide coverage without the objectionable services. The Archdiocese claims that it is currently being injured, even before the Coverage Mandate goes into effect, because it needs to (1) begin budgeting for plan changes that will need to occur because of the Coverage Mandate, (2) communicate with plan participants and third-party vendors about any plan changes, and (3) update its plan documents. While making even small changes to its plan requires the Archdiocese to begin preparing at least six months in advance, the Archdiocese
4 Although contraceptives are barred under the Archdiocese's plan, the medication may be covered when provided for medically necessary, non-contraceptive purposes.
8

claims that preparing for the Coverage Mandate requires additional lead time because it forces the Archdiocese to "decide between breaking the law and making significant, likely revolutionary, changes to its employee coverage."
Further, failing to comply with the Coverage Mandate could cause the Archdiocese to incur penalties of up to $200 million per year. As a result, the Archdiocese has already begun budgeting and preparing for the Coverage Mandate. It has expended resources to comply with the safe harbor as well as to review the Coverage Mandate, the religious employer exemption, and the likely impact on the Archdiocese. The ANPRM does not alleviate this situation because, even if the current Coverage Mandate is eventually changed, it will not provide the Archdiocese with enough time to implement changes to its plan. With regard to its ability to satisfy the current religious employer exemption, the Archdiocese claims that it will either have to curtail employing and providing services to non-Catholics, in violation of its beliefs, or undertake an onerous investigation of the religious beliefs of those whom it employs and serves.
B. ArchCare Catholic Health Care System and its affiliates, the Continuing Care Community of the Archdiocese of New York (collectively, "ArchCare"), are non-profit organizations that provide faith-based health care to the poor and disadvantaged, including elderly and disabled individuals, consistent with Catholic values. ArchCare operates a self-insured health plan for its employees, underwriting the plan while contracting with third parties for administration of the plan. The plan covers approximately 2,500 people and ArchCare does not know how many those covered are Catholic. Like the Archdiocese's plan, ArchCare's plan does not cover abortifacients, sterilization, or contraception in accordance with Catholic moral teaching. ArchCare claims that it does not qualify for the religious employer exemption and that, because it recently increased
9

employee cost-sharing requirements by more than 5%, its plan is not grandfathered. But since it claims to fall within the safe harbor, the Coverage Mandate will become applicable to ArchCare for the plan year beginning January 1, 2014.
ArchCare's explanation of how it is currently being injured by the Coverage Mandate parallels that of the Archdiocese. ArchCare claims that it is already budgeting for fines of up to $40 million per year and otherwise preparing for possible changes to its plan. Additionally, ArchCare claims that the "specter of significant fines" has forced ArchCare to divert funds that it would otherwise use to expand its healthcare operations.
C. The Diocese and Catholic Charities The Roman Catholic Diocese of Rockville Centre, New York (the "Diocese") is a nonprofit organization that encompasses 134 parishes in Nassau and Suffolk counties. The Diocese is responsible for numerous charitable and educational programs for the benefit of Catholics and non-Catholics alike. One such program is Catholic Charities of the Diocese of Rockville Centre ("Catholic Charities"), an organization that provides a variety of social services to both Catholics and non-Catholics. Together with its hospitals, schools, parishes and other associated institutions, the Diocese employs nearly 20,000 people (of which over 600 are employed by Catholic Charities). Neither the Diocese nor Catholic Charities know how many of these employees are not Catholic. Employees of both the Diocese and Catholic Charities receive health care coverage through the Diocese's health plan, which covers over 3,000 people. The Diocese operates a selfinsured health plan, administered by third parties, underwriting its employees' medical costs. The plan does not cover abortifacients, sterilization, or contraception. The Diocese claims that its plan will not be grandfathered under the ACA due to recently increased cost-sharing
10

requirements. Catholic Charities claims that it does not qualify for the religious employer exemption to the Coverage Mandate, while the Diocese is uncertain as to whether it will qualify for the exemption. But both the Diocese and Catholic Charities argue that they fall within the scope of the safe harbor, meaning that the Coverage Mandate will apply to them for the plan year beginning January 1, 2014.
The Diocese and Catholic Charities assert current injuries resulting from the Coverage Mandate that are similar to those claimed by the Archdiocese and ArchCare except that the Diocese claims it requires at least nine months of lead time to make changes to its health plan. Further, the Diocese claims that it faces up to $67 million in penalties a year for failure to comply with the Coverage Mandate, while Catholic Charities' exposure is over $9 million a year. Since both the Diocese and Catholic Charities operate according to "break-even budgets," the possibility of fines require these plaintiffs to set aside funds which, consequently, cannot be used to fund other initiatives or services. Indeed, these initiatives and existing services may need to be cut.
D. CHSLI Catholic Health Services of Long Island ("CHSLI") is a non-profit organization that oversees Catholic health care organizations within the Diocese, including six hospitals, three nursing homes, and a hospice service. Neither CHSLI nor its member institutions condition employment or receipt of medical services on being Catholic. CHSLI operates a self-insured health plan for its employees and employees of its member institutions, underwriting the plan while contracting with third parties for administration of the plan. The plan covers approximately 25,000 people. Consistent with Catholic teaching, CHSLI's plan does not cover abortifacients, sterilization, or contraception. Because CHSLI
11

made certain plan design changes, including increasing certain copayment requirements beyond allowable limits, its plan does not enjoy grandfathered status. Although they are non-profit organizations, CHSLI and its member institutions are not covered by the relevant Internal Revenue Code provisions so as to be eligible for the religious employer exception. But because CHSLI claims to fall within the scope of the safe harbor, the Coverage Mandate will apply to it for the plan year beginning January 1, 2014.
Like the other plaintiffs, CHSLI points to current harms relating to its preparations for possibly changing its plan, budgeting for possible fines, and diverting funds from capital plans. CHSLI claims to require a full year of lead time to make changes to its health plan and that it could face up to $400 million per year in possible exposure to fines. CHSLI argues that these fines would imperil its ability to continue to operate and that it cannot, pursuant to its legal obligations as a health care provider, restrict its services to Catholics so as to fall within the religious employer exemption.
Moreover, CHSLI claims to face unique harms because of its dealings with employee unions, specifically the New York State Nurses Association ("NYSNA"). CHSLI negotiated with NYSNA so that the nurses at one CHSLI institution, St. Joseph Hospital, would receive health coverage through the NYSNA plan and so that the coverage they received through the NYSNA plan would be consistent with Catholic teachings on abortion, contraception, and sterilization. Each pay period, CHSLI transfers funds to the NYSNA plan to provide benefits for these nurses. NYSNA informed CHSLI that, because of the Coverage Mandate, it can no longer administer its plan in a manner that is consistent with Catholic teachings. CHSLI is evaluating whether to bring the nurses under CHSLI's self-insured plan. Doing so will likely increase the costs ofCHSLI's health care costs and may require CHSLI to pay concessions to NYSNA.
12

Further, CHSLI was considering moving nurses at another hospital from its own self-insured plan to the NYSNA plan because doing so would save CHSLI approximately $1 million. But because NYSNA must comply with the Coverage Mandate, CHSLI has abandoned its plan to transition coverage and must forgo the cost savings. CHSLI suspects that other unions will take similar positions.
DISCUSSION The gravamen of defendants' motion to dismiss is that this Court lacks the authority to adjudicate plaintiffs' claims for two reasons: first, plaintiffs do not have standing to assert their claims because the Coverage Mandate is not causing plaintiffs an imminent injury; and, second, plaintiffs' case is not ripe because of the proposed changes to the Coverage Mandate. In considering defendants' motion, the Court is not writing on a blank slate. Lawsuits challenging the Coverage Mandate have been brought in numerous district courts and six courts have already explicitly addressed the jurisdictional arguments that defendants advance here. First, in Nebraska v. Dep't of Health & Human Servs., _F. Supp. 2d _, 2012 WL 2913402 (D. Neb. July 17, 2012), a group of states, Catholic institutions, and individuals brought suit challenging the Coverage Mandate. With regard to the institutional and individual plaintiffs, the court found that those plaintiffs did not adequately allege that their health plans were not grandfathered and, thus, failed to plead that they were subject to the Coverage Mandate. As a
result, the court concluded that they lacked standing. Id. at *12-15.5 Although the Nebraska
court did not need to reach the issue, it also concluded that even if plaintiffs had standing, their claims were not ripe because the Departments were still "modify[ing] their positions" and plaintiffs did not face imminent or inevitable hardship "in light of the temporary enforcement
5 The Nebraska court also dismissed the states' claims on constitutional and prudential standing grounds, but these holdings are not pertinent to the instant motion.
13

safe harbor and the ANPRM." Id. at *22-23. In Belmont Abbey Coli. v. Sebelius, _F. Supp. 2d _, 2012 WL 2914417 (D.D.C. July
18, 2012), defendants sought to dismiss a challenge to the Coverage Mandate brought by a Catholic college on standing and ripeness grounds. Unlike in Nebraska, plaintiff in Belmont Abbey had sufficiently alleged that its health plan was ineligible for grandfathered status. Id. at *7. Additionally, the Belmont Abbey court concluded that the temporary enforcement safe harbor did not render plaintiffs injury "too remote" to destroy standing. Id. at *9. The court nonetheless held that plaintiff lacked standing, reasoning that "[b]ecause an amendment to the final rule that may vitiate the threatened injury is not only promised but underway, the injuries alleged by plaintiff are certainly not impending." Id. at *10 (internal quotation marks omitted). Additionally, the court ruled that the case was not ripe in part because defendants' position was "not sufficiently final to render the regulation 'fit' for judicial review. Id. at *13.
In Wheaton Coll. v. Sebelius, _F. Supp. 2d _, 2012 WL 3637162 (D.D.C. Aug. 24, 2012), the court similarly dismissed a Catholic college's claims for lack of standing and lack of ripeness, reasoning that the application of the Coverage Mandate to plaintiff remained "hypothetical." ld. at *9. Likewise in Legatus v. Sebelius, _F. Supp. 2d _, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012), the court followed Belmont Abbey and Wheaton Coll. and denied a Catholic non-profit organization's request for a preliminary injunction, reasoning that the organization lacked standing to challenge because its injury was "conjectural." Id. at *5. However, the Legatus court granted a preliminary injunction in favor of two other plaintiffs, an individual Catholic business owner and his business, who were not eligible for the temporary enforcement safe harbor. ld. at *15.6
6 Indeed, two other courts have granted preliminary injunctions in favor of plaintiffs who are not eligible for the temporary enforcement safe harbor and, consequently, must comply with the Coverage Mandate for plan years
14

In Catholic Diocese ofNashville v. Sebelius, No. 12-cv-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012), the court also followed Nebraska, Belmont Abbey, and Wheaton Coli. in dismissing plaintiffs' claims. The Nashville court "expressly" found that ''the preventative services regulations, in their current form, will not be enforced against Plaintiffs." Id. at *3. Further, the court echoed Belmont Abbey in concluding that, because of the ANPRM, "the injuries alleged by Plaintiffs are not 'certainly impending.'" Id. at *4. Although it did not need to reach the issue, the Nashville court also concluded that plaintiffs' claims were not ripe. Id. at *5. Finally, in Zubik v. Sebelius, No. 12-cv-676, 2012 WL 5932977, at *1 (W.D. Pa. Nov. 27, 2012), the court also followed Belmont Abbey and held that in light of the Departments' "commitment not to enforce the challenged regulations against Plaintiffs while accommodations are under consideration, and in any event no sooner than January 2014, Plaintiffs' claims are not ripe for judicial review and that Plaintiffs have not alleged an injury in fact under existing law sufficient to establish standing." I. The 12(b)(l) Standard
"The burden of demonstrating subject matter-jurisdiction lies with the party asserting it." MLC Fishing, Inc. v. Velez, 667 F.3d 140, 141 (2d Cir. 2011) (quoting Mathirampuzha v. Potter, 548 F.3d 70, 85 (2d Cir. 2008). "In a motion to dismiss pursuant to [Rule] 12(b)(1), the defendant may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001). As the court noted in Doyle v. Midland Credit Mgmt., No. 11-cv-5571, 2012 WL 5210596, at *1 (E.D.N.Y. Oct. 23, 2012), "[w]hen evaluating a motion to dismiss under Rule 12(b)(1), the court
beginning on or after August 1, 2012. Tyndale House Publishers. Inc. v. Sebelius, _F. Supp. 2d __, 2012 WL 5817323 (D.D.C. Nov. 16, 2012); Newland v. Sebelius, _F. Supp. 2d __, 2012 WL 3069154 (D. Colo. July 27, 2012). But see O'Brien v. Dep't of Health and Human Servs., _F. Supp. 2d_, 2012 WL4481208 (E.D. Mo. Sept. 28, 2012) (dismissing a secular, for-profit company's claims for declaratory and injunctive relief).
15

must distinguish between two types of challenges." On one hand, facial challenges contest "the
sufficiency of the jurisdictional facts alleged, not the facts themselves." Poodry v. Tonawanda
Bank ofSenenca Indians, 85 F.3d 874,987 n.15 (2d Cir. 1996). On the other hand, factual
challenges "dispute[] the accuracy of the facts alleged in the complaint or otherwise suggest that
the district court in fact lacks subject matter jurisdiction." Doyle, 2012 WL 5210596, at *1
(citing Robinson, 269 F.3d at 140). See also Guadagno v. Wallack Adler Levithan Assocs., 932
F. Supp. 94, 95 (S.D.N.Y. 1996) (contrasting a facial challenge, which is "based on the
pleadings," with a factual challenge, which is "based on extrinsic evidence.").
When deciding a facial challenge to jurisdiction, the court "accept[s] as true all material
allegations of the complaint, and must construe the complaint in favor ofthe complaining party."
Carver v. City ofNew York, 621 F.3d 221,225 (2d Cir. 2010) (quoting W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)). 7 But, in a factual challenge,
"where evidence relevant to the jurisdictional question is before the court, the district court ...
may refer to [that] evidence." Robinson, 269 F.3d at 140 (alterations in original, internal
quotation marks omitted). See also Engel v. Scully & Scully, Inc., 279 F.R.D. 117, 123
(S.D.N.Y. 2011) ("When deciding a motion to dismiss pursuant to Rule 12(b)(1) ... a district
court 'may resolve disputed factual issues by reference to evidence outside the pleadings,
including affidavits."' (quoting State Emps. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77
7 There is some inconsistency in the authorities concerning whether, on a facial challenge to subject matter jurisdiction, the court should construe the allegations in the complaint in a plaintiffs favor. Contrary to Carver, another line of cases in the Second Circuit provides that, in deciding a motion for lack of subject matter jurisdiction, courts "are not to draw inferences from the complaint favorable to plaintiffs." See J.S. ex rei N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). See In re Park Ave. Radiologists, P.C., 450 B.R. 461,467 n.6 (Bankr. S.D.N.Y. 2011) (observing the conflicting lines of Second Circuit cases). Because Carver addresses a standingbased challenge to subject matter jurisdiction, the issue at the core of this motion, and there is precedent specific to standing that allows "each element ... [to] be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation[,] Carver, 621 F.3d at 225 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 1230, 1236 (1992)), the Court follows Carver. This distinction is ultimately not material for this motion, though, because the Court engages in a factual inquiry, rather than a facial one.
16

n.4 (2d Cir. 2007)). When deciding a factual challenge to subject matter jurisdiction, "the burden is on the
plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts." Guadagno, 932 F. Supp. at 95. See also In re Rhodia S.A. Sec. Litig., 531 F. Supp. 2d 527, 537 (S.D.N.Y. 2007) ("the burden of proving jurisdiction is on the party asserting it ... to make a prima facie showing of jurisdiction.") (quoting Robinson v. Overseas Military Sales Com., 21 F.3d 502, 507 (2d Cir. 1994)). Whereas a court's task on a facial challenge is to assess the adequacy of a plaintiff's allegations ofjurisdiction, factual challenges require a court to assess the adequacy of a plaintiff's showing ofjurisdiction and "that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129,131 (2dCir. 1998).
Here, defendants argue that because they "challenge jurisdiction on the face of the Complaint, the Complaint must plead sufficient facts to establish that jurisdiction exists." In other words, defendants purport to bring a facial challenge to plaintiffs' claims. In response to defendants' motion, plaintiffs supply several affidavits that support and amplify the factual allegations in the complaint on which plaintiffs' base their claim of subject matter jurisdiction. In light ofthis extrinsic evidence, the Court has conducted a factual analysis of the sufficiency of plaintiffs' showing of subject matter jurisdiction. Therefore, even though some ofthe arguments advanced by the parties, as described below, speak in terms of plaintiffs' allegations, the Court has considered entire factual record before it, which is largely undisputed. II. Standing
The issue at the heart of defendants' motion is whether plaintiffs have standing under Article III ofthe Constitution. "In its constitutional dimension, standing imports justiciability:
17

whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of [Article III]. This is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490,498, 95 S. Ct. 2197, 2205 (1975). "If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claims." Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).
As it is an element of the federal courts' subject matter jurisdiction, plaintiffs bear the burden of establishing standing. See Johnson v. Bryson, 851 F. Supp. 2d 688, 699 (S.D.N.Y. 2012). "To meet the Article III standing requirement, a plaintiff must have suffered an 'injury in fact' that is 'distinct and palpable'; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision." Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (quoting Lujan, 504 U.S. at 560-61, 112 S. Ct. at 2136). An injury in fact is "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Connecticut v. Physicians Health Servs. of Conn. Inc., 287 F.3d 110, 116 (2d Cir. 2002) (quoting Lujan, 504 U.S. at 560, 112 S. Ct. at 2136). "A threatened injury must be 'certainly impending' to constitute injury in fact." Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724-25 (1990).
The Second Circuit has commented that "[i]njury in fact is a low threshold, which we have held need not be capable of sustaining a valid cause of action, but may simply be the fear or anxiety of future harm." Ross v. Bank of America, N.A., 524 F.3d 217, 222 (2d Cir. 2008) (internal quotation marks omitted). Injury in fact may be based on economic or non-economic interests. A plaintiff"may have a spiritual stake in First Amendment values sufficient to give
18

standing to raise issues concerning the Establishment Clause and the Free Exercise Clause." Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90S. Ct. 827, 830 (1970). "A plaintiff bringing a pre-enforcement facial challenge against a statute need not demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that it has 'an actual and well-founded fear that the law will be enforced against' it." Vermont Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (quoting Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S. Ct. 636, 643 (1988)).
The parties do not dispute that a favorable judicial decision would redress plaintiffs' injuries. Rather, defendants seek to dismiss the complaint based on plaintiffs' supposed failure to demonstrate that the Coverage Mandate will cause them actual or imminent injuries in fact and that any such injuries are fairly traceable to defendants' actions. Defendants advance three principal challenges to plaintiffs' ability to demonstrate standing: First, defendants argue that the Coverage Mandate, as applied to plaintiffs, will not cause any change in practices and, therefore, cannot cause injury, because certain plaintiffs' plans are grandfathered and other plaintiffs' plans already cover contraceptives. Second, defendants claim that any harm that plaintiffs may incur is too distant temporally to constitute an imminent injury. Third, defendants argue that, as a result of the ANPRM, plaintiffs' injury is only speculative and, thus, not certainly impending.
A. The Coverage Mandate and Plaintiffs' Practices I. Grandfathered Status
At the outset, defendants argue that three plaintiffs (Diocese, Catholic Charities, and ArchCare) fail to "allege with sufficient particularity" in the complaint "that their health plans are not grandfathered." Since the Coverage Mandate does not apply to grandfathered plans, see 42 U.S.C. § 18011(a)(2), defendants contend that Diocese, Catholic Charities, and ArchCare
19

cannot suffer an injury in fact fairly traceable to the Coverage Mandate if they are exempt from its requirements and do not need to change their current coverage. Defendants contrast the "threadbare allegations" put forth by the Diocese, Catholic Charities, and ArchCare with the Archdiocese's and CHSLI's allegations concerning grandfathering, which provide that these plaintiffs' plans are not grandfathered because of increases in employee contribution and copayment requirements.
Since, however, on a motion to dismiss for lack of standing, the Court need not confine its inquiry to the allegations in the complaint, see Engel, 279 F.R.D. at 123, the Court also looks to the affidavits submitted by plaintiffs in support of their briefing on this motion, which provide additional information on their plans. ArchCare represents that its plan is not eligible for grandfathered status because "the employee cost share increased by more than 5% effective January 1, 2012." The Diocese and Catholic Charities (which share the same plan) represent that they made "plan design changes," including an increase in "cost sharing for employees ... which caused the Plan to lose its grandfathered status in 2011." Defendants argue that these affidavit statements are still insufficient to establish standing because an increase in cost-sharing does not necessarily prevent a plan from maintaining grandfathered status under 45 C.F.R. § 147.140(g).
Defendants' argument notwithstanding, an increase in a percentage cost-sharing requirement does cause a plan to cease being grandfathered under § 147.140(g)(ii). Since ArchCare enacted a 5% increase in its employees' share, it has sufficiently demonstrated that its plan is not grandfathered.
The Diocese and Catholic Charities present a closer question. The law is clear that "a 'naked assertion' that a plan does not satisfy the legal definition of 'grandfathered health plans' is not sufficient" to establish standing. Nebraska, 2012 WL 2913402, at *12. Therefore, the
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Court does not credit the conclusory assertion that the Diocese's and Catholic Charities' plan is
not grandfathered. The only facts that the Diocese and Catholic Charities provide to support
their contention is that the plan made a change to an unspecified employee cost-sharing
requirement. But defendants are correct that all cost-sharing increases do not cause a plan to lose
grandfathered status under § 147.140(g). Based on the unadorned reference to a cost-sharing
increase, the Court simply cannot determine whether the relevant plan is eligible or ineligible for
grandfathered status. Therefore, the Court concludes that the Diocese and Catholic Charities
have failed to satisfy their burden of establishing that the Coverage Mandate applies to them and their claims are dismissed for lack of standing.8
2. Plaintiffs' Existing Contraceptive Coverage
Defendants also note that two plaintiffs (Archdiocese and ArchCare) fail to state in the
complaint whether their current health plans cover contraceptive services and contend that the
Coverage Mandate cannot cause these plaintiffs an injury in fact if the Archdiocese and
ArchCare already cover contraceptive services. Plaintiffs' affidavits, however, clarify that
neither the Archdiocese nor ArchCare provide contraceptive coverage to the extent required by
the Coverage Mandate. The Archdiocese explains that its "employee health plan complies with
Catholic teachings on abortifacients, sterilization, and contraception" and that "abortion and
sterilization are not covered." Further, "[c]ontraceptives are also barred under the plan, but may
be available for medically necessary, non-contraceptive purposes" subject to a three-step appeal
8 Since the Diocese and Catholic Charities have not established that the Coverage Mandate applies to them at all, they have also failed to demonstrate that they will face any of the harms that arise from the operation of the Coverage Mandate, whether conducting an intrusive inquiry to determine if they fall within the scope of the religious employer exemption or incurring costs to prepare for the Coverage Mandate going into effect. They could, conceivably, argue that they are nonetheless harmed because they cannot make certain changes to their current plan without jeopardizing their grandfathered status. Indeed plaintiffs in other actions have made such an argument. See Nebrask!!, 2012 WL 2913402, at* 12-13. The Diocese and Catholic Charities have not, however, advanced this theory, maintaining instead that they are ineligible for grandfathering. And, in any event, the Diocese and Catholic Charities have not provided sufficient facts to demonstrate that they will suffer a concrete harm even if their plan is considered grandfathered.
21

process. ArchCare's plan similarly does not cover abortion or sterilization and only covers contraceptives for certain medically-necessary, non-contraceptive purposes subject to an approval procedure. Defendants' argument is, therefore, unavailing.
B. The Enforcement Safe Harbor and Imminent Injury Defendants next argue that those plaintiffs whose plans are ineligible for grandfathered status have not demonstrated an imminent injury because, in light of the temporary enforcement safe harbor, they are protected from any enforcement actions for failure to comply with the Coverage Mandate until January 1, 2014. According to defendants, this delay before any enforcement actions could be brought renders any injury to plaintiffs too temporally distant to be considered imminent. In support, defendants cite McConnell v. FEC, 540 U.S. 93, 124 S. Ct. 619 (2003). In McConnell, a Senator brought suit to challenge a statute regulating campaign advertisements. Since the statute could not have affected the Senator's actions until five years into the future, the Supreme Court concluded that the "alleged injury in fact is too remote temporally to satisfy Article III standing." Id. at 226, 124 S. Ct. at 708. Defendants' reliance on McConnell is unavailing. Despite the Supreme Court's language, it was not simply the temporal distance between the lawsuit and the future injury that made the injury insufficiently imminent to support standing. Rather, in McConnell, the court "could not know whether the plaintiffs would even suffer an injury six years later." Thomas More Law Ctr. v. Obama, 651 F.3d 529, 538 (6th Cir. 2011), abrogated on other grounds, Nat'l Fed'n oflndep. Bus. v. Sebelius, _U.S._, 132 S. Ct. 2566 (2012). As the Sixth Circuit explained, "[t]he challenged provision would affect the McConnell plaintiffs only if the following things happened in an election six years later: (1) a challenger ran in the primary or election; (2) the plaintiff created an advertisement mentioning the challenger; (3) the
22

advertisement did not identify the plaintiff by name; and (4) the broadcasters attempted to charge McConnell more than their lowest unit rate for his ads." Id. Indeed, when determining whether an injury is sufficiently imminent for Article III standing purposes, courts focus "on the probability ofharm, not its temporal proximity." 520 S. Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006). See also Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 343 (2d Cir. 2009) ("In describing imminence, the [Lujan] Court was not imposing a strict temporal requirement that a future injury occur within a particular time period following the filing of the complaint. Instead, the Court focused on the certainty of that injury occurring in the future, seeking to ensure that the injury was not too speculative.").
Here, the temporary enforcement safe harbor does nothing to reduce the certainty that plaintiffs will suffer injury from the Coverage Mandate in the future. All the safe harbor does is postpone the date by which plaintiffs must comply with the Coverage Mandate or suffer penalties. That deadline is looming and certain. See Reg'l Rail Reorganization Act Cases, 419 U.S. 102, 143,95, S. Ct. 335,358 (1974) ("Where the inevitability ofthe operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.") For these reasons, the Belmont Abbey court concluded that "the temporary-enforcement safe harbor does not render the alleged injury too remote to constitute an injury[.]" 2012 WL 2914417, at *9. This Court agrees.
Further, the delay until the Coverage Mandate will be enforced against plaintiffs- just over a year- is short when compared to other cases where standing was established. Several courts have found that found that injuries occurring three, six, or even thirteen years in the future can be sufficiently imminent for standing purposes. See Thomas More Law Ctr., 651 F.3d at 537
23

(collecting cases). Indeed, when the minimum coverage provision of the ACA (the "Individual Mandate") was being challenged in the courts, the government - including many of the same defendants in this action - conceded that an injury that would not occur for over two years was sufficient for standing. Florida ex rei Attorney Gen. v. Dep't of Health and Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011), reversed on other grounds, Nat'l Fed'n oflndep. Bus. v. Sebelius, _U.S._, 132 S. Ct. 2566 (2012). Therefore, the Court concludes that the temporary enforcement safe harbor does not prevent plaintiffs from establishing imminent injuries for standing purposes.
C. The ANPRM and Certainly Impending Injury Defendants' central argument is that plaintiffs' injuries are not certainly impending because, through the ANPRM, the Departments will change the requirements of the Coverage Mandate before the end of the temporary enforcement safe harbor in order to accommodate the interests of religious organizations like plaintiffs. In this sense, defendants contend that plaintiffs' injuries are not imminent because it is unlikely that they will come to pass. Further, since the "underlying purpose of the imminence requirement is to ensure that the court ... does not render an advisory opinion in a case in which no injury would have occurred at all[,]" Animal Legal Defense Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C. Cir. 1994) (internal quotation marks omitted), the prospect that the ANPRM will prevent any injury from befalling plaintiffs undermines their standing. On the other hand, plaintiffs characterize the ANPRM as merely stating the Departments' intention to change the Coverage Mandate. Because the Coverage Mandate remains in effect notwithstanding the ANPRM, plaintiffs still face future injuries stemming from their forced choice between incurring fines or acting in violation of their religious beliefs. Additionally,
24

plaintiffs explain that having to prepare for fines or changes to their employee health coverage is presently causing them to incur costs, divert resources, and forgo savings.
Courts have been receptive to defendants' argument, although they sometimes address it in the context of ripeness rather than standing. The Belmont Abbey court agreed with the Departments that any injury was "too speculative to confer standing given the government's clear intention to amend the regulation before the safe harbor lapses." 2012 WL 2914417, at *9. See also Zubik, 2012 WL 5932977, at *11 ("the Court must agree with Defendants that any injury from enforcement of the preventative care regulations after the safe harbor expires is purely speculative, as Defendants have formally declared their intention to amend the preventative care regulations before that time in order to accommodate the concerns of religious organizations"); Nashville, 2012 WL 5879796, at *3 ("the Court expressly finds ... that the preventive services regulations, in their current form, will not be enforced against Plaintiffs"); Legatus, 2012 WL 5359630, at *5 (agreeing with other cases that because of the temporary enforcement safe harbor and the ANPRM, plaintiffs "injury is conjectural"); Wheaton Coll., 2012 WL 3637162 at *8 (noting that "the regulations Wheaton challenges are being amended precisely in order to accommodate Wheaton's concerns"); Nebraska, 2012 WL 2913402, at *23 ("this forced choice is neither imminent nor inevitable in light of the temporary enforcement safe harbor and the ANPRM").
Defendants do not dispute that plaintiffs are presently incurring costs in connection with their preparation for the Coverage Mandate going into effect. Instead, defendants argue that because the ANPRM means that the plaintiffs are unlikely to face injury from the Coverage Mandate in the future, plaintiffs should not be able to "transform the speculative possibility of future injury into a concrete current injury for standing purposes by asserting that they have to
25

plan now for their future needs." Courts have also been receptive to this argument. Belmont Abbey, 2012 WL 2914417, at *14 ("Costs stemming from Plaintiffs desire to prepare for contingencies are not sufficient, however, to constitute hardship ... particularly when the agency's promises and actions suggest the situation Plaintiff fears may not occur."); Zubik, 2012 WL 5932977, at *11 (same); Wheaton Coll., 2012 WL 3637162 at *8 (same). See also Nebraska, 2012 WL 2913402, at *23 ("plaintiffs' desire to plan for future contingencies that may never arise does not constitute the sort ofhardship that can establish the ripeness of their claims"); Nashville, 2012 WL 5879796, at *5 (same).
The key issue, therefore, is whether, despite the fact that plaintiffs are facing current and future harms in connection with the Coverage Mandate, constitutional standing is lacking because defendants have committed to amending the Coverage Mandate through the ANPRM. Indeed, the applicability of the ANPRM explains the split in the cases addressing the Coverage Mandate that have been decided thus far. Courts have issued preliminary injunctions in favor of for-profit plaintiffs challenging the Coverage Mandate because the ANPRM and the temporary enforcement safe harbor were not at issue. See Tyndale House Publishers, 2012 WL 5817323; Legatus, 2012 WL 5359630, at *15; Newland, 2012 WL 3069154. But where the ANPRM was applicable, courts have found standing to be lacking. See Zubik, 2012 WL 5932977; Nashville, 2012 WL 5879796; Legatus, 2012 WL 5359630, at *5; Wheaton Coll., 2012 WL 3637162; Belmont Abbey, 2012 WL 2914417.
In addressing the significance of the ANPRM, the Court must navigate between two competing considerations. On one hand, an agency should not be allowed to burden regulated entities with prospective regulation but be able to avoid judicial review of the regulation simply by representing that its view has not finalized and that the regulation may be amended. See Am.
26

Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) ("[A]gencies cannot avoid judicial review of their final actions merely because they have opened another docket that may address some related matters."). On the other hand, a plaintiff should not be able to manufacture standing by merely asserting a need to prepare for uncertain future harms because, as defendants argue, "[s]uch reasoning would gut [the] standing doctrine." With these concerns in mind, the Court turns to the operation of the ANPRM and the specific harms to plaintiffs.
The Court will assume that the Departments issued the ANPRM in good faith and not as litigation posturing. See Sossamon v. Texas, 560 F.3d 316, 325 (5th Cir. 2009) ("Without evidence to the contrary, we assume that formally announced changes to official government policy are not mere litigation posturing."). But the ANPRM is not a "formally announced change[] to official government policy." Despite defendants' attempt to characterize the ANPRM as a binding promise not to enforce the Coverage Mandate, the fact is that the ANPRM does not prevent the Coverage Mandate, as it currently exists, from going into effect. It is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the Coverage Mandate. The Departments need not make any changes to the Coverage Mandate to accommodate religious groups at all.9
In this light, the Court finds that plaintiffs' claimed future injuries are certainly impending. The law as it currently written requires that, beginning January 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs. The Departments may alter the Coverage Mandate before that time, but the possibility of a change in the law does not mean that a requirement that will become effective by operation of law is not
9 Plaintiffs contend that any possible accommodation that the Departments provide pursuant to the ANPRM will be inadequate. The Court agrees with defendants and rejects this argument as speculative since it is uncertain what form the accommodation, if any, will take. See Wheaton Coli., 2012 WL 3637162, at *8 ("Wheaton only tilts at windmills when it protests that it will not be satisfied with whatever amendments defendants ultimately make.").
27

certainly impending. Cf. Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 77, 86 S. Ct. 194, 198 (1965) ("the mere contingency that the Attorney General might revise the regulations at some future time does not render premature [a] challenge to the existing requirements"). Thus, plaintiffs' future injuries are sufficiently imminent to constitute injuries in fact. Further, as long as an "agency's act creates a substantial probability of an injury in fact, the causation requirement of Article III is satisfied." Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d 1462, 1465 (D.C. Cir. 1989) (internal quotation marks omitted). By issuing the Coverage Mandate, the Departments have created a substantial possibility of enforcement and, for the reasons discussed, the ANPRM does nothing to eliminate it. Therefore, the Court concludes that, notwithstanding the ANPRM, plaintiffs have standing to bring this suit based on their future injuries.
Despite defendants' numerous assertions that the Coverage Mandate will not be enforced, plaintiffs remain prospectively subject to the Coverage Mandate notwithstanding the ANPRM, and, thus, plaintiffs have articulated "an actual and well-founded fear" that the law will be enforced against them. See Am. Booksellers Ass'n, 484 U.S. at 393, 108 S. Ct. at 643. The possibility of a future amendment to the Coverage Mandate that relieves plaintiffs from their obligation to cover contraceptive services and renders this action moot is speculative and is not sufficient to make plaintiffs' claims non-justiciable. See CSI Aviation Servs., Inc. v. Dep't of Transp., 637 F.3d 408, 412 (D.C. Cir. 2011) (rejecting an agency's mootness argument based on a promised rulemaking where the existing agency action already "imposed an immediate and significant burden").
The Court appreciates that other courts have held otherwise. Nevertheless, I conclude that those courts overestimate the significance of the ANPRM and underestimate the finality of
28

the Coverage Mandate. For example, the Nashville court concluded that "the preventive services regulations, in their current form, will not be enforced against Plaintiffs," 2012 WL 5879796, at *3, and the Legatus court remarked that "Legatus asks the court to enjoin the Government from enforcing a rule that is not yet finalized[.]" 2012 WL 5359630, at *5. I do not see the basis for such holdings. This case has been pending for six months. The earliest case challenging the Coverage Mandate was commenced over a year ago. The ANPRM was announced nearly ten months ago and entered in the Federal Register over eight months ago. In that time, the Departments have had ample opportunity to enact a meaningful change to the Coverage Mandate. 10 The fact that they have not further suggests the likelihood of injuries to plaintiffs.
The Coverage Mandate is a final rule, see 77 Fed. Reg. 8,730 (adopting the Interim Final rules "as a final rule without change"), and the ANPRM has not made the Coverage Mandate any less binding on plaintiffs. Therefore, this is not a case where an enforcement action is only "remotely possible" or plaintiffs' concerns are "imaginary or speculative." See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298-99, 99 S. Ct. 2301, 2309 (1979).
Even if plaintiffs' future harms were not sufficiently imminent to be considered injuries in fact, the Court would find that plaintiffs have standing because the Coverage Mandate is causing plaintiffs to suffer present harm. First, the impending effectiveness of future regulations can cause present effects that are sufficient to create standing. For example, in cases where plaintiffs challenged the Individual Mandate of the ACA prior to its effective date, courts focused on "the immediate economic pressure" on plaintiffs "as a direct result of the [I]ndividual [M]andate." Goudy-Bachman v. Dep't ofHealth & Human Servs., 764 F. Supp. 2d 684,691 (M.D. Pa. 2011). Courts found that plaintiffs had standing because they were already incurring
10 Indeed, on August 15, 2012, HHS reissued a bulletin originally issued on February 10, 2012 to clarify certain substantive issues concerning the temporary enforcement safe harbor.
29

the opportunity costs of having to purchase health insurance- such as not purchasing a new car, reducing spending, or diverting money from other business goals. Id. at 691-92. See also Butler v. Obama, 814 F. Supp. 2d. 230, 236-37 (E.D.N.Y. 2011) (collecting cases where standing was found based on plaintiffs' allegations of"some current financial injury based upon their preparation for the implementation of the [I]ndividual [M]andate").
Although, as defendants point out, there was no question that the Individual Mandate would be put into effect, numerous cases have also recognized that uncertain future harms can have present effects that are sufficient for standing purposes. For example, in Lac Du Flambeau Bank of Lake Superior Chippewa Indians v. Norton, 422 F.3d 490 (7th Cir. 2005), plaintiff, a Native American tribe, alleged that it was placed at a disadvantage in seeking permission to operate a casino because of an arrangement between Wisconsin and another tribe. Although defendants argued that plaintiff could not show an injury in fact based on this disadvantage because there was "no guarantee" that plaintiff would receive the administrative approval that was a necessary precondition of its application, the Seventh Circuit concluded that plaintiff had standing to bring the suit. Id. at 495, 498. It reasoned that "the chance that the Secretary might deny [plaintiffs] application does not render plaintiffs injury speculative" because "the present impact of a future, though uncertain harm may establish injury for standing purposes." Id. at 498. Specifically, the court noted that plaintiff needed to attract investors years in advance in order to finance its casino and the disputed compact impaired its ability to do so and increased its capital costs. Id. at 499.
Likewise, in Clinton v. City ofNew York, 524 U.S. 417, 118 S. Ct. 2091 (1998), the Supreme Court found Article III's standing requirements satisfied where allegedly speculative harms caused plaintiffs present injury. One item at issue was a contingent liability faced by New
30

York City that had been revived through the President's use of a line item veto. The Supreme
Court held that New York had standing to challenge the line item veto, even though a pending
administrative action could waive the contingent liability, because "[t]he revival of a substantial
contingent liability immediately and directly affects the borrowing power, financial strength, and
fiscal planning ofthe potential obligor." Id. at 431, 118 S. Ct. at 2099.
Plaintiffs here have established similar present harms stemming from the future operation
of the Coverage Mandate. These harms range from budgeting and administrative costs incurred
in analyzing how to update their health plans once the Coverage Mandate becomes effective to
the diversion of funds away from ministries, such as healthcare, in order to prepare for possible
fines for failure to comply with the Coverage Mandate. Moreover, CHSLI faces the unique harm
of increased costs (and foregone cost savings) related to providing health care coverage to its
nurses because the NYSNA is no longer willing to provide coverage that does not include contraceptives in light of the Coverage Mandate. 11
In response, defendants rely on the ANPRM. They argue that "it is hard to fathom how
plaintiffs can reasonably incur costs planning for the effects of a not-yet promulgated regulation,
particularly one that is intended to accommodate concerns of the very type that plaintiffhas
raised." In other words, plaintiffs' preparation costs and resource diversions are urmecessary,
according to defendants, because the ANPRM makes it doubtful that the Coverage Mandate will
11 Although defendants have not raised this argument, the involvement of a third party, NYSNA, suggests that CHSLI's injury may not be fairly traceable to the Coverage Mandate. The Nashville court was receptive to such an argument. There, certain plaintiffs alleged current harm because their insurance carrier presently required the provision of contraceptive services notwithstanding the fact that plaintiffs fell within the safe harbor. The court concluded that this harm was not "fairly traceable" to the Coverage Mandate because it was a result of the insurer's refusal to honor the safe harbor. 2012 WL 5879796, at *4. Nashville is distinguishable from the facts here. Unlike the insurer in Nashville, NYSNA is not refusing to honor a portion of the Department's regulatory scheme. Instead, it is abiding by that scheme in refusing to provide insurance without contraceptive coverage. NYSNA's decision to abide by the law is what is causing CHSLI to face increased cost. The law is clear that, in the standing context, "[a] causal chain does not fail simply because it has several links, provided those links are not hypothetical or tenuous and remain plausible." Maya v. Centex Com., 658 F.3d 1060, 1070 (9th Cir. 2011) (internal quotation marks and alterations omitted). It is entirely plausible that a the harm caused by a third party's refusal to provide a cost-saving service it previously offered in order to comply with a new regulation is fairly traceable to that regulation.
31

apply to them. In support, defendants cite McConnell to argue that any injury plaintiffs suffer as a result of their preparation for the Coverage Mandate going into effect is a result of their own choice and, thus, not fairly traceable to defendants' conduct. Plaintiffs in McConnell alleged that a law raising hard-money campaign contribution limits placed them at a fundraising disadvantage because they did not wish to solicit large contributions for political reasons. The Supreme Court held that this disadvantage did not constitute "an injury in fact that is 'fairly traceable"' to the challenged law because plaintiffs' "alleged inability to compete stems not from the operation of [the statute], but from their own personal 'wish' not to solicit or accept large contributions, i.e., their personal choice." 540 U.S. at 228, 124 S. Ct. at 709.
The injuries that plaintiffs are suffering because of the Coverage Mandate are different. In McConnell, it was plaintiffs' personal preferences, rather than the statute, that placed them at a disadvantage. Here, however, the operation of Coverage Mandate has itself changed insurance requirements. Since each plaintiff employs numerous people, the practical realities of administering their employees' health care coverage require plaintiffs to undertake the preparations about which they now complain. Even though the ANPRM makes it uncertain that the Coverage Mandate will ultimately apply to them, plaintiffs persuasively argue that if they assume that the Coverage Mandate will be modified and guess wrong, given the timelines at issue, they will be unprepared for the onerous fines or other eventualities that occur when the Coverage Mandate goes into effect.
Defendants' arguments to the contrary ring hollow because defendants themselves acknowledged that employers will have to engage in advance preparation for the implementation of the ACA's provisions. In fact, defendants highlighted the preparations that employers will need to make as a reason for issuing the Interim Final Rules long before their effective date. As
32

the Interim Final Rules themselves explain:
[T]he requirements in these interim final regulations require significant lead time to implement. These interim final regulations require plans and issuers to provide coverage for preventative services listed in certain recommendations and guidelines without imposing any cost-sharing requirements.... With respect to the changes that would be required to be made under interim final regulations, group health plans and health insurance issuers subject to these provisions have to be able to take these changes into account in establishing their premiums, and in making other changes to the designs of plan or policy benefits, and these premiums and plan or policy changes would have to receive necessary approvals in advance of the plan or policy year in question.... Accordingly, in order to allow plans and health insurance coverage to be designed and implemented on a timely basis, regulations must be published and available to the public well in advance ofthe effective date ofthe requirements ofthe [ACA}.
75 Fed. Reg. 41,730 (emphasis added). Defendants cannot recognize employers' need for
advance preparation as a result of their actions in one context, but disclaim responsibility for
those preparations in another context.
Again, the Court recognizes that the other courts to have addressed this issue reached the
opposite conclusion. As stated in Belmont Abbey, "[c]osts stemming from Plaintiffs desire to
prepare for contingencies are not sufficient, however, to constitute hardship ... particularly
when the agency's promises and actions suggest the situation Plaintiff fears may not occur."
2012 WL 2914417, at *14. See also Zubik, 2012 WL 5932977, at *11 (same); Nashville, 2012
WL 5879796, at *5 (same); Wheaton Coli., 2012 WL 3637162, at *8 (same); Nebraska, 2012
WL 2913402, at *23 (same). Fundamentally, however, this Court cannot accept that the present
costs incurred by plaintiffs are simply the result of their "desire to prepare for contingencies."
Quite frankly, ignoring the speeding train that is coming towards plaintiffs in the hope that it will
stop might well be inconsistent with the fiduciary duties that plaintiffs' directors or officers owe
to their members. As explained above, the practical realities of administering health care
coverage for large numbers of employees- which defendants' recognize- require plaintiffs to
33

incur these costs in advance of the impending effectiveness of the Coverage Mandate. That is a business reality that any responsible board of directors would have to appreciate.
Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, "Trust us, changes are coming" clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction. See Florida Cannabis Action Network, Inc. v. City of Jacksonville, 130 F. Supp. 2d 1358, 1362 (M.D. Fla. 2001) ("The whim, self restraint, or even the well reasoned judgment of a government official cannot serve as the lone safeguard of First Amendment rights."). Considering the extraordinary political passion surrounding the Coverage Mandate from all sides, there is simply no way to predict what, if any, changes to the Coverage Mandate will be made, even if some policymakers favor certain changes.
As far as the contrary authority, plaintiffs in this action have made a more concrete and compelling showing of present injury than plaintiffs in most of the other cases that have addressed defendants' jurisdiction argument. The Wheaton Coll. court noted that Wheaton had failed to demonstrate any "specific present objective harm[.]" 2012 WL 3637162, at *7. The Wheaton Coll. complaint only alleged that Wheaton had to devote resources "to determining how to respond to the [Coverage] Mandate" and was burdened in its employee recruitment efforts because of uncertainty. Defendants argued that these allegations were insufficient to plead standing because they did not demonstrate why, in light of the ANPRM, Wheaton was expending its resources in this way. In Belmont Abbey, plaintiff also only claimed being disadvantaged in employee recruitment and having to devote resources to determining how to
34

respond to the Mandate. The harms at issue in Legatus only included being disadvantaged in
employee recruitment and the need to prepare for plan changes months in advance of the
implementation of the implementation of the Coverage Mandate. Plaintiff in Legatus did not,
however, claim that the operation of the Coverage Mandate increased its plan preparation costs.
Plaintiffs in Nashville only claimed that changes in their plans as a result of the Coverage
Mandate would require more lead time to implement than typical changes, that they were being
forced to "consider" limiting public services, and that they were placed at a disadvantage in
employee recruitment. Lastly, plaintiffs in Zubik described some concrete present harms,
including losing a specific applicant for a management position and having to indemnify a
coverage providers, but most of the harms at issue merely involved fear of future injury, such as the loss of government and charitable funding. 12
By contrast, plaintiffs here have demonstrated how the enormous changes to their plans
required by the Coverage Mandate currently exacerbate their preparation costs. They have also
demonstrated that the imminent operation of the Coverage Mandate has already caused them to
divert funds from their ministries and, in the case of CHSLI, face increased health care costs for
their employees.
Finally, by holding that the harms plaintiffs are currently incurring constitute injuries in
fact, the Court has not thrown open the floodgates to speculative, pre-enforcement suits as
defendants suggest. Although defendants are correct that "[e]very organization needs to plan for
12 In addition, some of the other cases addressing the Departments' jurisdiction argument have involved facial challenges to subject matter jurisdiction, rather than factual ones. Both the Nebraska, 2012 WL 2913402, at* II, and the Zubik, 2012 WL 5932977, at *5, courts construed the Departments' motions to dismiss as facial challenges, although the Zubik court, nonetheless, commented on matters set forth in plaintiffs' affidavits. The Nashville court appeared to conduct a facial inquiry, 2012 WL 5879796, at *3, and, accordingly, it centered its analysis on the allegations in the complaint. See also Wheaton Coli., 2012 WL 3637162 (analyzing plaintiffs allegations ~here plaintiff had not put additional facts before the court). The Belmont Abbey court, on the other hand, recogmzed that it was allowed to consider materials extrinsic to the complaint, 2012 WL 2914417, at *5, but its analysis still focused largely on the sufficiency of plaintiffs allegations. See also Legatus, 2012 WL 5359630 (analyzing facts alleged in the complaint and set forth in supporting papers).
35

the future, sometimes even for events that are unlikely to occur[,]" that truism does not imply that "an organization would have standing to challenge a future event that has one a one-percent chance of happening." The law remains that a threatened harm must be certainly impending to give rise to an injury in fact and this Court's holding does not undermine this limitation. The Court's holding- that preparatory costs in advance of the effective date of a binding regulation, which an agency acknowledges are necessary, can constitute certainly impending harms- is narrow and hardly seems likely to cause the courts to be inundated with actions based on speculative harms. III. Ripeness
Defendants' alternative ground for dismissal is that even if plaintiffs have standing to challenge the Coverage Mandate, their claims are not ripe for judicial review. "Ripeness is both a constitutional and a prudential doctrine." Friends of Hamilton Grange v. Salazar, No. 08 Civ. 5220,2009 WL 650262, at *17 (S.D.N.Y. Mar. 12, 2009). Although it is not entirely clear from their briefs, it appears that defendants' motion is based on prudential ripeness doctrine as they contend that the Court "should" dismiss this case as unripe, not that the Court must dismiss the case. See Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003) ("Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary.").
Prudential ripeness has to do with when a court should entertain a lawsuit, not whether it may entertain the suit. The prudential ripeness inquiry focuses on "whether the alleged policy at this stage is sufficiently definite and clear to permit sound review by this Court[.]" New York Civil Liberties Union v. Grandeau, 528 F.3d 122, 131 (2d Cir. 2008). There are two prongs to this inquiry, "requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs v. Gardner, 387 U.S.
36

136, 149, 87 S. Ct. 1507, 1515 (1967). 13 Ripeness analysis is similar to standing analysis. See Warth, 422 U.S. at 499 n. 10, 95 S.
Ct. at 2205 n.1 0 ("The standing question ... bears close affinity to questions of ripeness whether the harm asserted has matured sufficiently to warrant judicial intervention"). Like standing, ripeness doctrine "prevents a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur." Ross, 524 F.3d at 226. Where a defendant's "ripeness arguments concern only" the "requirement that the injury be imminent rather than conjectural or hypothetical" then "it follows that our analysis of [defendant's] standing challenge applies equally and interchangeably to its ripeness challenge." Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219,225-226 (2d Cir. 2006), abrogated on other grounds, Bond v. United
States, _u.s._, 131 s. Ct. 2355 (2011).
Defendants argue that plaintiffs' challenge to the Coverage Mandate is not fit for judicial review because the ANPRM initiated a process to amend the Coverage Mandate and, in the meantime, the temporary enforcement safe harbor protects plaintiffs from any hardship.
A. Fitness The fitness analysis concerns "whether the issues sought to be adjudicated are contingent on future events or may never occur." Isaacs v. Bowen, 865 F.2d 468, 478 (2d Cir. 1989). Courts have considered challenges to agency policies unfit for resolution where the challenge was "directed at possibilities and proposals only, not at a concrete plan which has been formally promulgated and brought into operation." Id. at 477. Consequently, courts distinguish between "pre-enforcement judicial review of specific regulations promulgated by the agency and judicial
13 Constitutional ripeness is evaluated using the same two-part analysis. Grandeau, 528 F.3d at 132 n.9.
37

review of a nonfinal proposed policy." Grandeau, 528 F.3d at 132 (internal quotation marks omitted).
Pre-enforcement challenges to a regulation may be fit for resolution when the regulation was "promulgated in a formal manner after announcement in the Federal Register" and is "quite clearly definitive[.]" Abbott Labs, 387 U.S. at 151, 87 S. Ct. at 1517. On the other hand, generally "[a] claim is not ripe where the possibility that further consideration will actually occur before [implementation] is not theoretical but real." Full Value Advisors v. S.E.C., 633 F.3d 1101, 1107 (D.C. Cir. 2011) (second alteration in original, internal quotation marks omitted).
For the reasons already discussed, the Court is of the opinion that the Coverage Mandate is "quite clearly definitive." It is not a non-final proposed policy; it is a final rule. See Zubik, 2012 WL 5932977, at *8 ("There is no doubt that the regulations challenged by Plaintiffs are 'clearly definitive' by virtue ofhaving been formally promulgated.") And although the Court will assume that the consideration that the Departments will conduct pursuant to the ANPRM is real, not merely theoretical, there is no way to tell where that will go; the ANPRM is not a "concrete" plan." It is, in fact, only "directed at possibilities." The Court realizes that declining review of agency actions that are being reconsidered by the agency affords "time for the challenging party to convince the agency to alter a tentative position" and "provides the agency an opportunity to correct its own mistakes and apply its expertise[.]" Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (internal quotation marks omitted). But the Coverage Mandate is not a "tentative" agency position.
Defendants cite Am. Petroleum Inst. for the proposition that even a final agency regulation may be considered a tentative position unfit for judicial review when the agency has undertaken to amend the regulation. Defendants' (and the other courts') reliance on Am.
38

Petroleum Inst. is misplaced. The amendments at issue in Am. Petroleum Inst. are significantly different from the ANPRM. While the original regulation provided that "spent refinery catalysts" were not included in a class of deregulated substances, the amendments proposed both the inclusion of the catalysts and the elimination of the entire deregulated class. In other words, the amendment constituted "a complete reversal of course on EPA's part that, if adopted, would necessitate substantively different legal analysis." Id. at 388. While the EPA's position could fairly be considered tentative in light of its substantive policy reversal, the ANPRM does not announce any similar reversal of policy. As defendants admit, the ANPRM "does not preordain what amendments to [the Coverage Mandate] defendants will ultimately promulgate[.]" Indeed, it is still possible that the Coverage Mandate as it is currently structured will become effective at the expiration of the safe harbor.
Therefore, the Court concludes that plaintiffs' challenge to the Coverage Mandate is fit for judicial review.
B. Hardship In assessing the hardship of withholding judicial consideration, courts "ask whether the challenged action creates a direct and immediate dilemma for the parties. The mere possibility offuture injury, unless it is the cause of some present detriment, does not constitute hardship." Grandeau, 528 F.3d at 134 (internal citations and quotation marks omitted). Rather, hardship is present "where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance[.]" Abbott Labs, 387 U.S. at 153, 87 S. Ct. at 1518. For the reasons discussed in the standing context, the Court concludes that the Coverage Mandate is causing plaintiffs at least some "some present detriment" and that plaintiffs'
39

preparations in order to avoid noncompliance (or budget for the penalties) are justified in light of the practical realities of the Coverage Mandate. Thus plaintiffs have adequately demonstrated hardship from withholding judicial review. Importantly, even if the Court were to find that the Coverage Mandate was not fit for review, plaintiffs' hardship would "outweigh[] the competing institutional interests in deferring review." See Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). See also Connecticut v. Duncan, 612 F.3d 107, 115 (2d Cir. 2010) (noting that hardship "alone can, if sufficiently weighty, render a claim ripe").
For this reason, defendants' (and the other courts') reliance on cases where hardship was not demonstrated is unavailing. For example, in Full Value Advisors, although the challenged disclosure regulations were operative, plaintiffs "allegedly proprietary information ha[d] not been disclosed publicly" and, thus, plaintiff "had not yet suffered any hardship as a result of the . . . disclosure requirements." 633 F.3d at 1107. Likewise, in Tex. Indep. Producers & Royalty Owners Ass'n v. EPA, 413 F.3d 479 (5th Cir. 2005), the EPA deferred the effective date of a rule and, during the deferral period, it intended to consider issues raised by plaintiffs. Although the court found petitioners' challenge to the rule unripe in part because the court did not want to "prematurely cut off the EPA's interpretative process[,]" the court also concluded that petitioners had not satisfied the hardship element of the ripeness test where the rule's effectiveness was delayed and the petitioners admitted that their industry - oil and gas exploration and production -"is unable to plan far in advance." Id. at 483. By contrast, the practical realities of administering employee health coverage require planning far in advance, as defendants admit.
The Court is mindful that litigating the merits of plaintiffs' challenge to the Coverage Mandate raises extremely important questions about the extent to which laws of general applicability must accommodate religious beliefs and that a crucial function of prudential
40

ripeness doctrine is to avoid "premature examination of ... constitutional issues that time may

make easier or less controversial." See Duncan, 612 F.3d at 114. At the same time, the

touchstone of prudential ripeness is that "the case will be better decided later and [] the parties

will not have constitutional rights undermined by the delay." Simmonds, 347 F.3d at 357.

Because the Court finds that the Coverage Mandate is sufficiently definite, notwithstanding the

ANPRM, and the operation of the Coverage Mandate is imposing costs on plaintiffs that they

claim a constitutional right to be free from, this is not a case the will be "better decided later."

The risk here of a fait accompli that would cause plaintiffs either financial or First Amendment

injury is simply too high.

The Court has no desire to interfere with or become entangled in the Departments' policy

debates. The Departments are, of course, free to amend the Coverage Mandate at any time and

the Court takes no position on whether any amendment is necessary or advisable. But the

Coverage Mandate has caused and will continue to cause plaintiffs harm so long as it remains in

place. The Departments' possible decision to amend their policies does not abrogate plaintiffs'

right to seek relief for their injuries.

CONCLUSION

Defendants' motion to dismiss for lack ofjurisdiction [16] is granted in part and denied

in part. The claims of the Diocese and Catholic Charities are dismissed for lack of standing.

Defendants' motion is otherwise denied.

SO ORDERED:

s/Brian M. Cogan

Dated: Brooklyn, New York December 4, 2012

41

 
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JONES DAY
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SEE ENDORSED ORDER LAST PAGE

BY ECF

July 24, 2013

The Honorable Brian M. Cogan United States District Judge United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Roman Catholic Archdiocese of New York et al v. Sebelius, No. 1:12-cv-02542BMC (E.D.N.Y.)

Dear Judge Cogan:

Further to the Court’s Order of July 12, 2013, plaintiffs and defendants have conferred and jointly submit the following letter to advise the Court of the parties’ agreement as to how they propose to proceed with this action.
First, defendants do not oppose plaintiffs amending their Complaint. Accordingly, pursuant to Fed. R. Civ. P. 15(a)(2) and the parties’ agreement, plaintiffs will file an Amended Complaint on or before August 14, 2013.
Second, the parties have agreed to a briefing schedule pursuant to which a motion by plaintiffs for a preliminary injunction will be fully briefed and submitted to the Court by September 25, 2013, and dispositive motions by both parties will be fully briefed and submitted to the Court by October 30, 2013. The parties propose for the Court’s approval the following schedule for submission of the papers in support of these motions:

August 14

Plaintiffs file a motion for a preliminary injunction and supporting papers (together with their Amended Complaint).

August 30

Defendants produce the administrative record in connection with the Final Rules.

September 11 Defendants file, with one memorandum of law in support, their (i) opposition to plaintiffs’ motion for a preliminary injunction; and (ii) motion to dismiss and/or for summary judgment.

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JONES DAY
The Hon. Brian M. Cogan July 24, 2013 Page 2

(The parties agree that the time for defendants to serve a pleading in response to the Amended Complaint is deferred, pursuant to Fed. R. Civ. P. 12(a)(4)(A), until after the Court renders a decision on defendants’ motion to dismiss and then an Answer would be filed only if necessary.)

September 25

Plaintiffs file, with one memorandum of law in support, their (i) reply brief in support of their motion for a preliminary injunction; (ii) opposition to defendants’ motion to dismiss and/or for summary judgment; and (iii) cross motion for summary judgment.

October 16

Defendants file, with one memorandum of law in support, their (i) opposition to plaintiffs’ cross motion for summary judgment; and (ii) reply in support of their motion to dismiss and/or for summary judgment.

October 30

Plaintiffs file their reply brief in further support of their cross motion for summary judgment.

This proposed schedule accommodates defendants’ request that the administrative record be available in connection with their briefing. The schedule further reflects plaintiffs’ intent, in light of the impending January 1, 2014 date by which the challenged regulations will apply to their insurance plans, that the Court have sufficient time to consider the preliminary injunction motion and to render a decision on it by early November 2013—to allow plaintiffs necessary lead time to prepare for implementation of their insurance plans prior to January 1, 2014.1 If the Court does not believe that timing will work, the parties will confer and propose an alternative briefing schedule for the preliminary injunction motion.
Finally, the parties respectfully request that the Court waive the pre-motion conference requirement for all of the above-mentioned motions.
We are available to discuss these and any other issues in this action at the Court’s convenience.

1 Defendants also would welcome a single decision by the Court to dispose of all these proposed motions, if that is consistent with the Court’s schedule.

CCaassee 11::1122--ccvv--0022554422--BBMMCC DDooccuummeenntt 6667 FFiilleedd 0077//2245//1133 PPaaggee 33 ooff 33 PPaaggeeIIDD ##:: 11002236
JONES DAY
The Hon. Brian M. Cogan July 24, 2013 Page 3
Respectfully submitted,

/ s / Benjamin L. Berwick_______________
Benjamin L. Berwick Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20530 Tel: (202) 305-8573
Attorneys for Defendants

/ s / Todd R. Geremia_______________
Charles M. Carberry Todd R. Geremia Toni-Ann Citera Patrick J. Smith Julie A. Rosselot JONES DAY 222 East 41st Street New York, New York 10017 Tel: (212) 326-3939
Attorneys for Plaintiffs

The schedule above is approved, with the understanding that the Court cannot commit to meet the parties' preferred schedule for a decision, although it will attempt to. In addition,the Court assumes that neither party is requesting an evidentiary hearing or discovery on the preliminary injunction motion and both parties consent to the determination of that motion on the papers that will be submitted. Finally, it seems that defendants' pending motion for reconsideration should be denied as moot, without prejudice to challenging standing (or raising any other available defenses) under the amended complaint in their motion to dismiss or for summary judgment. If that is not the case, defendants should advise the Court now. SO ORDERED: 7/25/13

Digitally signed by Brian M. Cogan
_______________________________ U.S.D.J.

 
 Case 1:12-cv-02542-BMC Document 69 Filed 08/14/13 Page 1 of 69 PageID #: 1028

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
THE ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK; CATHOLIC HEALTH CARE SYSTEM; CARDINAL SPELLMAN HIGH SCHOOL; MONSIGNOR FARRELL HIGH SCHOOL; THE ROMAN CATHOLIC DIOCESE OF ROCKVILLE CENTRE, NEW YORK; and CATHOLIC HEALTH SERVICES OF LONG ISLAND,
Plaintiffs,
-against-
KATHLEEN SEBELIUS, in her official capacity as Secretary of the 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.

No.: 1:12-cv-2542 (BMC) JURY TRIAL DEMANDED

AMENDED COMPLAINT 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing products, sterilization, and contraception. Those products and services are widely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs—all of which are Catholic entities—to violate their sincerely held 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

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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 members of their communities, Catholic and non-Catholic alike. Plaintiffs The Roman Catholic Archdiocese of New York (the “Archdiocese of New York” or the “Archdiocese”) and The Roman Catholic Diocese of Rockville Centre, New York (the “Diocese of Rockville Centre” or the “Diocese”), for example, serve New York families through their many charitable programs and through the education of students in their respective school systems. Cardinal Spellman High School (“Cardinal Spellman”) and Monsignor Farrell High School (“Msgr. Farrell High School”) educate diverse student bodies, preparing them for attending college and becoming leaders who make a difference in their community, their nation, and in the world. Catholic Health Services of Long Island (“CHSLI”) is an integrated healthcare delivery system that serves hundreds of thousands of Long Islanders each year, providing care that extends from the beginning of life to helping people live their final years in comfort, grace, and dignity. And Catholic Health Care System and its affiliates (collectively “ArchCare”), provides compassionate care to frail and vulnerable people unable to fully care for themselves and seeks to improve the quality of the lives of those individuals and their families.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic beliefs, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Emeritus Benedict XVI has more recently put it, “[L]ove 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
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Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Or as Cardinal Timothy Dolan, the Archbishop of New York, has taught: “We don’t serve people because they’re Catholic, we serve them because we are, and it’s a moral imperative for us to do so.” In accordance with these beliefs, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to a committed marital relationship between a man and a woman who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate” or “the Mandate”) 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 access to abortion-inducing products, sterilization, and contraception in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, including by some of the current Administration’s most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as the Archdiocese of New York and Diocese of Rockville Centre, and their equally religious charitable arms, such as Plaintiffs Cardinal Spellman and Msgr. Farrell High School, and other organizations for which the Archdiocese and Diocese provide health plans. Reversing course from its original form, the
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U.S. Government Mandate now prohibits the Archdiocese and the Diocese from ensuring that their religious affiliates provide health insurance consistent with Catholic doctrine.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. 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 products, contraception, sterilization, and related counseling and education. 8. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only organizations that are “organized and operate[] as a nonprofit entity and [are] referred to in section 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 file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this 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, 39,874. 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. 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 matters of religious faith and practice. 9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer”
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exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate 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 access to the objectionable products and services for their employees.
10. In particular, Plaintiffs ArchCare, Cardinal Spellman High School, Msgr. Farrell High School, and CHSLI do not qualify under the Government’s narrow definition of “religious employers,” even though they are religious organizations under any reasonable definition of the term. Instead, they are “eligible organizations” subject to the so-called “accommodation.” But notwithstanding the “accommodation,” these Plaintiffs are required to enter into a contract with an insurance company (or, for self-insured organizations, their third-party administrator), which, as a direct result, is required to provide or procure abortion-inducing products, contraception, sterilization, and related counseling for Plaintiffs’ employees. Consequently, the religious organizations’ actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services—for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health insurance plans altogether—without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
11. The Mandate, moreover, requires Plaintiffs to facilitate the provision of the objectionable products and services. For example, to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider or thirdparty administrator setting forth their religious objections to the Mandate. The provision of this
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“certification,” in turn, automatically triggers an obligation on the part of the insurance provider or third-party administrator to provide or procure the objectionable products and services for Plaintiffs’ employees. A religious organization’s self-certification, therefore, is a trigger and but-for cause of the provision of the objectionable products and services.
12. Notwithstanding the “accommodation,” the U.S. Government Mandate “requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20final.pdf. The Government asserts that the provision of the objectionable products and services will be “cost-neutral.” This assertion, however, 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 cost of the contraceptive services. 78 Fed. Reg. at 8,463. More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve what, to Plaintiffs, is the objectionable goal of “fewer childbirths.”
13. In short, the “accommodation” requires non-exempt religious organizations, including Plaintiffs, to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
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14. Plaintiffs Archdiocese of New York and Diocese of Rockville Centre qualify as “religious employers,” and, as such, are eligible for the “religious employer” exemption. However, the Archdiocese and Diocese operate self-insured health plans that encompass not only individuals directly employed by the Archdiocese and Diocese themselves, but in addition, individuals employed by affiliated Catholic organizations including Plaintiffs Cardinal Spellman High School and Msgr. Farrell High School, and many other Catholic entities. Because these schools and other covered Catholic affiliated organizations do not qualify as exempt “religious employers,” the U.S. Government Mandate requires the Archdiocese and Diocese to either (1) sponsor plans that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Cardinal Spellman High School, Msgr. Farrell High School, and other covered, non-exempt organizations; or (2) expel these non-exempt organizations from the Archdiocese and Diocese’s respective self-insurance plans, subjecting these non-exempt organizations to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
15. This reflects a change from the Government’s original interpretation of the Mandate. As originally understood, the exemption would have allowed Cardinal Spellman High School, Msgr. Farrell High School, and other affiliated organizations to remain on the Archdiocese’s and Diocese’s plans, which, in turn, would have shielded them from the Mandate by virtue of the exemption for the Archdiocese and Diocese. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). But the Government’s revised Mandate, as contained in the Final Rule, removes this protection and thereby increases the number of religious organizations subject to the Mandate. In so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its faith in action, directly contrary to Pope Emeritus Benedict XVI’s
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admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
16. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act (“APA”), and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and which the Government could make more widely available without 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 sincerely held religious beliefs.
17. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
18. Plaintiff Archdiocese of New York is a not-for-profit corporation incorporated in New York. Its principal place of business is 1011 First Avenue, New York, New York 10022. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
19. Plaintiff ArchCare is a not-for-profit corporation incorporated in New York. Its principal place of business is 205 Lexington Avenue, New York, New York 10016. It is
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organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
20. Plaintiff Cardinal Spellman High School is a not-for-profit corporation incorporated in New York. Its principal place of business is One Cardinal Spellman Place, Bronx, New York 10466. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
21. Plaintiff Monsignor Farrell High School is a not-for-profit corporation incorporated in New York. Its principal place of business is 2900 Amboy Road, Staten Island, New York 10306. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
22. Plaintiff Diocese of Rockville Centre is a not-for-profit corporation created by a special act of the New York State legislature in 1958. Its principal place of business is 50 North Park Avenue, Rockville Centre, New York 11570. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
23. Plaintiff CHSLI is a not-for-profit corporation incorporated in New York. Its principal place of business is 992 North Village Avenue, Rockville Centre, New York 11570. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
24. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
25. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
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26. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
27. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the APA.
28. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
29. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
30. 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.
31. 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 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.
32. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
33. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
34. Venue is proper in this district under 28 U.S.C. § 1391(e)(1). A. The Archdiocese of New York
35. Plaintiff Archdiocese of New York encompasses 370 parishes serving ten counties in New York City and the lower Hudson Valley, including in New York, Bronx, and Richmond Counties in the boroughs of Manhattan, the Bronx, and Staten Island, respectively, as
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well as Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester Counties in the lower Hudson Valley of New York State. The Archdiocese was created as the Diocese of New York in 1808, and was elevated to an Archdiocese on July 19, 1850.
36. His Eminence, Timothy Cardinal Dolan, was named Archbishop of New York by Pope Emeritus Benedict XVI on February 23, 2009. On November 16, 2010, Cardinal Dolan was elected president of the United States Conference of Catholic Bishops. On January 6, 2012, Pope Emeritus Benedict XVI announced that Cardinal Dolan was to be appointed to the College of Cardinals and Cardinal Dolan was elevated in the Consistory on February 18, 2012.
37. Though the Archdiocese includes a community of over 2.5 million Catholics, its services reach out to individuals of all faiths. The Archdiocese administers a variety of programs and organizations that help support parishes and schools; students and their families; retired, current and future clergy and religious; and countless men, women, and children in need of social services regardless of their faith.
38. For instance, through Catholic Charities of the Archdiocese of New York, over 356,000 individuals are served on an annual basis through 90 Catholic Charities agencies and 300 neighborhood and community sites. Catholic Charities helps New Yorkers in need—nonCatholics and Catholics alike—and seeks to uphold the dignity of each person as made in the image of God by serving the basic needs of the poor, troubled, frail and oppressed of all religions. Catholic Charities collaborates with parishes as well as non-Catholic and Catholic partners to build a compassionate and just society. Through a network of administered, sponsored, and affiliated agencies, Catholic Charities delivers, coordinates, and advocates for quality human services and programs touching almost every human need. The services of Catholic Charities of the Archdiocese of New York include the following:
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•

Protecting and Nurturing Children and Youth—25,000 youth in sports and

recreational programs; 310 children adopted by loving families; 6,545 children

placed in safe foster care; 4,100 children and teens in after school programs;

1,850 children in summer camps; 8,100 children in day-care/Head Start;

•

Feeding the Hungry and Sheltering the Homeless—6,500,000 meals served in

parish and community food programs; 4,800 families saved from homelessness;

2,545 people placed in temporary or transitional housing; 8,430 people in

emergency overnight shelters; 6,524 families in affordable housing;

•

Strengthening Families and Resolving Crises—4,500 families supported to stay

together; 35,000 people received needed social services; 7,900 people provided

training, orientation, and job placement; 1,600 women helped during unplanned

pregnancies; 15,100 individuals received counseling; 12,568 people helped with

emergency financial assistance;

•

Supporting the Physically and Emotionally Challenged—2,700 pre-schoolers

in early intervention and special education; 800 individuals in safe and secure

residences; 930 people with mental illness supported in their own homes; 329

individuals received individual therapy; 6,141 teens and adults treated for drug

and alcohol abuse; 1,250 visually and hearing impaired people trained for

independence; and

•

Welcoming and Integrating Immigrants and Refugees—3,378 families

counseled and protected from exploitation; 40,651 calls answered in 18

languages; 445 breadwinners helped to obtain authorization to work; 417

immigrants reunited with the families; 281 refugee and asylee families resettled;

and 291 immigrants taught English.

39. In addition, the Archdiocese of New York is committed to providing young

people of all religious backgrounds with a high-quality, faith-based education in some of the

poorest neighborhoods in New York.

40. There are 246 Catholic schools located in the Archdiocese, including 50

secondary schools, 8 special education schools, and 188 elementary schools.

41. Nearly 70% of the students enrolled in the 92 elementary and secondary inner-city

schools in Manhattan, the Bronx, and Staten Island come from homes living at or below the

federal poverty line. Enrollment is 93% minority and 36% non-Catholic. Over half of these

students come from single-parent households. Archdiocesan Catholic schools enable their

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students and their families to overcome enormous odds and break the cycle of poverty through education. Fully 95% of graduates from the Archdiocese’s Inner-City Scholarship Fund (“ICSF”) pursue college or university studies, including at distinguished institutions such as Harvard, Yale, MIT, Fordham, and Georgetown.
42. In the graduating class of 2011, 95% of the Archdiocese’s Catholic high school graduates attended two- or four-year colleges and/or universities. Additionally, the average scores of Catholic high schools in the Archdiocese on the five basic Regents exams (English, Integrated Algebra, Living Environments, Global History and Geography, and U.S. History) exceeded that of the average scores on these exams in the New York State public high schools.
43. The Archdiocese offers a variety of tuition assistance programs for those in economic need. Archdiocesan-sponsored scholarship programs serve 8,285 K-12 students, awarding an average overall scholarship of $2,142.
44. Further, the Cardinal’s Scholarship Programs serve 8,285 students: the Cardinal’s Scholarship Program (funded by the Children’s Scholarship Fund, ICSF, Partnership for InnerCity Education, and the Archdiocese) serves 5,760 students in grades K-8, with an average scholarship amount of $1,945; the Cardinal’s Scholarship Program (non-ICSF) serves 217 K-8 students on Staten Island with an average scholarship of $1,851; and the Cardinal’s Scholarship Program (funded by the Partnership) serves 642 students in grades 9-12 with, on average, a $3,502 scholarship. The “Be a Student’s Friend” Scholarship Program serves 1,666 students in grades K-12 and provides an average scholarship of $2,339.
45. The Archdiocese and its parishes and institutions employ nearly 10,000 people, including 1,452 priests, 379 religious men and women, and 7,923 lay people.
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46. The Archdiocese operates a self-insured health plan. That is, the Archdiocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Archdiocese itself functions as the insurance company underwriting its employees’ medical costs.
47. The Archdiocese’s plan also covers the employees of over 600 affiliated religious organizations, including a number of organizations that do not qualify as “religious employers” under the exemption to the U.S. Government Mandate. For example, Plaintiffs Cardinal Spellman High School and Msgr. Farrell High School—both separately-incorporated high schools located within the Archdiocese of New York—offer the Archdiocesan health plan to their employees. These schools do not meet the definition of a “religious employer” as set forth in the Final Rules.
48. The Archdiocese’s medical plan is administered by United Health Care and its pharmaceutical coverage is administered by CVS Caremark. These third parties handle the administrative aspects of the Archdiocese’s self-insured employee health plans, but they bear none of the risks for benefits, nor do they provide any of the funds used to pay health care providers.
49. Consistent with Church teachings, the Archdiocese’s health insurance plan does not cover abortion-inducing products, contraceptives, or sterilization. In limited circumstances, the Archdiocese’s health plan administrator can override the exclusion of certain products commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions and not with the intent to prevent pregnancy.
50. The Archdiocese’s self-insured health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan because the plan has enacted significant increases to
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the 10% employee contribution requirements and increased the co-payment requirements for all lay employees effective January 1, 2012.
51. The magnitude of potentially applicable fines imposed pursuant to the U.S. Government Mandate would have devastating consequences on the Archdiocese.
52. The plan year for the Archdiocese begins on January 1. B. ArchCare
53. ArchCare, known as the “Continuing Care Community of the Archdiocese of New York,” is a non-profit healthcare organization with over 4,000 employees. ArchCare is guided by a dedication to and appreciation for the dignity of all human life and by the Archdiocese’s commitment to serving the sick and the frail in New York City and the Greater New York area.
54. ArchCare is a central part of the health care ministry of the Archdiocese of New York. As Cardinal Dolan has stated: “Through the vital ministry of ArchCare, the Archdiocese of New York provides health care and continuing support in the name of Jesus to those in our community who have lost the opportunity to live independently or alone due to advancing age, injury or disability.”
55. As such, ArchCare seeks to assure the presence of Catholic values in caring for a diverse medical population, including children with developmental disabilities, the elderly, individuals requiring renal dialysis, and those living with Huntington’s disease, Alzheimer’s disease, and HIV/AIDS.
56. ArchCare’s mission is to foster and provide faith-based holistic care to frail and vulnerable people unable to fully care for themselves. With an emphasis on not only physical well-being, but also the mind and spirit of those it serves, ArchCare treats individuals with
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respect, compassion, and dignity, and seeks to improve the quality of the lives of individuals

within its care as well as their families.

57. Among the guiding values of ArchCare are justice, inclusiveness, respect,

integrity, benevolence, humility, and spirituality. In living these core values, ArchCare commits

itself to the recognition that those with the greatest needs often have the least resources, and thus

provides the same quality of care to the disenfranchised and less-fortunate of New York as it

does to those who have been more fortunate.

58. With over 2,500 beds and more than 700 nurses, ArchCare is one of the largest

Catholic continuing care systems in the nation, with a broad array of services including home

care, hospice, a long-term acute care hospital, and adult day health care centers.

59. ArchCare offers individualized, comprehensive care services through its network

of in-home care, five nursing homes, eight residential locations, and several out-patient facilities

located throughout New York City in the boroughs of Manhattan, Staten Island, and the Bronx,

as well as in Dutchess and Orange Counties.

60. The facilities in ArchCare’s network, which together administer care to more than

6,000 patients, include the following:

•

Carmel Richmond Healthcare and Rehabilitation Center (“Carmel

Richmond”)—a home-like, 300-bed residential facility in Staten Island, New

York, served by the Carmelite Sisters for the Aged and Infirm, is a religious

community nationally renowned for setting the standard for excellence in care of

the elderly. Carmel Richmond offers residents continuous, 24-hour skilled

nursing and medical care, administered by a team of 70 affiliated physicians and

more than 500 nurses, professionals, and support staff. Services for the nearly

1,000 patients cared for at Carmel Richmond include dentistry, ophthalmology,

audiology, social services, psychology, podiatry, nutrition therapy, recreation

therapy, pain management, and hospice care. The Carmelite Sisters work to

maintain the dignity, comfort, and connection to the community of the residents

through recreational, socialization, and activity programs, including daily Mass

and religious services, a café, a beauty salon and barber shop, and gathering

rooms, as well as a garden and outdoor space. Through its state-of-the-art

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rehabilitation facilities and highly skilled rehabilitation therapists, Carmel Richmond has a proven record of achievement in restoring residents to their optimal level of independence. More than 90% of the people admitted for shortterm rehabilitation return to their communities within their targeted time frame. The short-term rehabilitative services include pain management and coordinated treatment plans personalized for each resident in physical, occupational, and speech therapy. Carmel Richmond also offers an Adult Day Health Care Program, available for individuals who wish to remain at home, but who need limited health care services.

•

Ferncliff Nursing Home (“Ferncliff”)—a 328-bed residential home located in

Rhinebeck, New York. Ferncliff provides its residents with continuous, 24-hour

skilled holistic care that addresses not only physical needs, but social,

psychological, emotional, and spiritual needs, as well. Ferncliff provides the 580

patients it serves with access to its private 36-acre grounds, and through its 18

consulting physicians offers treatment in psychiatry, psychology, podiatry,

ophthalmology and optometry, neurology, gastroenterology, orthopedics, and

dentistry. Short-term rehabilitation services for residents who have suffered a

stroke or who have undergone major surgery or other medical procedures include

speech, physical, and occupational therapy, as well as pain management. These

programs are designed to assist the elderly and vulnerable to return to their

normal routines and independent lives as quickly as possible. Ferncliff also offers

religious services.

•

Mary Manning Walsh Home (“Mary Manning”)—a completely refurbished

362-bed facility located in Manhattan. Mary Manning, operated by the Carmelite

Sisters, serves the East Side community and offers long-term care and short-term

rehabilitation services to nearly 1,390 patients. Mary Manning provides

continuing care services through access to numerous physicians and also

maintains a vibrant community for its residents through the presence of outdoor

facilities, a barber shop and beauty parlor, and common gathering areas.

•

San Vicente de Paúl Catholic Healthcare Center (“San Vicente”)—a 200-bed

residential skilled nursing and rehabilitation healthcare facility located in the

Bronx that is designed to meet the special needs of elderly members of New

York’s Latino communities. Since opening in 1992, it has become a cornerstone

in the rebirth of its Bronx neighborhood. San Vicente provides the same high

quality, 24-hour short-term and long-term care services as are offered at its sister

facilities and offers transportation and meals to its out-patients in need. The

bilingual staff, ethnic food, and special social events it provides all reflect San

Vicente’s commitment to providing much-needed services to its surrounding

community and the more than 240 patients it treats. A special unit is dedicated to

serving those needing intensive rehabilitative services for a short period before

returning to their independent lives at home. San Vicente also offers access to

several consulting physicians and an Adult Day Health Care Program.

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•

Terence Cardinal Cooke Health Care Center (“Cooke Center”)—a continuing

care facility located near Central Park in Manhattan that provides compassionate

medical care to over 1,570 patients from emerging and under-served populations.

The Cooke Center provides long-term care for the frail elderly and those with

complex medical conditions, as well as short-term subacute rehabilitative services

for those recovering from surgery or other ailments. As a comprehensive skilled

nursing facility, the Cooke Center provides access to nearly 50 physicians and

offers health care services to a diverse medical population, such as children with

developmental disabilities, the elderly, individuals requiring renal dialysis,

including those requiring hemodialysis and suffering through end-stage renal

disease, as well as those living with Huntington’s disease, Alzheimer’s disease,

and HIV/AIDS. The Cooke Center works in collaboration with Mount Sinai

Hospital’s Department of Rehabilitation Medicine, one of America’s top specialty

hospitals.

•

Program of All-Inclusive Care for the Elderly—an adult day care and

continuing care facility recently opened to serve the needs of the elderly in

Harlem. The facility—one of only 77 of its kind in the country—delivers the

same level of care that individuals would receive in a nursing home while

allowing them to keep their independence and continue living safely in the

community for as long as possible.

61. ArchCare believes profoundly in the traditions of the Roman Catholic Church.

ArchCare relies on the Ethical and Religious Directives for Catholic Health Care Services

promulgated by the United States Conference of Catholic Bishops (“Ethical and Religious

Directives”) as a guiding document detailing the application of the Catholic Church’s basic

theological principles to the provision of health care. These Ethical and Religious Directives,

now in their Fifth Edition published in 2009, provide guidance for specific issues relating to the

general overriding requirement to operate in accordance with the ethical and moral teachings of

the Roman Catholic Church.

62. At the same time, ArchCare continues to honor its ministry by serving New

Yorkers of all faiths and striving to fulfill each individual’s spiritual needs by respecting their

distinct beliefs.

63. More than 1,130 ArchCare employees participate in ArchCare’s self-insured

health plan.

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64. ArchCare does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, ArchCare does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
65. ArchCare operates a self-insured health plan. That is, ArchCare does not contract with a separate insurance company that provides health care coverage to its employees. Instead, ArchCare itself functions as the insurer underwriting its employees’ medical costs.
66. ArchCare’s medical plan is administered by Emblem Health and its pharmaceutical coverage is administered by CVS Caremark. These third parties handle the administrative aspects of ArchCare’s self-insured employee health plans, but they bear none of the risks for benefits, nor do they provide any of the funds used to pay health care providers.
67. Pursuant to the Ethical and Religious Directives, all of ArchCare’s current employee health plan options comply with Catholic teachings on abortifacients, sterilization, and contraception. Specifically, abortion and sterilization are not covered. Contraceptives are also barred under the plans, but may be available for medically necessary, non-contraceptive purposes, such as treatments for amenorrhea, hypermenorrhea, dysmenrrhea, dysfunctional uterine bleeding, endometriosis, polycystic ovary syndrome, ovarian hyperandrogenism, and other medical indications other than contraception, if certain approval procedures are utilized.
68. The health plans offered by ArchCare are not “grandfathered” plans because the employee cost share increased by more than 5% effective January 1, 2012.
69. The financial burden of potentially applicable fines imposed pursuant to the U.S. Government Mandate would devastate ArchCare’s ability to continue to provide health care services to the communities it serves.
70. The plan year for ArchCare begins on January 1.
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C. Cardinal Spellman High School 71. Cardinal Spellman High School is a Roman Catholic high school that has been
dedicated to the education of young men and women in the Bronx since it was founded in 1959. 72. Spellman’s mission is to promote a culture of aspiration that encourages superior
academic performance, leadership, and service. It strives to make its program available to all qualified students and is proud of its diverse student body. Spellman consists of approximately 40% African American students, 40% Hispanic students, and 20% Caucasian students. Spellman recognizes and celebrates that diversity, and believes its students gain a great advantage from it.
73. Spellman offers its diverse student body a rigorous college preparatory education in a supportive learning environment. Preparing each student for college acceptance and achievement is a priority of the entire program at Cardinal Spellman High School. Spellman’s teachers and administrators work diligently and enthusiastically to achieve this goal for each of its students. 98% of Spellman’s graduates go on to college.
74. Consistent with its Catholic identity, Cardinal Spellman High School teaches its students to integrate faith and life. It stresses the importance of building a just society and provides numerous opportunities for students to participate in charitable work. All Spellman students are required to undertake service projects, and Spellman has an extracurricular student group dedicated to community service. Spellman students have participated in a wide breadth of service activities, including projects for those affected by the Newtown school shooting and Hurricane Sandy, as well as tutoring and other projects for local public school students and diaper, formula, and other drives to give aid to single mothers.
75. Cardinal Spellman High School has over 100 employees and employs individuals of all faiths.
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76. Cardinal Spellman High School does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Spellman does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
77. Cardinal Spellman High School is an affiliated corporation of the Archdiocese, and Spellman employees are offered health insurance through the Archdiocese’s health plan.
78. The magnitude of potentially applicable fines imposed pursuant to the U.S. Government Mandate would have a significant negative impact on Cardinal Spellman High School.
D. Monsignor Farrell High School 79. Set on twenty acres in the Oakwood Heights section of Staten Island, Msgr.
Farrell High School has been providing Roman Catholic secondary education to young men for over fifty years.
80. Msgr. Farrell High School offers an approach to life that is simultaneously Catholic, American, and contemporary. It strives to provide quality education and ensure that the knowledge its students acquire of the world, life, and humanity is illuminated by faith. Msgr. Farrell High School stresses the importance of service to others, challenging them to develop their own God-given talents and teaching students to be seekers of peace and justice. The school endeavors to graduate mature, faithful young men who will be sensitive and productive members of society. Indeed, Msgr. Farrell High School’s motto, Vir Fidelis, means “faithful man.”
81. Msgr. Farrell High School draws students from predominantly blue-color backgrounds, and is both racially and religiously diverse. Msgr. Farrell High School has a 24.6% minority enrollment rate, which exceeds the percentage of minorities in the local population. Students of all religions are welcome at Msgr. Farrell High School, and a wide variety of non-
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Catholic religions—including Judaism, Hinduism, Islam, Buddhism, and Orthodox Christianity— are represented among the student population.
82. Msgr. Farrell High School offers its diverse student body a rigorous college preparatory education. 100% of Msgr. Farrell High School’s graduates go on to college, and its graduates are regularly awarded roughly $30 million in aggregate scholarships. Msgr. Farrell High School’s alumni have risen to become significant figures in business, law, medicine, military service, and public service. Indeed, nearly all elected male officials on Staten Island are alumni.
83. Central to Msgr. Farrell High School’s mission is teaching its students to integrate faith and life. The school stresses the importance of giving back to the community and provides numerous opportunities for students to participate in charitable work. Msgr. Farrell High School is located in the epicenter of Hurricane Sandy’s devastation, and Msgr. Farrell’s students spearheaded and participated in many relief efforts and continue to work on volunteer projects assisting those affected by the storm. Msgr. Farrell students started an organization dedicated to serving veterans, including those veterans that are home bound or elderly, that has spread across the country and become a national association. Amongst many other charitable projects, Msgr. Farrell High School also participates in the Big Brother program, as well as academic and athletic mentoring of underprivileged children.
84. Msgr. Farrell High School has seventy-four employees and employs individuals of all faiths.
85. Msgr. Farrell High School does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Msgr. Farrell High School does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
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86. Msgr. Farrell High School is an affiliated corporation of the Archdiocese, and Msgr. Farrell High School employees are offered health insurance through the Archdiocese’s health plan.
87. The magnitude of potentially applicable fines imposed pursuant to the U.S. Government Mandate would have a significant negative impact on Msgr. Farrell High School.
E. The Diocese of Rockville Centre 88. Plaintiff Diocese of Rockville Centre encompasses 134 parishes on Long Island.
Formed from the Diocese of Brooklyn in 1957, the Diocese of Rockville Centre encompasses Nassau and Suffolk Counties and is the second largest diocese by population in the U.S.
89. Most Reverend Bishop William Murphy has served since 2001 as the Diocese’s fourth bishop. Bishop Murphy is assisted in his ministry by two auxiliary bishops and a staff of over 370 priests, 771 religious women, 72 brothers, and 250 deacons. The Diocese corporation directly employs 193 persons. And the Diocese of Rockville Centre, together with its hospitals, parishes, schools, and other Diocese-associated institutions employs approximately 19,800 lay employees, making it the second largest non-governmental employer on Long Island.
90. The Diocese of Rockville Centre oversees a variety of liturgical, sacramental, and faith formation programs. Parish and diocesan programs provide ongoing faith formation for its adult members, and the Diocese works for the inclusion of persons with special needs in faith formation and parish life.
91. The Diocese conducts its educational mission through its schools. Over 33,000 students are educated in fifty-seven Catholic elementary and ten Catholic high schools in the Diocese by over 2,000 dedicated educators. The Diocese supervises the operation of fifty-three of the Catholic elementary schools and three of the high schools, overseeing the education of 17,033 elementary and 3,520 high school students. Between 99 and 100% of the Diocese’s
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students are accepted into two- or four-year colleges. The Diocesan schools welcome students of any or no faith.
92. The Diocese of Rockville Centre is committed to social services in the community. In 2010, more than 59,000 poor, vulnerable, and disadvantaged individuals were assisted by Catholic Charities of the Diocese of Rockville Centre. Diocesan programs served a combined total of 503,856 people in 2010. Through parish outreach programs supported by the Diocese, direct services were provided to more than 19,000 persons each month in 2010. That same year, the Diocese also served 345,000 individuals in hospitals, 3,000 inmates, and 45,000 people living in the Dominican Republic. In addition, the Diocese helps make housing and supportive services available to adults with chronic mental illness and substance abuse difficulties and helps provide safe and affordable housing to people in its communities through support of 15 senior housing facilities with 1,298 affordable apartments and a residence for disabled individuals (multi-generational housing) with 31 units.
93. The Diocese operates a self-insured health plan. That is, other than for the performance of administrative services only, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the plan administered by the Diocese itself functions as the risk-bearing insurance entity underwriting its employees’ medical costs.
94. A number of Catholic organizations affiliated with the Diocese also offer health coverage through the Diocese’s self-insurance plan, including several entities that do not qualify as “religious employers” under the exemption to the U.S. Government Mandate, for example, Dominican Village, a not-for-profit independent, assisted living, and respite care retirement community, and Our Lady of Mercy Academy, an all-girls Catholic high school.
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95. The Diocese-administered health plan is managed by Diocesan Health Plan Inc., and third party administrator Empire BlueCross BlueShield provides certain administration services to the Diocesan plan.
96. The Diocese’s health plan complies with Catholic teachings on abortifacients, sterilization, and contraception. Specifically, abortion and sterilization are not covered. Contraceptives are covered only when prescribed for non-contraceptive, medically necessary purposes.
97. The Diocese’s current health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan for two reasons: (i) because certain changes to the plan were made by the Diocese shortly after the Act was passed, causing the plan to lose any “grandfathered” status; specifically, beginning in 2011, the Diocese added an annual $50 per person deductible on prescription medications and had communicated that change to participating employees, constituting, under Treas. Reg. §54.9815-1251T(g) and HHS Reg. §147.140(g), an increase in a fixed-amount cost-sharing requirement other than a copayment (for example, a deductible or out-of-pocket limit); and (ii) because the Diocese has never communicated, as is required by Treas. Reg. §54.9815-1251T(a)(2) and HHS Reg. §147.140(a)(2) in order to maintain “grandfathered” status, to participants or beneficiaries that the Diocese’s health plan is a grandfathered plan.
98. For fiscal year 2011-2012, the Diocese’s operating budget was $30,844,000, including subsidies paid to related entities. The negative financial impact of potentially applicable fines imposed pursuant to the U.S. Government Mandate would be significant for the Diocese, as it struggles to balance its budget each and every year.
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99. The plan year for the Diocese (and the organizations its health plan insures) begins on January 1.
F. Catholic Health Services of Long Island 100. CHSLI is a New York not-for-profit corporation that oversees the Diocese of
Rockville Centre’s health care ministries. CHSLI operates as the active parent organization of a healthcare system consisting of separately incorporated not-for-profit corporations located in Nassau and Suffolk Counties on Long Island, New York.
101. CHSLI is an integral part of the Diocese’s mission to provide compassion and care to all Long Islanders, while remaining faithful to the principles of the Catholic faith. CHSLI strives to be a leader, a partner, and an advocate in creating innovative health and wellness solutions that improve the lives of the individuals and communities it serves.
102. Since 1907, Catholic healthcare on Long Island has built a distinguished tradition of operating community-based hospitals and human service organizations. These services have become widely valued for the high quality of their compassionate care for people from all walks of life and of every religious belief and ethnic group.
103. Founded in 1997 to oversee Catholic healthcare organizations within the Diocese, CHSLI provides services to hundreds of thousands of Long Islanders each year, extending from providing care at the beginning of life to helping people live their final years in comfort, grace, and dignity. Since its formation as a system, and before that as individual hospitals and health care providers, CHSLI, like ArchCare, has relied on the Ethical and Religious Directives. These Directives predate the existence of CHSLI. Since the formation of CHSLI as a system, they have been considered by CHSLI’s governance as one of CHSLI’s core guiding documents.
104. As stated in the Preamble to the Ethical and Religious Directives:
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The Ethical and Religious Directives are concerned primarily with institutionally based Catholic health care services. They address the sponsors, trustees, administrators, chaplains, physicians, health care personnel and patients or residents of the institutions or services. . . . The Directives have been refined through an extensive process of consultation with bishops, theologians, sponsors, administrators, physicians, and other health care providers.
105. The Ethical and Religious Directives are guiding principles for Catholic
healthcare institutions, including ArchCare and CHSLI. CHSLI incorporates the Ethical and
Religious Directives, as interpreted by the Bishop of the Diocese of Rockville Centre, into
hundreds of CHSLI contracts.
106. CHSLI’s 1997 Certificate of Incorporation states the purposes for which the
Corporation is formed as follows:
[T]he Corporation is organized and shall be operated exclusively for the charitable purpose of supporting and strengthening the ministries of the Diocese of Rockville Centre (“the Diocese”) and other ministries which also are supervised or controlled by or in connection with the Roman Catholic Church in the management of their spiritual, material and financial resources in conformity with the ethical and moral teachings of the Roman Catholic Church, and promoting efficient governance and management, cooperative planning and the sharing of resources among such ministries. (Article 3, section (a) Certificate of Incorporation dated October 23, 1997) (emphasis added).
107. In its 1997 Certificate of Incorporation, Article 8 reads in its entirety, as follows:
“The Corporation shall operate in accordance with The Ethical and Religious Directives for
Catholic Health Services as promulgated and interpreted by the Bishop of the Roman Catholic
Diocese of Rockville Centre.” (Article 8, Certificate of Incorporation dated October 23, 1997.)
108. Section 1.02 of the By-laws of the Corporation reads in its entirety:
Section - 1.02 Adherence to Catholic Doctrine. The Corporation shall adhere at all times to the Ethical and Religious Directives for Catholic Health Care Services as published and interpreted by the Bishop of the Diocese of Rockville Centre.
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Each of the individual CHSLI hospitals and other affiliates has a parallel provision in its

corporate by-laws.

109. At its inception, CHSLI was composed of four acute care hospitals, two nursing

homes, three home care companies, four hospice divisions, and numerous supporting companies.

CHSLI has continued to increase its presence on Long Island as a provider of health services and

currently consists of six acute care hospitals, three nursing homes, certified home health and

long-term healthcare programs, a hospice service, and a network of services for the mentally and

developmentally disabled, all based on Long Island.

110. More than 17,000 staff, including 3,068 registered nurses, and more than 3,000

affiliated physicians assist patients throughout CHSLI’s health care network. The CHSLI

hospitals contain approximately 1,928 licensed acute care beds. The CHSLI system administers

more than 2,700 acute and non-acute beds. CHSLI’s annual operating budget is approximately

$2 billion.

111. CHSLI is the sole corporate member of each of the six hospitals within the

CHSLI system. The high-quality and award-winning hospitals operated by CHSLI provide a full

continuum of much-needed and, in many cases, uniquely specialized care across all of Long

Island:

•

St. Francis Hospital d/b/a St. Francis Hospital, The Heart Center (“St.

Francis”)—a not-for-profit hospital located in Roslyn, Nassau County, New

York, with 364 licensed beds, that delivers specialized cardiac and general

medical acute care services and conducts cardiovascular research. St. Francis has

achieved “Magnet” recognition twice and is a cardiac specialty center. St. Francis

has been consistently recognized for its outstanding quality of care. Patients are

transferred to St. Francis from community hospitals throughout Long Island, the

New York metropolitan area, other states, and abroad for emergency cardiac

diagnosis and treatment. St. Francis also provides crucial diagnostic testing, such

as stress testing, echocardiography, computed tomography angiography, cardiac

magnetic resonance imaging and catheter-based repair of congenital heart defects.

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•

Good Samaritan Hospital Medical Center (“Good Samaritan”)—a not-for-

profit, regional teaching medical center located on the south shore of Long Island

in West Islip, Suffolk County, New York. Good Samaritan has 537 licensed beds,

including 100 nursing home beds. The hospital is also a “Magnet” recognized

institution and is a New York State Designated Level II Trauma Center. Good

Samaritan provides inpatient, ambulatory care, certified home health and dialysis

services, as well as a full range of diagnostic and therapeutic services on an

inpatient and outpatient basis. Good Samaritan recently expanded its Division of

Cardiology and will soon integrate the St. Francis cardiac surgery program at

Good Samaritan. Good Samaritan also operates offsite facilities, including two

chronic dialysis centers, a women’s imaging center, a home health agency, a

nursing home, and a pediatric specialty facility, in addition to staffing two

community health clinics.

•

St. Catherine of Siena Medical Center (“St. Catherine”)—a not-for-profit

hospital located in Smithtown, Suffolk County, New York. St. Catherine was

acquired by CHSLI in 2000, and has 558 licensed beds, including 240 nursing

home beds. St. Catherine is certified for ambulatory surgery, acute and chronic

renal dialysis, neonatal intensive care, cardiac catheterization, and magnetic

resonance imaging. St. Catherine operates the Women’s Health and Outpatient

Diagnostic Pavilion and St. Catherine of Siena Nursing and Rehabilitation Care

Center. St. Catherine is also the owner of Siena Medical Realty, LLC, which

operates a 51,000 square foot medical office building, and is the sole member of

Siena Village, Inc., which operates a 298-unit subsidized apartment complex for

the elderly and disabled.

•

Mercy Medical Center (“Mercy”)—a not-for-profit community hospital located

in Rockville Centre, Nassau County, New York. Founded in 1913, Mercy has

375 licensed beds and offers a broad range of diagnostic and therapeutic services

on an inpatient and outpatient basis, as well as specialized services in the areas of

cardiology, oncology, maternal and neonatal intensive care, behavioral health,

orthopedic surgery, and physical medicine and rehabilitation. Mercy has the only

Level III Neonatal Intensive Care Unit on the south shore of Nassau County.

•

St. Charles Hospital (“St. Charles”)—a not-for-profit hospital that has provided

medical, surgical, and rehabilitation services since 1907. In addition to its general

hospital with 231 licensed beds located in Port Jefferson, Suffolk County, New

York, St. Charles operates outpatient rehabilitation facilities in Port Jefferson,

Smithtown, Melville, Patchogue, Riverhead, Centereach, Setauket, Ronkonkoma,

and Albertson. St. Charles was the first hospital in Suffolk County to become a

designated Stroke Center. St. Charles offers a broad range of diagnostic,

therapeutic, and rehabilitative services for adults and children on an inpatient and

outpatient basis.

•

St. Joseph Hospital (“St. Joseph”)—a not-for-profit hospital located in

Bethpage, Nassau County, New York. St. Joseph was acquired by CHSLI in

January 2010 and has 231 licensed beds and provides comprehensive inpatient

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and outpatient medical services, critical care, and surgical services. St. Joseph specializes in wound care and is the only hospital on Long Island to have a Center for Wound Care and Hyperbaric Medicine accredited by the Undersea and Hyperbaric Medical Society—a recognition awarded to just 15% of facilities with related services. Other services offered include emergency medicine, ambulatory surgery, sleep medicine, and diabetes education. 112. CHSLI’s acute care hospitals are known for providing excellence in care and committing themselves to those in need. This is evidenced by the numerous awards and national recognition they have earned. As noted, two of the six hospitals, St. Francis and Good Samaritan, have earned “Magnet” recognition status, the highest honor for nursing care. The CHSLI network has also won both the 2010 HANYS Pinnacle Award for Quality and Patient Safety and the 2011 HANYS Community Health Improvement Award. 113. For the seventh year in a row, St. Francis has been recognized by US News & World Report as one of the best hospitals in the nation. St. Francis is currently ranked among the top 10 hospitals in the in the country for cardiology and heart surgery, rating # 8 nationwide. St. Francis also rated among the best in the U.S. in seven other specialties: ear, nose, and throat; gastroenterology and GI surgery; geriatrics; neurology and neurosurgery; and, for the first time, orthopedics, pulmonology, and urology. Overall, St. Francis was rated the # 1 hospital on Long Island and # 4 in New York State. 114. Additionally, Mercy earned 5 stars from HealthGrades® for joint replacements, total knee replacement, and hip fracture repair, while St. Charles has been named a Blue Distinction Center for total joint replacement. Good Samaritan, St. Catherine, and Mercy were named Bariatric Surgery Centers of Excellence. 115. CHSLI also has a uniquely well-developed continuum of care, providing services to those in need of a full range of health care services on Long Island to improve quality outcomes and offer patients seamless transfers. These services include an extensive system of
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long-term and sub-acute facilities, home health agencies (both short- and long-term), an inpatient

and community hospice, a durable medical equipment company, a community-based school,

residential housing and day programs for children and adults with developmental and behavioral

disabilities, and an outpatient and residential substance abuse and mental health program.

Among the facilities in CHSLI’s continuum of health care providers are the following:

•

Catholic Home Care—the largest home health organization on Long Island,

Nursing Sisters Home Care (d/b/a Catholic Home Care) is a certified home health

agency licensed in Nassau and Suffolk Counties, which has developed a health

monitoring program, enabling the reduction of hospital length of stay and

readmissions while improving patient outcomes. Catholic Home Care is also the

sole member of CHS Home Support Services, a licensed durable medical

equipment provider.

•

Maryhaven Center of Hope (“Maryhaven”)—provides behavioral health

services to developmentally disabled individuals, and operates an intermediate

care facility, a school, community residences, individual residential alternative

sites, and supportive living facilities, primarily in Suffolk County, New York.

Maryhaven is fully interwoven into the Suffolk County community as a provider

of health care and related services.

•

Our Lady of Consolation Geriatric Care Center d/b/a Our Lady of

Consolation Nursing and Rehabilitative Care Center (“Our Lady of

Consolation”)—a 450-bed nursing home in West Islip, Suffolk County, New

York. Skilled nursing care at Our Lady of Consolation includes geriatric,

rehabilitative, and medically complex care. In addition, Our Lady of Consolation

offers a long-term home health care program that provides critical services to

Long Island’s elderly and sick, while reducing the burden on area hospitals.

•

Good Shepherd Hospice (“Good Shepherd”)—operates a 16-bed inpatient

hospice unit on the campus of St. Charles in Port Jefferson, Suffolk County, New

York, and provides end-of-life care to patients in their homes and in skilled

nursing facilities. Good Shepherd is licensed to operate in Nassau and Suffolk

Counties.

116. CHSLI does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii)

of the Internal Revenue Code. Accordingly, CHSLI does not qualify as a “religious employer”

under the exemption to the U.S. Government Mandate.

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117. CHSLI offers health care insurance to its employees and employees of its member corporations through a self-insured program administered by a third party, Empire BlueCross BlueShield.
118. Consistent with its mission and the Ethical and Religious Directives, CHSLI’s health plan does not cover abortion-inducing products, sterilization, or contraceptives.
119. The health plan offered by CHSLI to its employees is not a “grandfathered” plan because CHSLI made plan design changes for January 1, 2011 that triggered the loss of “grandfathered” status. For example, CHSLI increased its specialist office visit copay to an amount that exceeds the limits for “grandfathered” plans. In addition, CHSLI also increased prescription drug co-pays and reduced co-pays for its point of service plan.
120. The specter of potentially applicable fines imposed pursuant to the U.S. Government Mandate would cause undue financial hardship on CHSLI and call into question its ability to continue to operate.
121. CHSLI’s plan year begins on January 1. II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 122. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined 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[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
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123. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
124. “[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) (“Interim Final Rules”); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 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.
125. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. 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
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significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. See 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 75700.
d. 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 Cong. 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). 126. 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. 127. 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
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services. Specifically, it 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 of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2).
128. 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. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. See S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that 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 failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, 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).
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129. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption 130. In a span of less than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act’s clear purpose 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 burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that imposes significantly greater burdens on the practice of religious beliefs than the original one.
(1) The Original Mandate 131. On July 19, 2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the 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 1, 2011.” Id. at 41,731. 132. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “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
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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.
133. The IOM 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 close of each meeting.
134. At the close of this process, on July 19, 2011, the IOM 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.” Inst. of Med., “Clinical Preventive Services for Women: Closing the Gaps,” at 218-219 (2011).
135. The extreme bias of the IOM process spurred one member of the 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.” Id. at 232.
136. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the IOM Committee chair illustrated her cavalier attitude
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toward the religious-liberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. of Med. Comm. on Preventive Servs. for Women, Press Briefing (July 20, 2011), available at http://www.iom.edu/Reports/2011/ClinicalPreventive-Services-for-Women-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “slippery slope” by “opening up that door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. of Med. Comm. on Preventive Servs. for Women).
137. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” 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/2011pres/08/20110801b.html. HHS ignored the religious, moral, and ethical dimensions of the decision and the ideological bias of the IOM 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 HHS’s final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” available at http://www.hrsa.gov/womensguidelines.
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138. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. 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.
139. Shortly after announcing its definition of “preventive 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: “(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”; and “(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.” 76 Fed. Reg. at 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
140. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
141. The sweeping nature of the Mandate was subject to widespread and withering 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. As Catholic Charities USA’s
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president, the Rev. Larry Snyder, observed, even Jesus and His disciples would not qualify for the exemption in that case, because they were committed to serve those of other faiths.
142. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. 8,725, 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.”
143. A month later, under continuing public pressure, 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 “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-notice-ofproposed-rulemaking-on-preventive-services-12-05-15.pdf.
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(2) Plaintiffs’ First Lawsuit and the Government’s Promise of Non-Enforcement 144. On May 21, 2012, Plaintiffs filed this lawsuit seeking to enjoin the U.S. Government Mandate on the ground, among others, that it violated their rights of religious conscience under RFRA and the First Amendment. See The Roman Catholic Archdiocese of New York, et al. v. Sebelius, et al., Case No. 1:12-cv-02542-BMC (E.D.N.Y.). 145. The Court denied Defendants’ motion to dismiss in substantial part, but thereafter, in response to the Government’s later representation that it would never enforce the current regulations, the Court granted a stay of discovery and proceedings “pending the completion of the agency defendants’ current rulemaking proceedings” in connection with the ANPRM. See id., Apr. 24, 2013 Order. (3) The Government’s Final Offer and the Empty “Accommodation” 146. 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. The NPRM, like the Government’s previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20final.pdf.
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147. Despite this opposition, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39,870 (July 2, 2013) (“Final Rule”).
148. 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 increases that burden by significantly increasing the number of religious organizations subject to the Mandate.
149. 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 “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,874 (codified at 45 CFR § 147.131(a)). As the Government has admitted, 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 rules.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). 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.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused 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.”
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150. 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 for groups that are “referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code” includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS has adopted an intrusive, 14factor test to determine whether a group meets these qualifications. See Foundation of Human 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. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
151. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services”; (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization”; and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 CFR § 54.9816-
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2713A(a). The provision of this self-certification then automatically requires the insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for the organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. §§ 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 CFR § 2590.715-2713; 45 CFR § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. See 26 CFR § 54.9815–2713.
152. 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 counseling. Id. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision 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’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 CFR § 2590.715-2713 (for self-insured employers, the third-party administrator “will provide or arrange 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
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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”). For self-insured organizations, moreover, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
153. This shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
154. The U.S. Government Mandate also requires Plaintiffs to subsidize the objectionable products and services.
155. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that 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 products and services.
156. The Government’s “cost-neutral” assertion, moreover, is implausible. It rests on the assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual
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policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. 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.
157. More importantly, even if the Government’s “cost-neutral” assertion were true, it is still objectionable. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is required to pay for the objectionable products and services rather than for the provision of healthcare in connection with childbirths.
158. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes, however, do not fully compensate the regulatory entities for the costs and risks incurred. As a result, 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.
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159. Either way, as with insured plans, self-insured organizations such as the Archdiocese and the Diocese likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
160. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
161. Third, the Final Rule actually increases the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government’s initial interpretation of the “religious employer” exemption, 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.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
162. For example, Plaintiffs Archdiocese of New York and Diocese of Rockville Centre operate self-insurance plans that cover not only the Archdiocese and Diocese themselves, but other affiliated Catholic organizations—including Plaintiffs Cardinal Spellman High School and Msgr. Farrell High School. Under the original interpretation of the exemption, if the Archdiocese and Diocese are exempt “religious employers,” then Cardinal Spellman High School, Msgr. Farrell High School, and the other affiliated Catholic organizations participating in the Archdiocese’s plan received the benefit of that exemption, regardless of whether they independently qualified as “religious employers.” These affiliated organizations, therefore, could
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benefit from the Archdiocese’s or the Diocese’s exemptions even if they, themselves, could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
163. The Final Rule eliminates this safeguard. Instead, it interprets the exemption to require “each employer” to “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. at 39,886. See also 78 Fed. Reg. at 8,467 (NPRM). Thus, because Cardinal Spellman High School, Msgr. Farrell High School, and other affiliated Catholic organizations offering the Archdiocese’s or the Diocese’s health plans to their employees do not meet the Government’s narrow definition of “religious employers,” they are now subject to the U.S. Government Mandate.
164. Moreover, the Archdiocese of New York and Diocese of Rockville Centre are now required by the Mandate to do one of two things: Since non-exempt organizations including Plaintiffs Cardinal Spellman High School and Msgr. Farrell High School participate in the archdiocesan and diocesan health plans, the Archdiocese of New York and Diocese of Rockville Centre are forced to sponsor a plan that will provide the employees of these organizations with “free” abortion-inducing products, contraception, sterilization, and related counseling. Alternatively, the Archdiocese and Diocese will have to no longer extend their plans to these organizations, thereby forcing the organizations to provide the objectionable coverage through another insurance provider or subjecting them to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
165. The first option forces the Archdiocese of New York and Diocese of Rockville Centre to act contrary to their sincerely-held religious beliefs. The second option not only makes the Archdiocese and Diocese complicit in the provision of objectionable coverage, by forcing
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their affiliates out of their plans and to obtain the objectionable coverage through another insurance provider, but also compels the Archdiocese and Diocese to submit to the Government’s interference with their structure and internal operations by accepting an artificial construct that divides churches from their ministries.
166. 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 the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Emeritus Benedict XVI, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The Mandate therefore deeply intrudes into internal Church governance.
167. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government 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. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious Beliefs
168. As Cardinal Dolan observed, “we know so very well that religious freedom is our heritage, our legacy and our firm belief, both as loyal Catholics and Americans.” Indeed, 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
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beliefs. 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.”
169. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
170. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
171. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
172. As a corollary, Plaintiffs’ Catholic beliefs prohibit them from contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs’ employees.
173. Plaintiffs’ beliefs are deeply and sincerely held. 174. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit—provide, pay for, and/or facilitate access to objectionable products and services or else incur crippling sanctions. 175. The U.S. Government Mandate thus imposes a substantial burden on Plaintiffs’ religious beliefs. 176. The Mandate’s exemption for “religious employers” does not alleviate the burden. 177. The “religious employers” exemption does not apply to numerous Catholic employers in the Archdiocese and Diocese, including Plaintiffs ArchCare, Cardinal Spellman High School, Msgr. Farrell High School, or CHSLI.
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178. Although Plaintiffs Archdiocese of New York and Diocese of Rockville Centre are “religious employers,” the Mandate still requires them either to (1) sponsor a plan that will provide Plaintiff Cardinal Spellman High School, Plaintiff Msgr. Farrell High School, and other affiliated Catholic organizations with access to the objectionable products and services, or (2) no longer extend their plans to these organizations, subjecting the organizations to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
179. The first option forces the Archdiocese and Diocese to act contrary to their sincerely-held religious beliefs.
180. The second option not only makes the Archdiocese of New York and the Diocese of Rockville Centre complicit in the provision of objectionable coverage, by forcing their affiliates out of their plans and to obtain the objectionable coverage through another insurance provider, but also compels the Archdiocese of New York and Diocese of Rockville Centre to submit to the Government’s interference with their structure and internal operations by accepting a construct that divides churches from their ministries.
181. The so-called “accommodation” does not alleviate the burden on Plaintiffs’ sincerely held religious beliefs.
182. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
183. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services.
184. Finally, Plaintiffs cannot avoid the U.S. Government Mandate without incurring crippling fines. If they eliminate their employee health plans, they are subject to annual fines of
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$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 $100 a day per affected beneficiary. The fines therefore coerce Plaintiffs into violating their religious beliefs.
185. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” the promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 186. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
187. 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.” 75 Fed. Reg. at 41,732. Elsewhere, the Government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010), available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, “191 million Americans
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belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
188. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. §§ 4980D(d) (exempting small employers from penalties imposed for failing to provide the objectionable services), 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
189. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt “religious employers,” but not of other religious organizations that remain subject to the Mandate.
190. 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. Defendant Sebelius has long supported abortion rights and criticized 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, Defendant Sebelius said, “we are in a war,” and criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser. She added: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” In addition, the Mandate was modeled on a
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California law that was motivated by discriminatory intent against religious groups that oppose contraception.
191. Consequently, the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion, sterilization, and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
192. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
193. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
194. Even assuming the Government’s asserted interest were 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 through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government
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therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
195. The U.S. Government 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. Plaintiffs Archdiocese of New York and Diocese of Rockville Centre serve New Yorkers through their many charitable programs and through the education of students in their respective school systems. Cardinal Spellman High School and Msgr. Farrell High School educate religiously and ethnically diverse student bodies, preparing them for college and encouraging them to become leaders. CHSLI provides care for hundreds of thousands of Long Islanders each year, and ArchCare cares for frail and vulnerable people unable to fully care for themselves. 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 U.S. Government Mandate, however, puts these good works in jeopardy.
196. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate.
IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 197. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 198. On June 28, 2013, Defendants finalized the U.S. Government Mandate, including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the
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NPRM. 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.
199. For all Plaintiffs, their next plan year begins on January 1, 2014. 200. 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 be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs. 201. The U.S. Government Mandate is also harming Plaintiffs in other ways. 202. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, employers that are self-insured—like the Archdiocese of New York, ArchCare, the Diocese of Rockville Centre, and CHSLI—after consulting with actuaries, must negotiate with their third-party administrators. 203. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year many months before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex. 204. The Archdiocese of New York and Diocese of Rockville Centre face the additional complexity of having to chose between two alternatives—both of which violate their sincerely-held religious beliefs—with respect to affiliated, non-exempt organizations that use the Archdiocesan or Diocesan plans: (1) sponsor plans that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of these organizations; or
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Case 1:12-cv-02542-BMC Document 69 Filed 08/14/13 Page 57 of 69 PageID #: 1084 (2) expel them from their respective self-insurance plans, which, in turn, will require those organizations to provide, pay for, and/or facilitate access to the objectionable products and services. If the Archdiocese and/or the Diocese choose the latter option, the non-exempt affiliates will need time to select and set up a new health care plan for employees.
205. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
206. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them.
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V. CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA 207. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 208. 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 furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 209. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 210. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 211. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling in a manner that is directly contrary to their religious beliefs. 212. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 213. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate. 214. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest. 215. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA. 216. Plaintiffs have no adequate remedy at law.
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217. 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 218. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 219. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 220. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 221. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling in a manner that is directly contrary to their religious beliefs. 222. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 223. The U.S. Government Mandate is not a neutral law of general applicability because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling. 224. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent. 225. 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, free association, and freedom from excessive government entanglement with religion.
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226. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
227. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
228. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
229. Plaintiffs have no adequate remedy at law. 230. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 231. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 232. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 233. The First Amendment protects organizations as well as individuals against compelled speech. 234. Expenditures are a form of speech protected by the First Amendment. 235. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 236. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that provide, pay for, and/or facilitate access to products and services that violate Plaintiffs’ religious beliefs.
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237. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services.
238. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees.
239. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees.
240. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
241. The U.S. Government Mandate furthers no compelling governmental interest. 242. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 243. Plaintiffs have no adequate remedy at law. 244. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 245. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 246. 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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247. 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.
248. Plaintiffs have no adequate remedy at law. 249. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 250. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 251. 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. 252. 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. 253. The “religious employer” exemption violates the Establishment Clause in two ways. 254. 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. 255. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment
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Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of 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 “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
256. Plaintiffs have no adequate remedy at law. 257. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 258. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 259. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act 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. 260. Under these Clauses, 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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261. Under these Clauses, 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.
262. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 263. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral and prohibits Catholic organizations from condoning or facilitating those practices. 264. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 265. 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. 266. Plaintiffs Archdiocese of New York and Diocese of Rockville Centre have further made the internal decision to offer health insurance coverage through their plans to affiliated religious entities and their employees, including Plaintiffs Cardinal Spellman High School and Msgr. Farrell High School. 267. 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 beliefs. 268. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to provide, pay for, and/or facilitate practices that directly conflict with their religious beliefs. 269. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the
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Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
270. Plaintiffs have no adequate remedy at law. 271. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 272. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 273. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 274. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are not in accordance with law and therefore in violation of the APA. 275. 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.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 276. 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.
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277. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
278. The U.S. Government Mandate violates RFRA. 279. The U.S. Government Mandate violates the First Amendment. 280. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 281. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 282. Plaintiffs have no adequate remedy at law. 283. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Erroneous Interpretation of the Exemption with Respect to Multi-Employer Plans 284. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 285. 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). 286. 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.
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287. 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.
288. 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.
289. 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.”
290. Nonetheless, when issuing the Final Rule, Defendants reversed course, rejecting a “plan-based approach” and adopting an “employer-by-employer approach” whereby “each employer [must] independently meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed. Reg. at 39,886.
291. An employer-based approach contradicts the plain text of the regulation, which exempts “group health plan[s],” not individual employers.
292. The Archdiocese of New York and Diocese of Rockville Centre 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.
293. Defendants’ erroneous interpretation of the religious employer exemption, however, precludes the Archdiocese’s and Diocese’s affiliated entities that do not meet the definition of a “religious employer,” including Plaintiffs Cardinal Spellman High School and
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Msgr. Farrell High School, from obtaining the benefit of the exemption by participating in the exempt group health plans established and maintained by the Archdiocese and the Diocese.
294. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
295. Plaintiffs have no adequate remedy at law. 296. Defendants’ erroneous interpretation 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; 6. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988, and costs;
and 7. Award all other relief as the Court may deem just and proper.
JURY DEMAND Plaintiffs demand a trial by jury for all issues so triable as a matter of right.
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Dated: August 14, 2013 New York, New York

Respectfully submitted,
JONES DAY
/s/ Charles M. Carberry Charles M. Carberry Todd R. Geremia Toni-Ann Citera Patrick J. Smith Julie A. Rosselot 222 East 41st Street New York, New York 10017-6702 Telephone: (212) 326-3939 Facsimile: (212) 755-7306
Attorneys for Plaintiffs

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 Case 1:12-cv-02542-BMC Document 117 Filed 12/16/13 Page 1 of 2 PageID #: 4026

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------- X

:

THE ROMAN CATHOLIC ARCHDIOCESE :

OF NEW YORK, et al.,

:

:

Plaintiffs,

: 12 Civ. 2542 (BMC)

:

- against -

:

:

KATHLEEN SEBELIUS, in her official

:

capacity as Secretary, United States

:

Department of Health and Human Services, :

et al.,

:

:

Defendants.

:

:

----------------------------------------------------------- X

FINAL JUDGMENT AND INJUNCTION

The Court, having considered the parties’ cross-motions for summary judgment, and

having entered its Memorandum Decision and Order dated December 13, 2013, granting in part

and denying in part the parties’ motions for summary judgment, thereby directing dismissal of

the claims of the Roman Catholic Archdiocese of New York and the Roman Catholic Diocese of

Rockville Centre, New York, and entry of judgment in favor of Catholic Health Care System,

Catholic Health Services of Long Island; Cardinal Spellman High School; and Monsignor Farrell

High School (the “prevailing plaintiffs”), it is hereby:

ORDERED, ADJUDGED, AND DECREED, as follows:

1. Defendants are each ENJOINED and RESTRAINED from enforcing or

implementing the challenged regulations, which require the prevailing plaintiffs and their

respective health plans to provide, or execute a self-certification to enable a third party

administrator to provide, health insurance coverage for all Food and Drug Administration-

Case 1:12-cv-02542-BMC Document 117 Filed 12/16/13 Page 2 of 2 PageID #: 4027

approved contraceptive methods, sterilization procedures, and patient education and counseling concerning these subjects, including 45 C.F.R. §§147.130, 147.131, against the prevailing plaintiffs.

2. Any party may seek modification of this Order, at any time, by written motion and for good cause based on changed circumstances or otherwise.

3. This Court shall retain jurisdiction to enforce this Final Judgment and Injunction.

SO ORDERED.
Dated: Brooklyn, New York December 13, 2013

Digitally signed by Brian M. _C_o__g_a_n_____________________________
U.S.D.J.

2

 
 Case 1:12-cv-02542-BMC Document 118 Filed 02/11/14 Page 1 of 2 PageID #: 4028

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

)

THE ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, et al.,

) ) )

Plaintiffs,

) )

v.

) ) Case No. 1:12-cv-2542

)

KATHLEEN SEBELIUS, in her official

) NOTICE OF APPEAL

capacity as Secretary, United States

)

Department of al.

Health and Human Services, et

) ) )

)

)

Defendants.

)

)

PLEASE TAKE NOTICE that Defendants, Kathleen Sebelius, in her official capacity as

Secretary of the United States Department of Health and Human Services; the United States

Department of Health and Human Services; Thomas Perez, in his official capacity as Secretary

of the United States Department of Labor; the United States Department of Labor; Jacob L. Lew,

in his official capacity as Secretary of the United States Department of the Treasury; and the

United States Department of the Treasury, hereby appeal to the United States Court of Appeals

for the Second Circuit from the Memorandum Decision and Order, ECF No. 116, and Final

Judgment and Injunction, ECF No. 117, entered on December 16, 2013.

Respectfully submitted this 11th day of February, 2014,

STUART F. DELERY Assistant Attorney General

LORETTA E. LYNCH United States Attorney Eastern District of New York

JENNIFER RICKETTS Director

1

Case 1:12-cv-02542-BMC Document 118 Filed 02/11/14 Page 2 of 2 PageID #: 4029 SHEILA M. LIEBER Deputy Director _/s/ Benjamin L. Berwick_____________________ BENJAMIN L. BERWICK (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20530 Tel: (202) 305-8573 Fax: (202) 616-8470 Email: Benjamin.L.Berwick@usdoj.gov Attorney for Defendants
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 Case 14-427, Document 213-1, 08/07/2015, 1571124, Page1 of 47

14-427-cv Catholic Health Care System, et al. v. Burwell, et al.

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

____________________

4

5

August Term, 2014

6

7 (Argued: January 22, 2015

Decided: August 7, 2015)

8

9

Docket No. 14-427-cv

10

____________________

11

12 CATHOLIC HEALTH CARE SYSTEM, CATHOLIC HEALTH

13 SERVICES OF LONG ISLAND, CARDINAL SPELLMAN HIGH

14 SCHOOL, MONSIGNOR FARRELL HIGH SCHOOL,

15

16

Plaintiffs-Appellees,

17

18

v.

19

20 SYLVIA MATHEWS BURWELL, in her official capacity as

21 Secretary of the United States Department of Health and Human

22 Services, UNITED STATES DEPARTMENT OF HEALTH AND

23 HUMAN SERVICES, THOMAS PEREZ, in his official capacity as

24 Secretary of the United States Department of Labor, UNITED

25 STATES DEPARTMENT OF LABOR, JACOB L. LEW, in his

26 official capacity as Secretary of the United States Department of

27 Treasury, UNITED STATES DEPARTMENT OF TREASURY,

28

29

Defendants-Appellants.1

1 The Clerk of the Court is directed to amend the caption as above. Sylvia Mathews Burwell is automatically substituted for Kathleen Sebelius pursuant to Fed. R. App. P. 43(c)(2).

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1

____________________

2 Before: LEVAL, POOLER, and CHIN, Circuit Judges.

3

4

Appeal from the United States District Court for the Eastern District of

5 New York (Cogan, J.) granting, in relevant part, Plaintiffs-Appellees’ motion for

6 summary judgment and denying, in relevant part, Defendants-Appellants’ cross-

7 motion for summary judgment. We reverse, concluding that regulations

8 promulgated under the Patient Protection and Affordable Care Act that allow

9 religious non-profit employers to opt out of providing contraceptive coverage do

10 not themselves substantially burden Plaintiffs’ religious exercise in violation of

11 the Religious Freedom Restoration Act.

12

Reversed.

13

____________________

14

MEGAN BARBERO, Attorney, Appellate Staff, United

15

States Department of Justice (Stuart F. Delery, Assistant

16

Attorney General, Beth S. Brinkmann, Deputy Assistant

17

Attorney General, Mark B. Stern, Alisa B. Klein, Adam

18

C. Jed, Patrick G. Nemeroff, Attorneys, Appellate Staff,

19

Kelly T. Currie, Acting United States Attorney for the

20

Eastern District of New York, on the brief), Washington,

21

DC, for Defendants-Appellants.

22

23

TODD R. GEREMIA (Charles M. Carberry, Toni-Ann

24

Citera, Patrick J. Smith, Julie R. Gorla, on the brief), Jones

25

Day, New York, NY, for Plaintiffs-Appellees.

2

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1

Mailee R. Smith, Americans United for Life, Washington

2

DC, for Amici Curiae Association of American Physicians

3

and Surgeons, et al.

4

5

Ayesha N. Khan, Americans United for Separation of

6

Church and State, Washington, DC, for Amici Curiae

7

Americans United for Separation of Church and State, et al.

8

9

Charles E. Davidow, Paul, Weiss, Rifkind, Wharton &

10

Garrison LLP (Andrée J. Goldsmith, Karin Dryhurst,

11

Paul, Weiss, Rifkind, Wharton & Garrison LLP; Marcia

12

D. Greenberger, Judith G. Waxman, Emily J. Martin,

13

Gretchen Borchelt, Leila Abolfazli, National Women’s

14

Law Center, on the brief), Washington, DC, for Amici

15

Curiae National Women’s Law Center, et al.

16

17

Martha Jane Perkins (Dipti Singh, on the brief), National

18

Health Law Program, Carrboro, NC, for Amici Curiae

19

National Health Law Program, et al.

20

21 POOLER, Circuit Judge:

22

Defendants-Appellants, the Secretaries of Health and Human Services,

23 Labor, and the Treasury, appeal from the December 16, 2013 order of the United

24 States District Court for the Eastern District of New York (Cogan, J.) which, in

25 relevant part, granted Plaintiffs-Appellees’ motion for summary judgment and

26 denied Defendants-Appellants’ cross-motion for summary judgment. The district

27 court concluded that regulations promulgated under the Patient Protection and

28 Affordable Care Act that allow religious non-profit employers to opt out of

3

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1 providing contraceptive coverage themselves violate these religious employers’

2 rights under the Religious Freedom Restoration Act. We reverse, concluding that

3 the challenged accommodation for religious objectors relieves, rather than

4 imposes, any substantial burden on Plaintiffs’ religious exercise, and thus does

5 not violate the Religious Freedom Restoration Act.

6

BACKGROUND

7

I. Statutory and Regulatory Background

8

This case concerns regulations promulgated under the Patient Protection

9 and Affordable Care Act of 2010 (the “ACA”), Pub. L. No. 111-148, 124 Stat. 119.

10 The ACA generally requires employers with fifty or more full-time employees to

11 offer “a group health plan or group health insurance coverage” that provides

12 “minimum essential coverage.” 26 U.S.C. § 5000A(f)(2); id. § 4980H(a)(1), (c)(2).

13 Unless an exception applies, as part of this minimal essential coverage, the ACA

14 requires an employer’s group health plan or group health insurance coverage to

15 furnish “preventive care and screenings” for female employees without “any cost

16 sharing requirements.” 42 U.S.C. § 300gg-13(a)(4). Without “cost sharing

17 requirements” means without requiring plan participants and beneficiaries to

18 make copayments or pay deductibles or coinsurance. See 45 C.F.R. §

4

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1 147.131(c)(2)(ii). An employer whose health plan does not include the required

2 coverage is subject to penalties of $100 per day, per affected beneficiary. 26 U.S.C.

3 § 4980D(b). An employer who drops employee health care coverage altogether is

4 generally subject to a penalty of $2000 per year, per employee, after the first thirty

5 employees. Id. § 4980H(a), (c)(1), (c)(2)(D)(i).

6

The ACA does not specify what types of preventive care must be covered

7 for female plan participants and beneficiaries. Instead, Congress left that issue to

8 be determined via regulation by the Health Resources and Services

9 Administration (“HRSA”), a division of the Department of Health and Human

10 Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4). In developing guidelines for

11 preventative health services for women, HRSA requested the assistance of the

12 Institute of Medicine (“IOM”), an arm of the National Academy of Sciences

13 established in 1970 to inform health policy with available scientific information.

14 See Group Health Plans and Health Insurance Issuers Relating to Coverage of

15 Preventive Services Under the Patient Protection and Affordable Care Act, 77

16 Fed. Reg. 8725, 8726 (Feb. 15, 2012); Priests for Life v. U.S. Dep’t of Health & Human

17 Servs., 772 F.3d 229, 238 (D.C. Cir. 2014).

18

In August 2011, consistent with IOM’s recommendations, HRSA

5

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1 promulgated the Women’s Preventive Services Guidelines, which generally

2 require non-exempt employers to provide “coverage, without cost sharing, for all

3 Food and Drug Administration (FDA) approved contraceptive methods,

4 sterilization procedures, and patient education and counseling for all women

5 with reproductive capacity, as prescribed by a [health care] provider.” 77 Fed.

6 Reg. at 8725 (internal quotation marks and alterations omitted). These

7 contraceptive coverage requirements were subsequently enacted by the three

8 agencies responsible for the ACA’s implementation – the Department of the

9 Treasury, the Department of Labor, and HHS. See 26 C.F.R. § 54.9815-

10 2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). We

11 refer to this required coverage as the “contraceptive coverage mandate.”

12

The ACA and its implementing regulations create an exemption from the

13 contraceptive coverage mandate for “religious employer[s],” a category that

14 encompasses “churches, their integrated auxiliaries, and conventions or

15 associations of churches,” as well as “the exclusively religious activities of any

16 religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii); 45 C.F.R. § 147.131(a). The

17 government created this exemption in response to concerns from religious

18 groups objecting to the contraceptive coverage mandate.

6

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1

In response to continued objections from religiously-affiliated

2 organizations that did not qualify for the “religious employer” exemption, the

3 government also crafted the so-called “accommodation,” which applies more

4 broadly to religious non-profit organizations that object to providing

5 contraceptive coverage. The accommodation was so named because it allows

6 religious employers to opt out of paying for objectionable medical services

7 without denying these services to employees who may or may not share the

8 religious beliefs of their employer. Under the applicable regulations, an

9 organization is eligible for this accommodation if it satisfies the following criteria:

10

(1) The organization opposes providing coverage for some or all of any

11

contraceptive services required to be covered under § 147.130(a)(1)(iv) on

12

account of religious objections.

13

14

(2) The organization is organized and operates as a nonprofit entity.

15

16

(3) The organization holds itself out as a religious organization.

17

18

(4) The organization self-certifies, in a form and manner specified by

19

the Secretary, that it satisfies the criteria in paragraphs (b)(1) through

20

(3) of this section, and makes such self-certification available for

21

examination upon request by the first day of the first plan year to

22

which the accommodation in paragraph (c) of this section applies. . . .

23

24 45 C.F.R. § 147.131(b); see also 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-

7

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1 2713A(a). We refer to organizations that meet these criteria as “eligible 2 organizations.”2

3

By way of background, eligible organizations generally provide their

4 employees insurance in one of two ways. Employers are said to have an

5 “insured” plan if they contract with an insurance company for insurance – the

6 insurance company bears the financial risk of paying health insurance claims.

7 Other employers, like the Plaintiffs here, who bear the financial risk of paying

8 claims themselves, are said to have “self-insured” plans. Many self-insured

9 employers use insurance companies or other third parties to administer their

10 plans, performing functions such as developing networks of providers,

11 negotiating payment rates, and processing claims. In this context, the insurance

12 company or other third party is called a “third-party administrator” or “TPA.”

13 See generally Congressional Budget Office, Key Issues in Analyzing Major Health

14 Insurance Proposals 6 (2008).

2 Revisions to these regulations extending the accommodation to closely held for-profit entities with similar religious objections are scheduled to take effect September 14, 2015. See Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318, 41,318, 41,323 (July 14, 2015).
8

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1

Under the regulations, an eligible organization is not required “to contract,

2 arrange, pay, or refer for contraceptive coverage” to which it has religious

3 objections. Coverage of Certain Preventive Services Under the Affordable Care

4 Act, 78 Fed. Reg. 39,870, 39,874 (July 2, 2013). To be relieved of these obligations,

5 an eligible organization has two options. First, it can complete a notification form

6 issued by the Department of Labor, indicating that it has a religious objection to

7 providing coverage for the required contraceptive services, and send a copy to its

8 insurance company or third-party administrator. See id. at 39,875; see also 29

9 C.F.R. § 2590.715-2713A(a)(4), (b)(1)(ii)(A), (c)(1)(i). This one-page self-

10 certification form requires only the name of the organization, and the name, title,

11 and contact information of the person signing it. See Department of Labor, EBSA

12 Form 700, http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganization

13 certificationform.pdf.

14

Second, an alternative notification option stems from the Supreme Court’s

15 orders in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134

16 S. Ct. 1022 (2014), and Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). In both

17 orders, the Supreme Court granted injunctions pending appeal to non-profits

18 covered by the accommodation, providing that instead of self-certifying using the

9

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1 Department of Labor’s one-page form, they could instead send a letter to HHS 2 detailing their religious objections in their own words. HHS, in turn, would then 3 be responsible for informing the non-profits’ third-party administrators to begin 4 providing separate contraceptive coverage to the non-profits’ employees. In 5 August 2014, long after the district court’s judgment in this case, HHS issued new 6 interim final rules for non-profits that essentially codified these orders. See 7 Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. 8 Reg. 51,092, 51,092 (Aug. 27, 2014). These rules were finalized in July 2015. See 9 Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. 10 Reg. 41,318, 41,323 (July 14, 2015). Under the new rules, an eligible organization 11 can choose to either fill out the Department of Labor’s form and send it to its 12 third-party administrator, or it can write to HHS directly using its own words or 13 a sample letter provided by HHS. This notice to the government is not required 14 to take a particular form, but must include information on the entity’s plan name 15 and type, along with “the name and contact information for any of the plan’s 16 third-party administrators and health insurance issuers.” 29 C.F.R. § 17 2590.715–2713A(b)(1)(ii)(B), (c)(1)(ii).
10

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1

Once an eligible organization chooses to take advantage of the

2 accommodation and notifies its third-party administrator or HHS by using one of

3 the methods specified by the regulations, the plan’s participants and beneficiaries

4 will generally still have access to contraceptive coverage without cost sharing

5 through alternative mechanisms established by government regulations. When

6 an eligible organization that chooses not to provide contraceptive coverage has a

7 “self-insured” plan like the Plaintiffs’ plans here, the regulations, depending on 8 the type of plan, either require or incentivize3 the third-party administrator to

9 provide or arrange its own separate payments for contraceptive services for plan

10 participants and beneficiaries. 29 C.F.R. § 2590.715-2713A(b)(2). Importantly, the

11 regulations require the third-party administrator to fully divorce the eligible

12 organization from payments for contraceptive coverage. See id. § 2590.715-

3 When employers with self-insured plans offer insurance through what is known as a “church plan,” the government lacks authority under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), to regulate the third-party administrators that administer the plans. 29 U.S.C. §§ 1002(33), 1003(b)(2). Thus, rather than requiring third-party administrators to offer contraceptive coverage once an eligible organization opts out, the regulations incentivize such coverage by providing reimbursement in excess of costs for third-party administrators. See 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d). Here, all of the Plaintiffs offer health coverage through selfinsured church plans.
11

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1 2713A(b)(2)(i). The regulations bar the third-party administrator from imposing

2 any premium, fee or other charge, directly or indirectly, on the eligible

3 organization or the group health plan with respect to payments for contraceptive

4 services. See id. Instead, the third-party administrator may seek reimbursement

5 for payments for contraceptive services directly from the federal government. See

6 id. § 2590.715-2713A(b)(3); see also 45 C.F.R. § 156.50(d). Third-party

7 administrators are required to “segregate” accounting for contraceptive coverage

8 from the eligible organization’s plan excluding such coverage. 29 C.F.R. § 9 2590.715-2713A(c)(2)(ii).4

10

In addition, an eligible organization that opts out of providing

11 contraceptive coverage has no obligation to inform plan participants and

4 Similarly, when an eligible organization that chooses not to provide coverage has an insured plan, the health insurance company that issues the policy for that organization is required by regulation to provide separate payments for contraceptive services for plan participants and beneficiaries. See 45 C.F.R. § 147.131(c)(2). The insurance issuer may not impose any premium, fee, or other charge, directly or indirectly, on the eligible organization or the group health plan with respect to the issuer’s payments for contraceptive services. See id. § 147.131(c)(2)(ii). The insurance issuer must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the . . . plan,” id. § 147.131(c)(2)(i)(A), and “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services,” id. § 147.131(c)(2)(ii).
12

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1 beneficiaries of the availability of these separate payments made by third parties.

2 Instead, the third-party administrator itself provides this notice, and does so

3 “separate from” materials that are distributed in connection with the eligible

4 organization’s group health coverage. Id. § 2590.715-2713A(d). Third-party

5 administrators bear the burden of contacting beneficiaries, and eligible

6 organizations are not required to provide these entities the names of their

7 beneficiaries or otherwise coordinate these notices. See id. § 2590.715-2713A(b)(4),

8 (c)(1)(i); Priests for Life, 772 F.3d at 254 (noting that “[n]o regulation related to the

9 accommodation imposes any such duty on Plaintiffs”). Furthermore, the third-

10 party administrator’s notice must make clear that the eligible organization is

11 neither administering nor funding the contraceptive benefits, specifying that “the

12 eligible organization does not administer or fund contraceptive benefits, but that

13 the third party administrator or issuer, as applicable, provides separate payments

14 for contraceptive services.” 29 C.F.R. § 2590.715-2713A(d).

15

II. Factual Background and Procedural History

16

The relevant plaintiffs on appeal are a group of religious non-profit

17 organizations affiliated with the Roman Catholic Church.5 Plaintiffs Cardinal

5 The plaintiffs below also included the Roman Catholic Archdiocese of 13

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1 Spellman High School and Monsignor Farrell High School are non-profit

2 Catholic high schools located in the Bronx and Staten Island, respectively. As

3 affiliated entities of the Roman Catholic Archdiocese of New York, Cardinal

4 Spellman and Monsignor Farrell offer health insurance to their employees under

5 the Archdiocese’s self-insured health plan, which is administered by United

6 Healthcare and CVS Caremark as third-party administrators. Plaintiff Catholic

7 Health Care System (also known as ArchCare) is a non-profit organization that

8 provides health coverage to more than 1000 employees and their dependents

9 under a self-insured plan administered by Emblem Health and CVS Caremark.

10 Plaintiff Catholic Health Services of Long Island is a non-profit organization that

11 provides health coverage to approximately 11,000 employees and their

12 dependents under three self-insured plans administered by Empire BlueCross

13 BlueShield and Express Scripts.

14

While none of these entities qualify as “religious employers” under the

15 exemption to the contraceptive coverage mandate, all of them are eligible for the

New York and the Roman Catholic Diocese of Rockville Centre, New York – both of whom are exempt from the contraceptive coverage mandate as religious employers – as well as Catholic Charities of the Diocese of Rockville Centre. The district court dismissed the claims of these plaintiffs and these decisions are not challenged on appeal.
14

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1 accommodation to the mandate. Nevertheless, Plaintiffs contend that the
2 contraceptive coverage mandate, including the accommodation, violates their
3 rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb
4 et seq. RFRA provides that the government “shall not substantially burden a
5 person’s exercise of religion” unless the application of that burden is the least
6 restrictive means of furthering a compelling governmental interest. 42 U.S.C. §
7 2000bb-1. As affiliates of the Catholic Church, Plaintiffs adhere to the Church’s
8 teachings that life begins at the moment of conception, and that “abortion9 inducing” products, contraception, and sterilization are immoral.6 Plaintiffs’
10 beliefs forbid them from taking actions that would make them complicit in the
11 delivery of these services, and thus they believe that they are prohibited from
12 paying for, providing, or facilitating access to contraception. Plaintiffs argue that
6 Plaintiffs contend that some forms of contraception can induce an abortion. While we do not doubt the sincerity of their beliefs, we note that the contraceptive coverage mandate deals only with drugs that fall within the FDA’s definition of “contraception,” not drugs which the FDA qualifies as “abortioninducing.” See 77 Fed. Reg. at 8725 (requiring coverage only for all “[FDA] approved contraceptive methods” and “sterilization procedures” (alterations and internal quotation marks omitted)). We recognize that Plaintiffs do not accept the FDA’s proposition and argue that some of the covered methods are abortioninducing. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014) (“The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”).
15

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1 opting out of the coverage requirement substantially burdens their religious

2 exercise because they believe that by doing so, they facilitate access to products

3 and services they find objectionable. Thus, Plaintiffs contend that the ACA leaves

4 them with the choice of: (1) providing contraceptive coverage in violation of their

5 religious beliefs, (2) paying significant penalties for failing to provide the

6 required health coverage, or (3) utilizing an accommodation which also forces

7 them to violate their religious beliefs.

8

Plaintiffs brought suit in district court challenging the contraceptive

9 coverage mandate under RFRA and seeking an injunction barring its 10 enforcement.7 On December 16, 2013, the district court granted Plaintiffs

11 summary judgment on their RFRA claim and denied the government’s cross-

12 motion for summary judgment as to this claim. The district court concluded that

13 the accommodation placed a substantial burden on Plaintiffs’ exercise of religion,

14 and that the government failed to show that the accommodation was the least

15 restrictive means to advance a compelling governmental interest. The district

7 Plaintiffs, along with the Roman Catholic Archdiocese of New York, the Roman Catholic Diocese of Rockville Centre, New York, and Catholic Charities of the Diocese of Rockville Centre, also pressed other statutory and constitutional claims not relevant here.
16

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1 court enjoined enforcement of the contraceptive coverage mandate against

2 Plaintiffs and entered final judgment.

3

III. Parallel Proceedings

4

Plaintiffs’ challenge to the contraceptive coverage mandate is not unique.

5 Religious non-profit organizations throughout the country have brought similar

6 RFRA challenges. In the time since the district court issued its opinion, six

7 circuits have rejected these claims, either on the merits or by denial of a

8 preliminary injunction. See Little Sisters of the Poor Home for the Aged, Denver, Colo.

9 v. Burwell, --- F.3d ----, 2015 WL 4232096, at *3 (10th Cir. July 14, 2015); E. Tex.

10 Baptist Univ. v. Burwell, --- F.3d ----, 2015 WL 3852811, at *1 (5th Cir. June 22,

11 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 619 (7th Cir. 2015); Geneva Coll.

12 v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 442 (3d Cir. 2015);

13 Priests for Life, 772 F.3d at 237; Mich. Catholic Conference & Catholic Family Servs. v.

14 Burwell, 755 F.3d 372, 390 (6th Cir. 2014), vacated and remanded, 135 S. Ct. 1914

15 (2015); see also Wheaton Coll. v. Burwell, --- F.3d ----, 2015 WL 3988356, at *4 (7th

16 Cir. July 1, 2015).

17

These cases are still actively moving through the courts. Similar cases are

18 pending in the Eighth and Eleventh Circuits. See Sharpe Holdings, Inc. v. U.S. Dep’t

17

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1 of Health & Human Servs., No. 14-1507 (8th Cir. argued Dec. 10, 2014); Eternal Word 2 Television Network, Inc. v. U.S. Dep’t of Health & Human Servs., No. 14-12696 (11th 3 Cir. argued Feb. 4, 2015). In addition, in light of the Supreme Court’s opinion in 4 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Eleventh Circuit 5 granted an injunction prohibiting enforcement of the accommodation against the 6 plaintiffs pending appeal. Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t 7 of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014). Earlier this year, the 8 Supreme Court also vacated and remanded both the original Seventh Circuit 9 opinion in University of Notre Dame and the Sixth Circuit opinion, which were 10 decided prior to Hobby Lobby, for further consideration in light of that decision. 11 See Mich. Catholic Conference v. Burwell, 135 S. Ct. 1914 (2015); Univ. of Notre Dame 12 v. Burwell, 135 S. Ct. 1528 (2015). Although the Seventh Circuit reaffirmed its 13 original conclusion on remand, see Univ. of Notre Dame, 786 F.3d at 619, the Sixth 14 Circuit case remains pending. We note also that petitions for certiorari are 15 pending for the decisions of the Third, Fifth, Tenth, and D.C. Circuits. With 16 respect to the Third Circuit’s decision, the Supreme Court declined to recall and 17 stay issuance of the mandate, but enjoined enforcement of the accommodation
18

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1 against the plaintiffs pending disposition of the petition for certiorari. Zubik v.

2 Burwell, 135 S. Ct. 2924 (2015).

3

DISCUSSION

4

“We review de novo a district court’s grant of summary judgment.” Byrne v.

5 Rutledge, 623 F.3d 46, 52 (2d Cir. 2010). We “will affirm only if, construing the

6 evidence in the light most favorable to the nonmoving party, ‘there is no genuine

7 dispute as to any material fact and the movant is entitled to judgment as a matter

8 of law.’” State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126, 131–32 (2d

9 Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). When, as here, we review a district

10 court’s treatment of cross-motions for summary judgment we “evaluate each

11 party’s motion on its own merits, taking care in each instance to draw all

12 reasonable inferences against the party whose motion is under consideration.”

13 Byrne, 623 F.3d at 53 (internal quotation marks omitted).

14

I. The Religious Freedom Restoration Act

15

Under the Free Exercise Clause of the First Amendment, the government

16 may not “prohibit[] the free exercise” of religion. U.S. Const. amend. I. In 1990,

17 the Supreme Court clarified its Free Exercise Clause jurisprudence by holding

18 that the government need not have a compelling governmental interest in order

19

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1 to enact neutral, generally applicable laws that happen to burden religious

2 practice. See Emp’t Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 882–90

3 (1990). While consistent with much of the Supreme Court’s prior free exercise

4 precedent, Smith was arguably in tension with two prior Supreme Court cases,

5 both of which the Smith Court declined to overrule. Id. at 881–85. In these cases,

6 the Court used strict-scrutiny like analysis and asked whether the challenged law

7 substantially burdened a religious practice and, if it did, whether that burden

8 was justified by a compelling governmental interest. See Wisconsin v. Yoder, 406

9 U.S. 205, 220–21 (1972); Sherbert v. Verner, 374 U.S. 398, 405–06 (1963).

10

In response to Smith, Congress enacted RFRA, which provides in relevant

11 part that the “[g]overnment may substantially burden a person’s exercise of

12 religion only if it demonstrates that application of the burden to the person . . . is

13 in furtherance of a compelling governmental interest” and “is the least restrictive

14 means of furthering that compelling governmental interest.” 42 U.S.C. §

15 2000bb-1(b); see also Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011) (noting that by

16 enacting RFRA, Congress “intended to ‘restore the compelling interest test as set

17 forth in Sherbert v. Verner and Wisconsin v. Yoder . . . in all cases where free

18 exercise of religion is substantially burdened.’” (quoting 42 U.S.C. § 2000bb(b)(1))

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1 (citation omitted)). While RFRA’s “compelling interest” prong stems from

2 Sherbert and Yoder, the “least restrictive means” prong was not used pre-Smith.

3 See City of Boerne v. Flores, 521 U.S. 507, 509 (1997). RFRA accordingly employs a

4 strict scrutiny standard that provides “even broader protection for religious

5 liberty” than existed previously. Hobby Lobby, 134 S. Ct. at 2761 n.3. In sum, while

6 “the Free Exercise Clause does not normally ‘inhibit enforcement of otherwise

7 valid laws of general application that incidentally burden religious conduct,’ . . . .

8 RFRA, in contrast, requires strict scrutiny of such laws where the incidental

9 burden on religion is substantial.” Hankins v. Lyght, 441 F.3d 96, 111–12 (2d Cir.

10 2006) (quoting Cutter v. Wilkinson, 544 U.S. 709, 714 (2005)).

11

II. Substantial Burden

12

At the threshold, RFRA requires us to assess whether Plaintiffs have shown

13 a substantial burden on their exercise of religion. See City of Boerne, 521 U.S. at 533

14 (noting that the burden on this issue lies with the religious objector). “[I]f the

15 law’s requirements do not amount to a substantial burden under RFRA, that is

16 the end of the matter.” Priests for Life, 772 F.3d at 244.

17

Here, Plaintiffs argue that the ACA’s contraceptive mandate, including the

18 accommodation, constitutes a substantial burden on their religious exercise by

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1 forcing them to choose among three unacceptable options: (1) provide

2 contraceptive coverage, (2) pay the fines and penalties associated with failure to

3 provide contraceptive coverage, or (3) opt out of the contraceptive coverage

4 mandate via the accommodation, using either method of self-certification.

5

On its face, the final option, designed by the government to (a) extricate

6 employers with religious objections from the provision of contraceptive coverage,

7 and (b) place the burden for such coverage on third-party administrators, would

8 appear to eliminate any substantial burden on Plaintiffs’ religious exercise.

9 Indeed, in Hobby Lobby, the Supreme Court identified this accommodation as a

10 way to alleviate a substantial burden on the religious exercise of for-profit

11 corporations who enjoyed only the first two options. 134 S. Ct. at 2782. Yet

12 Plaintiffs contend that the opposite is true. Plaintiffs believe that by submitting

13 the opt-out notification to the government or their third-party administrators,

14 they are indirectly facilitating the provision to their employees of products and

15 services that have contraceptive and “abortion-inducing” effects, an act which

16 violates their religious beliefs. Thus, although the accommodation shifts the

17 burden of providing contraceptive coverage to others once Plaintiffs avail

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1 themselves of the opt-out mechanism, Plaintiffs nevertheless contend that the

2 regulatory scheme imposes a substantial burden on their exercise of religion.

3

A. Substantiality is an Objective Inquiry

4

In analyzing the substantiality of a burden under RFRA, we employ an

5 objective test. RFRA plaintiffs must show that the government has imposed a

6 burden that is substantial, not simply one that they believe is substantial.

7

To be sure, the government concedes, and we do not doubt, the sincerity of

8 Plaintiffs’ belief that providing, paying for, or facilitating access to contraceptive

9 services is contrary to their faith. Nor do we doubt that, in Plaintiffs’ religious

10 judgment, participation in the accommodation violates this belief. See Priests for

11 Life, 772 F.3d at 247 (“Plaintiffs are correct that they – and not this Court –

12 determine what religious observance their faith commands.”). However,

13 “[a]ccepting the sincerity of Plaintiffs’ beliefs . . . does not relieve this Court of its

14 responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious

15 exercise.” Id. Although a court accepts a litigant’s sincerely held religious beliefs,

16 it must assess the nature of a claimed burden on religious exercise to determine

17 whether, as an objective legal matter, that burden is “substantial” under RFRA.

18 As other circuits have recognized, “[w]hether a law substantially burdens

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1 religious exercise under RFRA is a question of law for courts to decide, not a

2 question of fact.” Id.; see also Little Sisters of the Poor, 2015 WL 4232096, at *18–19;

3 E. Tex. Baptist Univ., 2015 WL 3852811, at *5; Geneva Coll., 778 F.3d at 442;

4 Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (“[a]ccepting as true the

5 factual allegations that [plaintiff’s] beliefs are sincere and of a religious nature –

6 but not the legal conclusion, cast as a factual allegation, that his religious exercise

7 is substantially burdened”).

8

Plaintiffs urge a contrary position, contending that when accepting a RFRA

9 plaintiff’s religious beliefs, a court must also accept the plaintiff’s assessment of

10 the magnitude of any burden on their religious exercise. Yet this conclusion

11 would “read out of RFRA the condition that only substantial burdens on the

12 exercise of religion trigger the compelling interest requirement.” Henderson v.

13 Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001); see also Duncan v. Walker, 533 U.S. 167,

14 174 (2001) (“It is our duty to give effect, if possible, to every clause and word of a

15 statute.” (internal quotation marks omitted)). If RFRA plaintiffs needed only to

16 assert that their religious beliefs were substantially burdened, federal courts

17 would be reduced to rubber stamps, and the government would have to defend

18 innumerable actions under demanding strict scrutiny analysis. See Mahoney v.

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1 Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (concluding that judicial inquiry into the

2 substantiality of the burden “prevent[s] RFRA claims from being reduced into

3 questions of fact, proven by the credibility of the claimant”). As the D.C. Circuit

4 has recognized, this position would require us to “accept a RFRA claimant’s

5 understanding of what the challenged law requires her to do (or to refrain from

6 doing), even if that subjective understanding is at odds with what the law

7 actually requires.” Priests for Life, 772 F.3d at 249; see also Univ. of Notre Dame, 786

8 F.3d at 621 (Hamilton, J., concurring) (“Notre Dame . . . contends, in effect, that

9 its religious belief can substitute for legal analysis regarding the operation of

10 federal law.”). Rejecting this possibility, we conclude that the fact that a RFRA

11 plaintiff considers a regulatory burden substantial does not make it a substantial

12 burden. Were it otherwise, no burden would be insubstantial.

13

Contrary to Plaintiffs’ suggestions, Hobby Lobby did not collapse the

14 distinction between beliefs and substantial burden, such that the latter could be

15 established simply through the sincerity of the former. It is true that the Supreme

16 Court noted in Hobby Lobby that “it is not for us to say that [plaintiffs’] religious

17 beliefs are mistaken or insubstantial.” 134 S. Ct. at 2779. But that observation

18 related to the significance of the particular belief for the religion – not to the

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1 burden imposed by the governmental requirement. Consistent with a long 2 judicial tradition, Hobby Lobby declined to second-guess the rationality, or 3 demean the significance, of the plaintiffs’ religious beliefs. See id. at 2778 (citing 4 cases). Whether the regulation objected to imposes a substantial burden is an 5 altogether different inquiry. Indeed, subsequent to Hobby Lobby, the Supreme 6 Court has reaffirmed the independence of the belief and burden inquiries. In Holt 7 v. Hobbs, the Court made clear that “[i]n addition to showing that the relevant 8 exercise of religion is grounded in a sincerely held religious belief, petitioner also 9 bore the burden of proving that the Department’s grooming policy substantially 10 burdened that exercise of religion.” 135 S. Ct. 853, 862 (2015) (emphasis added).8 11 Consequently, we cannot agree with Plaintiffs that Hobby Lobby erased RFRA’s 12 substantial burden requirement by leaving the issue to be proven solely through 13 a plaintiff’s affirmation of belief. RFRA does not speak of a burden which the 14 affected person considers substantial. It requires a substantial burden, and 15 assessing substantiality is a matter for a court. 16
8 Holt was decided under RFRA’s companion statute, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq.
26

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1

B. The Accommodation Imposes No Substantial Burden

2

Applying this objective analysis to the accommodation, we conclude that

3 Plaintiffs have failed to show a substantial burden. The regulatory

4 accommodation here operates in a straightforward fashion. In order to be

5 excused from the contraceptive coverage mandate, an eligible organization must

6 send a single sheet of paper communicating its eligibility and religious objection.

7 29 C.F.R. § 2590.715-2713A(b)(1)(ii). Once an eligible organization expresses its

8 desire to have no involvement in the provision of contraceptive coverage, the

9 government requires no further action of the organization. Instead, the

10 regulations effectuate this separation by enlisting other entities to fill the gap. The

11 regulations require or incentivize insurers and third-party administrators to

12 directly offer separate coverage for contraceptive services to insured employees

13 who want it, and to inform beneficiaries that their objecting employer has no role

14 in facilitating this coverage. Id. § 2590.715-2713A(b)(2), (d). In the process, eligible

15 organizations are provided the opportunity to freely express their religious

16 objection to such coverage as well as to extricate themselves from its provision.

17 At the same time, insured individuals are not deprived of the benefits of

18 contraceptive coverage.

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1

Thus, under the challenged regulatory scheme, the only obligation actually

2 imposed on Plaintiffs is identifying themselves as religious objectors. Through a

3 modicum of paperwork, an eligible organization throws the entire administrative

4 and financial burden of providing contraceptive coverage on its insurer or third-

5 party administrator, generally organizations with no objection to providing

6 contraceptive coverage. Indeed, in discussing the opt-out mechanism in Hobby

7 Lobby, the Supreme Court explained that the accommodation “effectively

8 exempt[s]”eligible organizations from the contraceptive coverage mandate. 134 S.

9 Ct. at 2763.

10

Assessing this obligation objectively, we cannot conclude that the simple

11 act of completing the notification form imposes a substantial burden on Plaintiffs’

12 religious exercise. Indeed, in past decisions favoring religious objectors, the

13 burden imposed was considerably more substantial than the burden of

14 notification at issue here. Pre-Smith First Amendment Free Exercise cases, which

15 remain instructive in interpreting RFRA, see Priests for Life, 772 F.3d at 244,

16 involved much more significant effects on the lives of religious objectors. For

17 example, in Sherbert, the plaintiff, a Seventh-day Adventist, was denied

18 unemployment compensation after her employer discharged her because she

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1 refused to work on Saturday, her religion’s day of rest. 374 U.S. at 399–401.

2 Similarly, in Yoder, the statute at issue required the Old Order Amish plaintiffs to

3 send their children to school until the age of sixteen, in violation of their religion.

4 406 U.S. at 207–08. In Thomas v. Review Board of Indiana Employment Security

5 Division, 450 U.S. 707, 709 (1981), a religious pacifist was denied unemployment

6 benefits after he quit his job following a transfer to a department where he was

7 required to work in the production of armaments. Here, by contrast, Plaintiffs are

8 not denied any similar government benefits, nor are they required to do anything

9 besides identify themselves as religious objectors via a one-page form.

10

Cases finding a substantial burden under RFRA have similarly involved

11 much more significant burdens on religious objectors. In Jolly v. Coughlin, 76 F.3d

12 468, 476–77 (2d Cir. 1996), this Court found a substantial burden where the

13 challenged regulations required the plaintiff, a Rastafarian prison inmate, to

14 undergo a physically-invasive and religiously-objectionable medical screening –

15 in essence, to suffer an invasion of his bodily integrity. In Gonzalez v. O Centro

16 Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 425–26 (2006), a substantial

17 burden existed where the Controlled Substances Act, 21 U.S.C. § 801 et seq.,

18 prevented the religious objector plaintiffs from ever again engaging in a

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1 sacramental ritual. More recently, in Hobby Lobby, the Supreme Court found a

2 substantial burden where the contraceptive coverage mandate, in the absence of

3 any accommodation, required for-profit corporations to pay out of pocket for the

4 use of religiously-objectionable contraceptives by thousands of employees or pay

5 significant fines. 134 S. Ct. at 2775–79. And most recently, in Holt, a prison policy

6 requiring a Muslim prisoner to cut his beard throughout his period of

7 incarceration was found to substantially burden his religious beliefs. 135 S. Ct. at

8 862.

9

The burden imposed on Plaintiffs here stands in contrast to these previous

10 cases. “Accurately understood, the opt-out mechanism imposes on Plaintiffs only

11 the de minimis administrative burden associated with completing the self-

12 certification form or the alternative notice.” Priests for Life, 772 F.3d at 253.

13 Viewed objectively, completing a form stating that one has a religious objection is

14 not a substantial burden. To be sure, the notification required of Plaintiffs here

15 certainly imposes some burden. But any imposition from completing the form

16 falls well below the degree of substantial burdensomeness that has historically

17 entitled a RFRA plaintiff (or pre-Smith free exercise plaintiff) to accommodation,

18 or triggered strict scrutiny analysis. See Kaemmerling, 553 F.3d at 678 (noting that

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1 “[a]n inconsequential or de minimis burden on religious practice does not rise to

2 [the] level” of a substantial burden).

3

Indeed, the accommodation here involves the same de minimis burden of

4 notification historically required of religious objectors under statutory and

5 regulatory schemes such as the military draft and medical conscience clauses. See

6 Little Sisters of the Poor, 2015 WL 4232096, at *24 n.31 (“Many religious objection

7 schemes require an affirmative opt out before another person is required to step

8 in and assume responsibility . . . .”). As with other religious objectors, there must

9 be some method by which the government can be notified of the objection.

10 Otherwise there is no way that the government can know which organizations it

11 needs to accommodate. Here, the government has provided flexible, largely

12 effortless, and essentially cost-free options for notification. Plaintiffs have

13 provided us with no case law concluding that a similarly minimal administrative

14 notification of religious objection constitutes a substantial burden.

15

Nevertheless, urging the Court to look beyond the simplicity of the

16 relevant notification forms, Plaintiffs raise two arguments. First, Plaintiffs

17 contend that the burden of notification is substantial because the penalties for

18 non-compliance with the notification requirement are significant. Second,

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1 Plaintiffs argue that the consequences of notification – the downstream actions of

2 the government and third parties – transform completion of the relevant forms

3 into a substantial burden. For the reasons discussed below, we do not find either

4 argument persuasive.

5

1. Penalties for Non-Compliance

6

Plaintiffs first argue that the government imposes a substantial burden

7 whenever it puts a RFRA plaintiff to a choice between (a) taking action she finds

8 religiously objectionable, or (b) suffering substantial penalties. See Jolly, 76 F.3d at

9 477 (“[A] substantial burden exists where the state ‘put[s] substantial pressure on

10 an adherent to modify his behavior and to violate his beliefs.’” (quoting Thomas,

11 450 U.S. at 718) (second alteration in original)). Thus, because Plaintiffs would

12 pay serious fines or be forced to provide their employees contraceptive coverage

13 if they failed to utilize the opt-out mechanism, they claim a substantial burden

14 exists here.

15

Viewed in the context of our previous discussion, this argument is a non

16 sequitur. An objectively insubstantial burden does not become substantial simply

17 because a RFRA plaintiff faces substantial burdens in the alternative. Because

18 Plaintiffs can comply with the notification requirement without suffering a

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1 substantial burden, it makes no difference that they would incur significant

2 penalties for non-compliance.

3

For this reason, the cases cited by Plaintiffs are not applicable. As noted

4 previously, in Jolly the challenged regulations required a prisoner to suffer a

5 physical invasion of his bodily integrity. Id. at 476–77. In finding this invasion a

6 substantial burden, we further observed that the penalty for non-compliance

7 with this procedure was severe – “confinement to medical keeplock.” Id. at 477.

8 As we recognized, when the challenged action imposes a substantial burden, it is

9 obviously pertinent whether available alternatives also impose a substantial

10 burden. However, this secondary analysis matters only if the challenged conduct

11 is itself a substantial burden. Indeed, we emphasized that the severity of the

12 sanction for non-compliance was not the gravamen of the substantial burden

13 analysis. Id. (“[T]he district court need not have emphasized the extraordinary

14 length of the plaintiff’s confinement to medical keeplock as an indicator of a

15 substantial burden.”).

16

The same logic explains the Supreme Court’s statement in Hobby Lobby that

17 “[b]ecause the contraceptive mandate forces [plaintiffs] to pay an enormous sum

18 of money – as much as $475 million per year in the case of Hobby Lobby – if they

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1 insist on providing insurance coverage in accordance with their religious beliefs,

2 the mandate clearly imposes a substantial burden on those beliefs.” 134 S. Ct. at

3 2779. Unlike the regulatory scheme at issue here, the regulations challenged in

4 Hobby Lobby imposed a substantial burden, requiring the for-profit corporation

5 plaintiffs to pay out of pocket to insure thousands of individuals. Id. at 2775–78.

6 Given that the burden of compliance was objectively substantial, the Hobby Lobby

7 Court naturally also had to consider whether non-compliance with the

8 challenged regulations might result in only an insubstantial penalty. Because

9 these alternative penalties were also significant, the Hobby Lobby plaintiffs had no

10 means of avoiding a substantial burden. By contrast, because completing the opt-

11 out forms here imposes no substantial burden on Plaintiffs, the fact that they may

12 arguably incur substantial burdens in the alternative is irrelevant.

13

Similar issues undermine Plaintiffs’ citation to Thomas, 450 U.S. at 718.

14 There, as noted, the government denied a religious pacifist unemployment

15 benefits after he quit his job producing armaments. Id. at 709. Denial of these

16 potentially life-saving unemployment benefits imposed an objectively substantial

17 burden on the plaintiff’s religious exercise. Furthermore, Thomas lacked an

18 alternative option for “not complying” with this loss of benefits. Although he

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1 could have continued to work in violation of his religious beliefs, this would not

2 have avoided the loss of benefits, and, indeed, would have itself imposed a

3 substantial burden. Crucially, the regulatory scheme at issue did not offer the

4 objector an option that was free of a substantial burden.

5

In the context of the cases cited by Plaintiffs, it was thus pertinent that the

6 cost of non-compliance with the challenged regulation was also significant. When

7 doing what the governmental scheme requires is a substantial burden, then a

8 court must also consider whether any alternatives available to the plaintiff also

9 impose a substantial burden. Here, by contrast, what the governmental scheme

10 actually requires of Plaintiffs – the filing of a form or letter of notification – is not

11 a substantial burden. The fact that they may arguably incur substantial burdens if

12 instead they unlawfully refuse to comply is therefore irrelevant.

13

2. Effects of Compliance

14

Plaintiffs further argue that the objectively insubstantial burden of filing

15 either the opt-out form or the letter to HHS is substantial because it renders them

16 complicit in bringing about consequences forbidden by their religion, namely the

17 provision of contraceptive coverage by the government and third parties.

18 Although third parties ultimately bear the burden of providing contraceptive

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1 coverage, Plaintiffs contend that their participation is essential to this coverage.

2 Plaintiffs argue that a substantial burden exists because the submission of the

3 self-certification form or letter “triggers” or “facilitates” the provision of

4 objectionable contraceptive services. Under this view, Plaintiffs’ acts of self-

5 certification as religious objectors ultimately result in their third-party

6 administrators providing contraceptive coverage to their employees.

7

Like the other circuits to have addressed similar RFRA claims, we are not

8 persuaded regarding the mechanics of Plaintiffs’ “trigger” argument. As other

9 courts have concluded, a religious objector’s submission of the form or letter does

10 not, as a legal matter, trigger or facilitate the provision of contraceptive coverage.

11 See, e.g., Geneva Coll., 778 F.3d at 437; Priests for Life, 772 F.3d at 252–53. Rather,

12 contraceptive coverage occurs through operation of federal law. When third

13 parties step in and provide contraceptive coverage after Plaintiffs opt out, they

14 do so not because Plaintiffs have opted out, but rather because federal law

15 requires or incentivizes them to provide such coverage. The accommodation

16 functions not as a “trigger,” but rather as a means of identifying and exempting

17 those employers with religious objections. Once Plaintiffs indicate their desire to

18 have no involvement in the provision of contraceptive coverage, the government

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1 steps in and acts to ensure contraceptive coverage without any participation by

2 Plaintiffs. Thus, Plaintiffs’ decision to opt out is not the cause of the ultimate

3 contraceptive coverage; rather this coverage happens in spite of them.

4

Yet even accepting Plaintiffs’ argument that their submission of the

5 notification form or letter indirectly results in the provision of contraceptive

6 coverage to their employees, there is still no substantial burden here. The

7 regulatory obligations imposed on third parties after Plaintiffs opt out do not

8 transform the de minimis act of notification into a substantial burden. Courts

9 have not found a substantial burden where a plaintiff argues that her religious

10 exercise is violated by the government’s internal operations or, by extension, its

11 decision to burden third parties, even where the plaintiff plays a precipitating

12 role. “An asserted burden is . . . not an actionable substantial burden when it falls

13 on a third party, not the religious adherent.” Priests for Life, 772 F.3d at 246.

14

Most prominently, in Bowen v. Roy, 476 U.S. 693, 695–96 (1986), a Native

15 American plaintiff argued that a statute requiring the government to use his

16 daughter’s social security number to process his welfare benefit application

17 violated the Free Exercise Clause. Plaintiff Roy believed that the government’s

18 assignment of a social security number to his daughter would “‘rob the spirit’ of

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1 his daughter and prevent her from attaining greater spiritual power.” Id. at 696. 2 The Supreme Court rejected Roy’s challenge to the government’s internal use of 3 his daughter’s social security number, concluding that, rather than complaining 4 about a government restriction on his own conduct, Roy sought to “dictate the 5 conduct of the Government’s internal procedures.” Id. at 700. Roy’s claim failed 6 in this respect because, even though assigning his daughter a social security 7 number in processing the benefit application offended his religious sensibilities, 8 it did not “itself in any degree impair Roy’s freedom to believe, express, and 9 exercise his religion.” Id. (internal quotation marks omitted). The Court 10 concluded that although “[t]he Free Exercise Clause affords an individual 11 protection from certain forms of governmental compulsion[,] it does not afford 12 an individual a right to dictate the conduct of the Government’s internal 13 procedures.” Id. The Court declined to “interpret[] the First Amendment to 14 require the Government itself to behave in ways that the individual believes will 15 further his or her spiritual development.” Id. at 699 (emphasis in original). 16 Rather, it concluded that the “[t]he Free Exercise Clause simply cannot be 17 understood to require the Government to conduct its own internal affairs in ways 18 that comport with the religious beliefs of particular citizens.” Id.; see also Lyng v.
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1 Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450–51, 452 (1988)

2 (“[G]overnment simply could not operate if it were required to satisfy every

3 citizen’s religious needs and desires.”).

4

Similarly, in Kaemmerling, the D.C. Circuit concluded that a federal

5 prisoner could not establish a substantial burden under RFRA when he sought to

6 enjoin application of the DNA Analysis Backlog Elimination Act on the basis that

7 DNA sampling, storage, and collection without limitations violated his religious

8 beliefs about the proper use of the “building blocks of life.” 553 F.3d at 673–74,

9 680. The court found that the plaintiff’s religious exercise was not substantially

10 burdened, because “[t]he extraction and storage of DNA information are entirely

11 activities of the FBI, in which Kaemmerling plays no role and which occur after

12 the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at

13 679. The D.C. Circuit thus concluded that “[l]ike the parents in Bowen,”

14 Kaemmerling was attempting “to require the government itself to conduct its

15 affairs in conformance with his religion.” Id. at 680.

16

The same principles govern here. As with Roy’s completion of the welfare

17 application or Kaemmerling’s provision of a tissue sample (to which he did not

18 object), Plaintiffs’ act of notification results in downstream conduct they find

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1 religiously objectionable. But like Roy and Kaemmerling, whose conduct also

2 indirectly “triggered” government action they found religiously objectionable,

3 Plaintiffs cannot claim a substantial burden on the basis of this subsequent

4 conduct. “Religious objectors do not suffer substantial burdens under RFRA

5 where the only harm to them is that they sincerely feel aggrieved by their

6 inability to prevent what other people would do to fulfill regulatory objectives

7 after they opt out. They have no RFRA right to be free from the unease, or even

8 anguish, of knowing that third parties are legally privileged or obligated to act in

9 ways their religion abhors.” Priests for Life, 772 F.3d at 246 (citation omitted). The

10 objectively insubstantial burden of filing the notification form or letter does not

11 become a substantial burden because of the subsequent burdens imposed on

12 third parties by the government.

13

“Just as the Government may not insist that [Plaintiffs] engage in any set

14 form of religious observance, so [Plaintiffs] may not demand that the

15 Government join in their chosen religious practices by refraining from” working

16 with third parties to provide their employees contraceptive coverage. Bowen, 476

17 U.S. at 699–700. While we do not doubt the sincerity or rationality of Plaintiffs’

18 beliefs, their legal argument would have the effect, if accepted, of enabling

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1 religious objectors to impose the constraints of their beliefs on the rest of the

2 Nation. The Supreme Court made clear in Bowen that religious objectors do not

3 have this right, because burdens falling on third parties, and not the religious

4 objector, are not actionable.

5

Furthermore, the fact that the government imposes these separate legal

6 responsibilities on contractual counter-parties of eligible organizations does not

7 create a substantial burden on Plaintiffs’ religious exercise. Cf. United States v. Lee,

8 455 U.S. 252, 261 (1982) (“When followers of a particular sect enter into

9 commercial activity as a matter of choice, the limits they accept on their own

10 conduct as a matter of conscience and faith are not to be superimposed on the

11 statutory schemes which are binding on others in that activity.”). Plaintiffs’

12 relationships with their employees and third-party administrators do not provide

13 them an avenue to dictate these entities’ independent interactions with the

14 government, even if Plaintiffs find these actions objectionable. See Priests for Life,

15 772 F.3d at 256 (“RFRA does not entitle Plaintiffs to control their employees’

16 relationships with other entities willing to provide health insurance coverage to 17 which the employees are legally entitled.”).9

9 In a related vein, Plaintiffs contended at oral argument that the 41

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1

As other circuits have recognized, Plaintiffs’ argument “is analogous to a

2 religious conscientious objector to a military draft claiming that the act of

3 identifying himself as such on his Selective Service card constitutes a substantial

4 burden because that identification would then ‘trigger’ the draft of a fellow

5 selective service registrant in his place and thereby implicate the objector in

6 facilitating war.” Id. at 246; see also Little Sisters of the Poor, 2015 WL 4232096, at

7 *24 n.33; Univ. of Notre Dame, 786 F.3d at 623 (Hamilton, J., concurring). The

8 government’s subsequent actions in drafting a replacement soldier surely do not

9 transform the conscientious objector’s completion of the opt-out form into a

10 substantial burden, even if the conscientious objector finds these acts deplorable

11 as a matter of faith. So too here, no substantial burden exists simply because the

12 government ultimately works with third-party administrators to ensure the

13 provision of contraceptive coverage once Plaintiffs opt out. Were it otherwise,

14 Plaintiffs and the conscientious objector would enjoy a blanket religious veto

government’s offer of reimbursement in excess of costs to church plan third-party administrators could eventually result in the disappearance of third-party administrators who might refuse, at the request of eligible organizations, to provide contraceptive coverage. Yet, the fact that a federal policy incentivizes third parties to operate in a manner Plaintiffs find religiously objectionable is not a cognizable burden under RFRA. Plaintiffs do not enjoy a religious objector veto over the government’s interactions with their third-party administrators.
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1 over the government’s interactions with others. “Although [a] person may have a

2 religious objection to what the government, or another third party, does with

3 something that the law requires to be provided (whether it be a Social Security

4 number, DNA, or a form that states that the person religiously objects to

5 providing contraceptive coverage), RFRA does not necessarily permit that person

6 to impose a restraint on another’s action based on the claim that the action is

7 religiously abhorrent.” Geneva Coll., 778 F.3d at 441.

8

Indeed, accepting Plaintiffs’ argument would cast doubt on the

9 government’s ability to accommodate religious objectors in other spheres. The

10 simple, non-burdensome act of requesting a religious exemption from a

11 regulatory burden would nevertheless create a substantial burden on a religious

12 objector so long as any resulting independent action by the government is also

13 religiously objectionable. See Univ. of Notre Dame, 786 F.3d at 621 (Hamilton, J.,

14 concurring) (“From conscientious objector status in the military draft to federal

15 and state tax codes, from compulsory school attendance laws to school lunch

16 menus, from zoning law to employment law and even fish and wildlife rules, our

17 governments at every level have long made room for religious faith by allowing

18 exceptions from generally applicable laws.”); see also Geneva Coll., 778 F.3d at 439

43

Case 14-427, Document 213-1, 08/07/2015, 1571124, Page44 of 47

1 n.14 (analogizing to exemptions for religious objector employees). “The

2 possibilities are endless, but we doubt Congress, in enacting RFRA, intended for

3 them to be.” E. Tex. Baptist Univ., 2015 WL 3852811, at *7.

4

Plaintiffs may certainly object to this subsequent action by the government

5 and third parties based on their sincere religious beliefs, and we reiterate that we

6 do not doubt the sincerity or rationality of Plaintiffs’ beliefs. But just because

7 Plaintiffs feel complicit in these third party actions does not mean that the

8 regulations impose a “burden” on their religious practice, much less a burden

9 that is “substantial” under RFRA. While a plaintiff’s “religious views may not

10 accept [the] distinction between individual and governmental conduct,” the law

11 does. Bowen, 476 U.S. at 701 n.6; see also Lyng, 485 U.S. at 451 (“Whatever may be

12 the exact line between unconstitutional prohibitions on the free exercise of

13 religion and the legitimate conduct by government of its own affairs, the location

14 of the line cannot depend on measuring the effects of a governmental action on a

15 religious objector’s spiritual development.”). “Accepting the sincerity of

16 Plaintiffs’ beliefs . . . does not relieve this Court of its responsibility to evaluate

17 the substantiality of any burden on Plaintiffs’ religious exercise, and to

44

Case 14-427, Document 213-1, 08/07/2015, 1571124, Page45 of 47

1 distinguish Plaintiffs’ duties from obligations imposed, not on them, but on

2 insurers and TPAs.” Priests for Life, 772 F.3d at 247.

3

Thus, consistent with Bowen and related cases, we must assess whether the

4 claimed burden falls on a plaintiff or a third party with no religious objection.

5 Here, the only burden that actually falls on Plaintiffs is the objectively

6 insubstantial requirement of completing the opt-out form or letter. When all the

7 government requires of a religious objector is the de minimis requirement of

8 notification for an exemption such that the burden may be shifted to another,

9 there is no substantial burden, even if the religious objector sincerely finds the

10 ultimate actions taken by the government and third parties offensive. Even

11 though Plaintiffs believe their role in the causal chain makes them complicit in

12 the provision of contraceptives, this belief does not control the substantial burden

13 inquiry. Just like the conscientious objector, whose decision to opt out indirectly

14 facilitates the drafting of another, Plaintiffs are not substantially burdened by the

15 ultimate actions of the government and third parties. If what Plaintiffs must do to

16 exempt themselves from the contraceptive coverage mandate is not substantially

17 burdensome, it makes no difference that Plaintiffs’ act of claiming exemption

18 plays a functional role in the government’s achievement of the purposes to which

45

Case 14-427, Document 213-1, 08/07/2015, 1571124, Page46 of 47

1 Plaintiffs object, or that they believe themselves to be substantially burdened for

2 that reason.

3

* **

4

The burden that the accommodation places on Plaintiffs is merely one of

5 notification, equivalent to the burden historically placed on draft registrants to

6 indicate their conscientious objections to military service. Once Plaintiffs avail

7 themselves of the simple, non-burdensome means of opting out, the regulations

8 do not require them to play any role in the provision of contraceptive coverage or

9 to suffer punishments for not doing so. To the contrary, the accommodation

10 relieves them of providing contraceptive coverage, and instead enlists third-party

11 administrators to provide such coverage. If a regulatory scheme that might

12 otherwise violate an objecting individual’s rights under RFRA allows the objector

13 to exempt himself from compliance via a simple, non-burdensome act of

14 notification, there is no substantial burden. Furthermore, subsequent regulation

15 of non-objecting parties in a manner that an objecting party finds offensive does

16 not transform the act of opting out into a cognizable substantial burden. The

17 rights conferred by the First Amendment and RFRA do not include a right to

46

Case 14-427, Document 213-1, 08/07/2015, 1571124, Page47 of 47

1 have the government or third parties behave in a manner that comports with an

2 individual’s religious beliefs.

3

4

CONCLUSION

5

For the foregoing reasons, we reject Plaintiffs’ RFRA challenge to the

6 contraceptive coverage mandate. The regulations at issue do not substantially

7 burden Plaintiffs’ religious exercise in violation of RFRA. Accordingly, the

8 judgment of the district court is reversed in relevant part.

47

Case 14-427, Document 213-2, 08/07/2015, 1571124, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: August 07, 2015 Docket #: 14-427cv Short Title: Roman Catholic Diocese of New v. Sebelius

DC Docket #: 12-cv-2542 DC Court: EDNY (BROOKLYN) DC Judge: Cogan

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 14-427, Document 213-3, 08/07/2015, 1571124, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: August 07, 2015 Docket #: 14-427cv Short Title: Roman Catholic Diocese of New v. Sebelius

DC Docket #: 12-cv-2542 DC Court: EDNY (BROOKLYN) DC Judge: Cogan

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

Case 14-427, Document 213-4, 08/07/2015, 1571124, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: August 07, 2015 Docket #: 14-427cv Short Title: Roman Catholic Diocese of New v. Sebelius

DC Docket #: 12-cv-2542 DC Court: EDNY (BROOKLYN) DC Judge: Cogan

NOTICE OF DECISION
The court has issued a decision in the above-entitled case. It is available on the Court's website http://www.ca2.uscourts.gov. Judgment was entered on August 7, 2015; and a mandate will later issue in accordance with FRAP 41. If pursuant to FRAP Rule 39 (c) you are required to file an itemized and verified bill of costs you must do so, with proof of service, within 14 days after entry of judgment. The form, with instructions, is also available on Court's website.
Inquiries regarding this case may be directed to 212-857-8523.

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
2of 10

Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
3of10

19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
4of10

c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
6of 10

42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
7of 10

11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
8 of10

of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
10 of10

EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend 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 Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 1 of 17
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:12−cv−02542−BMC

CLOSED

Roman Catholic Archdiocese of New York et al v. Sebelius et al Date Filed: 05/21/2012

Assigned to: Judge Brian M. Cogan

Date Terminated: 10/19/2017

Cause: 05:702 Administrative Procedure Act

Jury Demand: Plaintiff

Nature of Suit: 440 Civil Rights: Other

Jurisdiction: U.S. Government Defendant

Plaintiff

Roman Catholic Archdiocese of New York

represented by Charles Michael Carberry Jones & Day 222 East 41st Street New York, NY 10017 (212) 326−3939 Fax: (212) 755−7306 Email: carberry@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Smith Smith Villazor LLP 1700 Broadway New York, NY 10019 212−706−1873 Email: patrick.smith@smithvillazor.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd R. Geremia Jones Day 222 East 41st Street New York, NY 10017 212−326−3429 Fax: 212−755−7306 Email: trgeremia@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Rosselot Gorla Jones Day 222 East 41st Street New York, NY 10017 (212)326−3939 Fax: (212)755−7306 Email: jarosselot@jonesday.com ATTORNEY TO BE NOTICED

Toni−Ann Citera Jones Day 222 East 41st Street New York, NY 10017 212−326−3939 Fax: 212−755−7306 Email: tcitera@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff Catholic Health Care System

represented by Charles Michael Carberry (See above for address) LEAD ATTORNEY

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 2 of 17

ATTORNEY TO BE NOTICED

Patrick J. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd R. Geremia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Rosselot Gorla (See above for address) ATTORNEY TO BE NOTICED

Toni−Ann Citera (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Roman Catholic Diocese of Rockville Centre, New York

represented by Charles Michael Carberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd R. Geremia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Rosselot Gorla (See above for address) ATTORNEY TO BE NOTICED

Toni−Ann Citera (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities of the Diocese of Rockville Centre TERMINATED: 12/05/2012

represented by Charles Michael Carberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd R. Geremia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Rosselot Gorla (See above for address) ATTORNEY TO BE NOTICED

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 3 of 17

Toni−Ann Citera (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Catholic Health Services of Long Island

represented by Charles Michael Carberry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick J. Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Todd R. Geremia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Rosselot Gorla (See above for address) ATTORNEY TO BE NOTICED

Toni−Ann Citera (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Cardinal Spellman High School

represented by Todd R. Geremia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Monsignor Farrell High School

represented by Todd R. Geremia (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services

represented by Benjamin Berwick U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave Nw Room 7306 Washington, DC 20530 202−305−8573 Fax: 202−616−8470 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton U.S. Department of Justice 20 Massachusetts Avenue Nw Washington, DC 20530 (202)305−8356 Fax: (202)616−8470 Email: emily.s.newton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 4 of 17

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
Defendant U.S. Department of Treasury
Amicus American Center for Law & Justice

represented by Benjamin Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily S. Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Neil Matthew Merkl Kelley, Drye & Warren, LLP 101 Park Avenue New York, NY 10178 212−808−7811

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 5 of 17

Fax: 212−808−7897 Email: Nmerkl@kelleydrye.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cecilia D. Noland−Heil American Center for Law and Justice Po Box 90555 Washington, DC 20090 757−226−2489 Fax: 757−226−2836 Email: cheil@aclj.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Foundation

represented by Jennifer Kim Lee American Civil Liberties Union Foundation 125 Broad Street 18th Fl New York, NY 10004 212−549−2633 Fax: 212−549−2651 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

# Docket Text
1 COMPLAINT against All Defendants Disclosure Statement on Civil Cover Sheet completed −yes,, filed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. (Attachments: # 1 Civil Cover Sheet) (Bowens, Priscilla) (Entered: 05/21/2012)
2 DISCLOSURE of Interested Parties by Catholic Health Services of Long Island. (Bowens, Priscilla) (Entered: 05/21/2012)
3 DISCLOSURE of Interested Parties by Roman Catholic Diocese of Rockville Centre, New York. (Bowens, Priscilla) (Entered: 05/21/2012)
4 DISCLOSURE of Interested Parties by Catholic Health Care System. (Bowens, Priscilla) (Entered: 05/21/2012)
5 DISCLOSURE of Interested Parties by Roman Catholic Archdiocese of New York. (Bowens, Priscilla) (Entered: 05/21/2012)
6 DISCLOSURE of Interested Parties by Catholic Charities of the Diocese of Rockville Centre. (Bowens, Priscilla) (Entered: 05/21/2012)
Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (Bowens, Priscilla) (Entered: 05/21/2012)
FILING FEE: $ 350, receipt number 4653044123 (Bowens, Priscilla) (Entered: 05/21/2012)
7 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences.Do NOT return

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 6 of 17

05/21/2012 05/21/2012 05/21/2012 05/22/2012
05/31/2012 05/31/2012 05/31/2012 05/31/2012 06/12/2012 06/12/2012

or file the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 05/21/2012)
8 Notice of MOTION for Leave to Appear Pro Hac Vice for Jennifer M. Bradley Filing fee $ 25, receipt number 0207−5496012. by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Attachments: # 1 Declaration in Support, # 2 Proposed Order) (Geremia, Todd) (Entered: 05/21/2012)
Email Notification Test − DO NOT REPLY. (Lee, Tiffeny) (Entered: 05/21/2012)
ORDER granting 8 Motion for Jennifer M. Bradley to appear pro hac vice as counsel for plaintiffs. Ordered by Judge Brian M. Cogan on 5/21/2012. (Weisberg, Peggy) (Entered: 05/21/2012)
SCHEDULING ORDER: Counsel for all parties are directed to appear before the Honorable Brian M. Cogan for an Initial Status Conference on 6/28/2012 at 10:00 am in Chambers 704S. Principal trial counsel must appear at this and all subsequent conferences. Plaintiffs' counsel is directed to notify all attorneys in this action of the conference schedule in writing. Counsel is directed to review Judge Cogan's Individual Practices, which may be obtained on the Court's website at http://www.nyed.uscourts.gov/pub/rules/BMC−MLR.pdf. Requests for adjournment of the conference will be considered only if made in writing and otherwise in accordance with Judge Cogan's rules. Ordered by Judge Brian M. Cogan on 5/22/2012. (Weisberg, Peggy) (Entered: 05/22/2012)
9 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. Hilda Solis served on 5/25/2012, answer due 7/24/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 05/31/2012)
10 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. Kathleen Sebelius served on 5/25/2012, answer due 7/24/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 05/31/2012)
11 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. U.S. Department of Health and Human Services served on 5/25/2012, answer due 7/24/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 05/31/2012)
12 AFFIDAVIT of Service for Summons and Complaint served on Civil Process Clerk, U.S. Attorney's Office on 5/24/2012, filed by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 05/31/2012)
13 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. U.S. Department of Labor served on 6/1/2012, answer due 7/31/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 06/12/2012)
14 AFFIDAVIT of Service for Summons and Complaint served on Eric H. Holder, Jr., Attorney General of the United States on 5/29/2012, filed by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 06/12/2012)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 7 of 17

06/26/2012 06/28/2012
08/06/2012 08/10/2012
08/12/2012
08/20/2012 08/20/2012 08/20/2012 08/21/2012 08/21/2012
08/21/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012

15 NOTICE of Appearance by Benjamin Berwick on behalf of All Defendants (aty to be noticed) (Berwick, Benjamin) (Entered: 06/26/2012)
Minute Entry for Initial Status Conference held before Judge Brian M. Cogan on June 28, 2012. Defendants' proposed motion to dismiss the complaint is due by August 6, 2012. If plaintiffs wish to file opposition papers addressing defendants' motion to stay discovery pending this Court's adjudication of defendants' motion to dismiss, plaintiffs' opposition papers regarding the stay are due by August 10, 2012. Opposition to defendants' motion to dismiss is due by August 27, 2012; defendants' reply is due within 28 days of plaintiffs' opposition. (Viglietta, Emily) (Entered: 06/28/2012)
16 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. Responses due by 8/27/2012 (Attachments: # 1 Memorandum in Support) (Berwick, Benjamin) (Entered: 08/06/2012)
17 Letter Brief in Opposition to Defendants' Request for a Stay of Discovery by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York (Smith, Patrick) (Entered: 08/10/2012)
ORDER regarding 16 Motion to Dismiss for Lack of Jurisdiction. Defendants' request to stay discovery pending determination of their motion is denied. At this stage, the Court cannot conclude that defendants have made the required showing for such relief. Ordered by Judge Brian M. Cogan on 8/12/2012. (Cogan, Brian) (Entered: 08/12/2012)
18 Corporate Disclosure Statement by American Center for Law & Justice (Merkl, Neil) (Entered: 08/20/2012)
19 MOTION for Leave to File Amici Curiae Brief by American Center for Law & Justice. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Cecilia D. Noland−Heil, # 3 Proposed Amici Curiae Brief, # 4 Proposed Order) (Merkl, Neil) (Entered: 08/20/2012)
ORDER granting 19 Motion for Leave to File Amicus Brief. Ordered by Judge Brian M. Cogan on 8/20/2012. (Cogan, Brian) (Entered: 08/20/2012)
20 NOTICE by American Center for Law & Justice Amici Curiae Brief in Support of Plaintiffs Filed by the American Center for Law & Justice and Seventy−Nine (79) Members of the United States Congress (Merkl, Neil) (Entered: 08/21/2012)
21 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 25, receipt number 0207−5679435. by American Center for Law & Justice. (Attachments: # 1 Affidavit in Support, # 2 Exhibit Certificate of Good Standing CA, # 3 Exhibit Certificate of Good Standing TN, # 4 Exhibit Certificate of Good Standing MO, # 5 Proposed Order) (Noland−Heil, Cecilia) (Entered: 08/21/2012)
ORDER granting 21 Motion for Cecilia Noland−Heil to appear pro hac vice as counsel or advocate for amici curiae, The American Center for Law & Justice. Ordered by Judge Brian M. Cogan on 8/21/2012. (Weisberg, Peggy) (Entered: 08/21/2012)
22 MEMORANDUM in Opposition re 16 MOTION to Dismiss for Lack of Jurisdiction filed by All Plaintiffs. (Rosselot, Julie) (Entered: 08/27/2012)
23 AFFIDAVIT/DECLARATION in Opposition re 16 MOTION to Dismiss for Lack of Jurisdiction filed by Roman Catholic Archdiocese of New York. (Rosselot, Julie) (Entered: 08/27/2012)
24 AFFIDAVIT/DECLARATION in Opposition re 16 MOTION to Dismiss for Lack of Jurisdiction filed by Catholic Health Care System. (Attachments: # 1 Exhibit A) (Rosselot, Julie) (Entered: 08/27/2012)
25 AFFIDAVIT/DECLARATION in Opposition re 16 MOTION to Dismiss for Lack of Jurisdiction filed by Catholic Health Services of Long Island. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rosselot, Julie) (Entered: 08/27/2012)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 8 of 17

08/27/2012 09/11/2012
09/11/2012
09/18/2012 09/19/2012 09/24/2012 10/08/2012 10/16/2012 11/13/2012 11/19/2012
11/27/2012
11/29/2012
12/05/2012
12/06/2012

26 AFFIDAVIT/DECLARATION in Opposition re 16 MOTION to Dismiss for Lack of Jurisdiction filed by Catholic Charities of the Diocese of Rockville Centre, Roman Catholic Diocese of Rockville Centre, New York. (Rosselot, Julie) (Entered: 08/27/2012)
27 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. U.S. Department of Treasury served on 5/25/2012, answer due 7/24/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 09/11/2012)
28 SUMMONS Returned Executed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System. Timothy Geithner served on 5/25/2012, answer due 7/24/2012. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rosselot, Julie) (Entered: 09/11/2012)
29 Letter 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. (Berwick, Benjamin) (Entered: 09/18/2012)
ORDER granting 29 Motion to file a reply brief in excess of 10 page limit, not to exceed 15 pages. Ordered by Judge Brian M. Cogan on 9/19/2012. (Weisberg, Peggy) (Entered: 09/19/2012)
30 REPLY in Support re 16 MOTION to Dismiss for Lack of Jurisdiction filed by All Defendants. (Berwick, Benjamin) (Entered: 09/24/2012)
31 NOTICE of Appearance by Toni−Ann Citera on behalf of All Plaintiffs (aty to be noticed) (Citera, Toni−Ann) (Entered: 10/08/2012)
32 REPORT of Rule 26(f) Planning Meeting (Geremia, Todd) (Entered: 10/16/2012)
33 NOTICE 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 16 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Berwick, Benjamin) (Entered: 11/13/2012)
34 NOTICE by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York re 33 Notice(Other), Response to Defendants Notice of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Geremia, Todd) (Entered: 11/19/2012)
35 NOTICE 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 16 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius) (Berwick, Benjamin) (Entered: 11/27/2012)
36 NOTICE 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 16 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Zubik v. Sebelius) (Berwick, Benjamin) (Entered: 11/29/2012)
37 MEMORANDUM DECISION AND ORDER: Defendants' motion to dismiss for lack of jurisdiction 16 is granted in part and denied in part. The claims of the Diocese and Catholic Charities are dismissed for lack of standing. Defendants' motion is otherwise denied. So Ordered by Judge Brian M. Cogan on 12/4/2012. (Lee, Tiffeny) (Entered: 12/05/2012)
38 Letter MOTION for Extension of Time to File Motion to Reconsider 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. (Berwick, Benjamin) (Entered: 12/06/2012)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 9 of 17

12/06/2012 12/26/2012 12/26/2012 12/27/2012 12/27/2012 01/08/2013
01/11/2013
01/23/2013 01/23/2013 02/01/2013 02/04/2013

ORDER as to 38 defendants' motion for an extension of time to file their motion for reconsideration. The Court grants the motion and waives the pre−motion letter and conference requirement. Defendants shall submit their motion for reconsideration by January 11, 2013. Ordered by Judge Brian M. Cogan on 12/6/2012. (Weisberg, Peggy) (Entered: 12/06/2012)
39 Letter Requesting Conference Pursuant to Fed. R. Civ. P. 26(f) by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York (Geremia, Todd) (Entered: 12/26/2012)
SCHEDULING ORDER: re 39 Letter filed by plaintiffs.Discovery conference set for 1/2/2013 11:30 AM in Chambers. Ordered by Judge Brian M. Cogan on 12/26/2012. (Cogan, Brian) (Entered: 12/26/2012)
40 Letter MOTION to Adjourn Conference until the week of January 7, 2013 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. (Berwick, Benjamin) (Entered: 12/27/2012)
ORDER granting 40 Motion to Adjourn Conference to 1/7/13 at 4:30 pm. Ordered by Judge Brian M. Cogan on 12/27/2012. (Cogan, Brian) (Entered: 12/27/2012)
MINUTE ENTRY for Status Conference held before Judge Brian M. Cogan on January 7, 2013. Both sides present. Plaintiffs may take the the deposition of the designated deponent of the U.S. Department of Health and Human Services ("HHS") on or after March 25, 2013. Defendants shall produce the non−privileged documents used or referred to prepare that witness on the topics agreed to by the parties by March 15, 2013. Defendants shall produce documents on a rolling basis and shall complete document production by June 7, 2013. To the extent that defendants claim the deliberative process privilege over any requested documents, defendants shall produce a privilege log detailing at least some of their deliberative process claims no later than April 30, 2013. Depositions, other than the deposition of HHS's designated witness, may be taken at plaintiffs' request at any time between March 25, 2013 and August 9, 2013. The parties' motions for summary judgment, if they chose to file them, shall be submitted by August 16, 2013, with opposition briefs filed by September 16, 2013, and reply briefs filed by September 30, 2013. If the parties agree to a different discovery and/or briefing schedule, they may jointly submit any proposed schedule to the Court for approval. (Weisberg, Peggy) (Entered: 01/08/2013)
41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal 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. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Gary M. Cohen, # 3 Exhibit Wheaton College v. Sebelius, # 4 Exhibit Catholic Diocese of Biloxi v. Sebelius) (Berwick, Benjamin) (Entered: 01/11/2013)
42 Letter MOTION for Extension of Time to File Response/Reply to Defendants' Motion for Reconsideration by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York. (Geremia, Todd) (Entered: 01/23/2013)
ORDER granting 42 Motion. Plaintiffs' response to defendants' motion for reconsideration due by 2/1/13; defendants' reply due by 2/8/13. Ordered by Judge Brian M. Cogan on 1/23/2013. (Weisberg, Peggy) (Entered: 01/23/2013)
43 MEMORANDUM in Opposition re 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal filed by All Plaintiffs. (Geremia, Todd) (Entered: 02/01/2013)
44 EXHIBIT A by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York. Related document: 43 Memorandum in Opposition, filed by Catholic Health Services of Long Island, Roman Catholic Diocese of Rockville Centre, New York, Catholic Health Care System, Roman Catholic Archdiocese of New York, Catholic Charities of the Diocese of Rockville Centre. (Geremia, Todd) (Entered: 02/04/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 10 of 17

02/08/2013 02/26/2013
03/03/2013 03/04/2013 03/05/2013 03/05/2013 03/06/2013 03/07/2013 03/11/2013 03/15/2013 03/25/2013 03/25/2013

45 REPLY in Support re 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal filed by All Defendants. (Attachments: # 1 Exhibit Bishop Conlon v. Sebelius) (Berwick, Benjamin) (Entered: 02/08/2013)
46 NOTICE 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 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal Supplemental Authority (Berwick, Benjamin) (Entered: 02/26/2013)
47 Letter MOTION for Extension of Time to Complete Discovery Production of Documents Used To Prepare Deponent 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. (Berwick, Benjamin) (Entered: 03/03/2013)
48 NOTICE by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York re 46 Notice(Other), Response to Defendants' Notice of Supplemental Authority (Geremia, Todd) (Entered: 03/04/2013)
49 NOTICE 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 46 Notice(Other), 48 Notice(Other) Defendants' Reply to Plaintiffs' Response to Notice of Supplemental Authority (Berwick, Benjamin) (Entered: 03/05/2013)
50 Letter Requesting Expedited Consideration of Defendants' Motion for Reconsideration or, in the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal 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 (Berwick, Benjamin) (Entered: 03/05/2013)
51 RESPONSE in Opposition re 47 Letter MOTION for Extension of Time to Complete Discovery Production of Documents Used To Prepare Deponent filed by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York. (Geremia, Todd) (Entered: 03/06/2013)
52 Letter Regarding Parties' Resolution of Dispute Over Extension of Time to Produce Documents and Withdrawal of 47 Letter Motion 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 (Berwick, Benjamin) (Entered: 03/07/2013)
53 Letter re 50 Letter Requesting Expedited Consideration of Defendants' Motion for Reconsideration or, in the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York (Geremia, Todd) (Entered: 03/11/2013)
54 ANSWER to 1 Complaint, by All Defendants. (Berwick, Benjamin) (Entered: 03/15/2013)
55 Letter Regarding Discovery Dispute 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 (Berwick, Benjamin) (Entered: 03/25/2013)
ORDER as to 55 Letter. Plaintiffs' motion to compel is denied and defendants' motion for a protective order is granted. Plaintiffs' request for the Secretary's deposition is premature, if it is even appropriate at all. To the extent the Secretary's motivation may become significant, plaintiffs' discovery should initially focus on the facts of who said what to whom and when, including statements made to and by the Secretary, which are likely to elicit such motivational information. In addition to documentary evidence, other witnesses can testify about the Secretary's public and internal statements as well as her participation in the events at issue. After that discovery is exhausted, the Court may reconsider whether there remains any need for the Secretary's examination. But, at this stage, the Court is not prepared to find that the motivation of the Secretary justifies the deposition of the head of a cabinet−level department. Ordered by Judge Brian M. Cogan on 3/25/2013. (Weisberg, Peggy) (Entered: 03/25/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 11 of 17

03/25/2013 04/05/2013 04/05/2013 04/17/2013 04/24/2013
04/24/2013
04/25/2013 06/24/2013 07/01/2013 07/01/2013 07/12/2013

56 NOTICE 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 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal Supplemental Authority (Attachments: # 1 Exhibit Wenski v. Sebelius) (Berwick, Benjamin) (Entered: 03/25/2013)
57 NOTICE 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 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal Supplemental Authority (Berwick, Benjamin) (Entered: 04/05/2013)
58 NOTICE by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York re 57 Notice(Other), 56 Notice(Other), Response to Defendants' Notices of Supplemental Authority (Geremia, Todd) (Entered: 04/05/2013)
59 NOTICE 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 41 MOTION for Reconsideration re 37 Order on Motion to Dismiss/Lack of Jurisdiction, or, In the Alternative, for Certification Under 28 U.S.C. Section 1292(b) Permitting Immediate Appeal Supplemental Authority (Berwick, Benjamin) (Entered: 04/17/2013)
60 Letter EMERGENCY MOTION to Halt Proceedings and Dismiss Case 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 (Attachments: # 1 Exhibit 1 − Cohen Declaration, # 2 Exhibit 2 − Lyons Declaration, # 3 Exhibit 3 − Williams Declaration, # 4 Exhibit 4 − Cantwell Declaration, # 5 Exhibit 5 − Melcher Declaration, # 6 Exhibit 6 − Stein Declaration, # 7 Exhibit 7 − Craig Declaration, # 8 Exhibit 8 − Berwick Declaration, # 9 Exhibit 9 − Plaintiffs' RFPs, # 10 Exhibit 10 − Plaintiffs' Interrogatories, # 11 Exhibit 11 − Plaintiffs' RFAs) (Berwick, Benjamin) (Entered: 04/24/2013)
ORDER re 60 defendants' emergency motion to halt proceedings. The motion is granted in part. All proceedings and discovery are stayed pending the completion of the agency defendants' current rulemaking proceedings. Defendants shall provide the Court with a written update on the status of the rulemaking every 60 days. The Court will consider the representations made by defendants in this motion as to the non−enforceability of the current regulations against plaintiffs in the context of its consideration of defendants motion for reconsideration or certification of an interlocutory appeal. Ordered by Judge Brian M. Cogan on 4/24/2013. (Palmieri, Michael) (Entered: 04/24/2013)
61 Letter Response to Emergency Motion to Halt Proceedings and Dismiss Case by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York (Geremia, Todd) (Entered: 04/25/2013)
62 STATUS REPORT 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 (Berwick, Benjamin) (Entered: 06/24/2013)
63 Letter regarding promulgation of Final Rules by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Geremia, Todd) (Entered: 07/01/2013)
ORDER as to 63 plaintiffs' letter regarding the promulgation of Final Rules. Both sides are directed to file a letter of no more than 3 pages by 7/12/2013 advising the Court of how they intend to proceed in light of the newly−promulgated Final Rules. The stay in this matter will remain in place through 7/12/2013. Ordered by Judge Brian M. Cogan on 7/1/2013. (Weisberg, Peggy) (Entered: 07/01/2013)
64 Letter by Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York (Geremia, Todd) (Entered: 07/12/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 12 of 17

07/12/2013 07/12/2013
07/24/2013
07/25/2013
07/25/2013 07/25/2013 08/14/2013 08/14/2013 08/14/2013 08/14/2013 08/14/2013

65 Letter 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 (Berwick, Benjamin) (Entered: 07/12/2013)
ORDER as to 64 65 plaintiffs' and defendants' letter. Missing from plaintiffs' request is any indication as to whether defendants have been consulted and consent to the amendment and proposed schedule. The Court cannot rule on this without knowing defendants' position. It is the Court's preference to allow plaintiffs to file an amended complaint and have the briefing schedule that they have proposed, but if defendants would rather argue futility in the context of Rule 15 (which, despite plaintiffs assertion, the Court believes could be raised against a proposed amended complaint) rather than lack of plausibility or viability under Rule 12(b) (the former standard seems at least technically more difficult for defendants), then the Court is not going to allow the amendment ex parte without hearing from defendants. If defendants oppose the amendment, plaintiffs are granted leave to move to amend along they lines they suggest, anticipating, as does their letter, defendants' futility argument. Ordered by Judge Brian M. Cogan on 7/12/2013. (Weisberg, Peggy) (Entered: 07/12/2013)
66 Letter in Joint Submission Regarding Parties' Proposed Schedule by Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Timothy Geithner, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Smith, Patrick) (Entered: 07/24/2013)
67 ORDER: re 66 . The schedule is approved, with the understanding that the Court cannotcommit to meet the parties' preferred schedule for a decision, although it willattempt to. In addition,the Court assumes that neither party is requesting anevidentiary hearing or discovery on the preliminary injunction motion and bothparties consent to the determination of that motion on the papers that will besubmitted. Finally, it seems that defendants' pending motion for reconsiderationshould be denied as moot, without prejudice to challenging standing (or raisingany other available defenses) under the amended complaint in their motion todismiss or for summary judgment. If that is not the case, defendants shouldadvise the Court now. Ordered by Judge Brian M. Cogan on 7/25/2013. (Siegfried, Evan) (Entered: 07/25/2013)
68 Letter 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 (Berwick, Benjamin) (Entered: 07/25/2013)
ORDER denying 41 Motion for Reconsideration as moot without prejudice. Ordered by Judge Brian M. Cogan on 7/25/2013. (Weisberg, Peggy) (Entered: 07/25/2013)
69 AMENDED COMPLAINT against All Defendants, filed by Roman Catholic Diocese of Rockville Centre, New York, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Catholic Health Care System, Cardinal Spellman High School, Monsignor Farrell High School. (Geremia, Todd) (Entered: 08/14/2013)
70 Corporate Disclosure Statement by Cardinal Spellman High School (Geremia, Todd) (Entered: 08/14/2013)
71 Corporate Disclosure Statement by Monsignor Farrell High School (Geremia, Todd) (Entered: 08/14/2013)
72 Notice of MOTION for Preliminary Injunction by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Geremia, Todd) (Entered: 08/14/2013)
73 MEMORANDUM in Support re 72 Notice of MOTION for Preliminary Injunction filed by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Geremia, Todd) (Entered: 08/14/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 13 of 17

08/14/2013 08/28/2013 08/28/2013
08/28/2013
08/30/2013 08/30/2013 09/11/2013
09/11/2013 09/11/2013 09/11/2013 09/11/2013

74 AFFIDAVIT/DECLARATION in Support re 72 Notice of MOTION for Preliminary Injunction filed by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Attachments: # 1 Exhibit 1) (Geremia, Todd) (Entered: 08/14/2013)
75 Letter 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 (Berwick, Benjamin) (Entered: 08/28/2013)
76 Joint MOTION for Leave to File Excess Pages by Cardinal Spellman High School, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Timothy Geithner, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Berwick, Benjamin) (Entered: 08/28/2013)
ORDER re 75 Letter filed by defendants. The request not to file the entire administrative record on line is granted in part. Defendants shall file a CD Rom containing the record with the Clerk and courtesy copy of the CD−Rom shall be delivered to Chambers. In addition, defendants shall confer with plaintiffs and file on ECF an Appendix containing all materials cited by either party in their briefs. If the timing of filing the briefs requires it, a supplemental appendix or appendices shall be filed on ECF so that all citations to the administrative record contained in the briefs are online. Each appendix or supplemental appendix shall have a table of contents and each page shall be numbered consecutively. In other words, do what you would do with a record on appeal. Ordered by Judge Brian M. Cogan on 8/28/2013. (Cogan, Brian) (Entered: 08/28/2013)
77 NOTICE 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 of Filing of Administrative Record (Attachments: # 1 Exhibit Certification of Administrative Record, # 2 Exhibit Index of Administrative Record) (Berwick, Benjamin) (Entered: 08/30/2013)
ORDER granting 76 Joint Motion for Leave to File Excess Pages. Ordered by Judge Brian M. Cogan on 8/28/2013. (Clarke, Melonie) (Entered: 08/30/2013)
78 Letter requesting clarification regarding appendix by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Timothy Geithner, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit A) (Rosselot, Julie) (Entered: 09/11/2013)
ORDER re 78 Joint Letter. Defendants' interpretation of the Order is correct in context, but since plaintiffs' approach will make it easier for the Court, the Court adopts plaintiffs' approach, which is of course without prejudice to defendants' contention that materials outside the administrative record should not be considered. Ordered by Judge Brian M. Cogan on 9/11/2013. (Cogan, Brian) (Entered: 09/11/2013)
79 MEMORANDUM in Opposition re 72 Notice of MOTION for Preliminary Injunction filed by All Defendants. (Berwick, Benjamin) (Entered: 09/11/2013)
80 Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary 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. (Attachments: # 1 Memorandum in Support, # 2 Rule 56.1 Statement) (Berwick, Benjamin) (Entered: 09/11/2013)
81 NOTICE 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 of Filing of Joint Appendix (Attachments: # 1 Appendix Part 1 (Pages 1−609), # 2 Appendix Part 2 (Pages 610−1100)) (Berwick, Benjamin) (Entered: 09/11/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 14 of 17

09/13/2013 09/13/2013
09/23/2013 09/23/2013 09/25/2013
09/25/2013
09/25/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013 09/26/2013

82 Corporate Disclosure Statement by American Civil Liberties Union Foundation (Lee, Jennifer) (Entered: 09/13/2013)
83 MOTION for Leave to File Amicus Curiae Brief by American Civil Liberties Union Foundation. (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion for Leave to Participate as Amici Curiae, # 2 Affidavit in Support Affirmation of Jennifer Lee, # 3 Memorandum in Opposition Amicus Curiae Brief, # 4 Proposed Judgment Proposed Order) (Lee, Jennifer) (Entered: 09/13/2013)
84 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 25, receipt number 0207−6447940. by American Civil Liberties Union Foundation. (Attachments: # 1 Affidavit in Support Affidavit of Daniel Mach in Support of Motion to Admit Counsel Pro Hac Vice, # 2 Proposed Order) (Lee, Jennifer) (Entered: 09/23/2013)
ORDER granting 84 Motion for Daniel Mach to appear Pro Hac Vice as counsel for amici curiae, The American Civil Liberties Union Foundation and the New York Civil Liberties Union Foundation. Ordered by Judge Brian M. Cogan on 9/23/2013. (Weisberg, Peggy) (Entered: 09/23/2013)
85 MOTION for Summary Judgment by Cardinal Spellman High School, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Geremia, Todd) (Entered: 09/25/2013)
86 RULE 56.1 STATEMENT re 85 MOTION for Summary Judgment filed by Cardinal Spellman High School, Catholic Charities of the Diocese of Rockville Centre, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York. (Geremia, Todd) (Entered: 09/25/2013)
87 RULE 56.1 STATEMENT re 80 Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment Response to Defendants' Rule 56.1 Statement filed by All Plaintiffs. (Geremia, Todd) (Entered: 09/25/2013)
88 MEMORANDUM in Support re 72 Notice of MOTION for Preliminary Injunction , 85 MOTION for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment filed by All Plaintiffs. (Geremia, Todd) (Entered: 09/26/2013)
89 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York re 88 Memorandum in Support of Filing of Supplemental Appendix Vol. I (Geremia, Todd) (Entered: 09/26/2013)
90 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York re 88 Memorandum in Support of Filing of Supplemental Appendix Vol. II (Geremia, Todd) (Entered: 09/26/2013)
91 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York re 88 Memorandum in Support of Filing of Supplemental Appendix Vol. III (Geremia, Todd) (Entered: 09/26/2013)
92 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York of Filing of Supplemental Appendix Vol. IV (Geremia, Todd) (Entered: 09/26/2013)
93 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York of Filing of Supplemental Appendix Vol. V (Geremia, Todd) (Entered: 09/26/2013)
94 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York of filing Corrected Supplemental Appendix Index (Vol. I) (Gorla, Julie) (Entered: 09/26/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 15 of 17

10/01/2013 10/01/2013 10/04/2013
10/07/2013 10/17/2013 10/18/2013
11/01/2013 11/01/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013 11/15/2013

95 Letter MOTION to Stay All Briefing Deadlines Pending Restoration of Appropriations 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. (Berwick, Benjamin) (Entered: 10/01/2013)
96 Letter Response to Motion to Stay by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York (Geremia, Todd) (Entered: 10/01/2013)
ORDER granting 83 Motion for leave to file Amicus Curiae Brief and 95 Motion to Stay All Briefing Deadlines Pending Restoration of Appropriations. The ACLU is granted leave to file its brief as Amicus Curiae. All outstanding briefing deadlines are hereby stayed until appropriations are restored. Plaintiffs' motion for a preliminary injunction at 72 is fully briefed and thus not subject to this Order. Ordered by Judge Brian M. Cogan on 10/4/2013. (Weisberg, Peggy) (Entered: 10/04/2013)
97 NOTICE by American Civil Liberties Union Foundation Brief of Amici Curiae ACLU and NYCLU in Opposition to Plaintiffs' Motion for Preliminary Injunction and in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (Lee, Jennifer) (Entered: 10/07/2013)
98 Letter Regarding Restoration of Appropriations 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 (Berwick, Benjamin) (Entered: 10/17/2013)
ORDER re 98 Letter. The revised briefing schedule proposed by the parties is acceptable. However, since both sides intend to move for summary judgment, they might consider whether to use their Local Rule 56.1 statements, either separately or combined upon consultation, as a basis for a submitted trial on stipulated facts (reserving their right to argue that certain stipulated facts, though true, are not relevant or material). In other words, the Court could deem the submissions on their motions for summary judgment to constitute a trial on stipulated facts, thus eliminating some procedural issues that might arise in the context of motions for summary judgment, but the Court would of course only do that if the parties mutually agree to it. The parties need not notify the Court if they want to do this until after submission of the final set of papers; the Court will assume they do not mutually agree unless it hears otherwise. Ordered by Judge Brian M. Cogan on 10/18/2013. (Weisberg, Peggy) (Entered: 10/18/2013)
99 MEMORANDUM in Opposition re 85 MOTION for Summary Judgment filed by All Defendants. (Attachments: # 1 Rule 56.1 Statement Response) (Berwick, Benjamin) (Entered: 11/01/2013)
100 REPLY in Support re 80 Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment filed by All Defendants. (Berwick, Benjamin) (Entered: 11/01/2013)
101 REPLY in Support re 85 MOTION for Summary Judgment filed by All Plaintiffs. (Gorla, Julie) (Entered: 11/15/2013)
102 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Bishop Gerald Walsh filed by Roman Catholic Archdiocese of New York. (Gorla, Julie) (Entered: 11/15/2013)
103 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Most Reverend Robert J. Brennan filed by Roman Catholic Diocese of Rockville Centre, New York. (Gorla, Julie) (Entered: 11/15/2013)
104 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Monsignor Gregory Mustaciuolo filed by Catholic Health Care System. (Gorla, Julie) (Entered: 11/15/2013)
105 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Richard J.J. Sullivan, Jr. filed by Catholic Health Services of Long Island. (Gorla, Julie) (Entered: 11/15/2013)

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 16 of 17

11/15/2013 11/15/2013 11/18/2013 11/18/2013 11/19/2013
11/22/2013 11/22/2013 11/26/2013 12/05/2013 12/10/2013 12/11/2013 12/16/2013 12/16/2013 02/11/2014
02/12/2014

106 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Father Trevor Nicholls filed by Cardinal Spellman High School. (Gorla, Julie) (Entered: 11/15/2013)
107 AFFIDAVIT/DECLARATION in Support re 85 MOTION for Summary Judgment of Monsignor Edmund J. Whalen filed by Monsignor Farrell High School. (Gorla, Julie) (Entered: 11/15/2013)
108 Letter MOTION for Leave to File Sur−Reply and Motion to Dismiss 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. (Berwick, Benjamin) (Entered: 11/18/2013)
109 RESPONSE to Motion re 108 Letter MOTION for Leave to File Sur−Reply and Motion to Dismiss filed by All Plaintiffs. (Geremia, Todd) (Entered: 11/18/2013)
ORDER granting in part defendants' 108 Motion for Leave to File Sur−Reply. Defendants' brief, of no more than three pages, will be filed by 11/22/2013; plaintiffs' three page response to the sur−reply is due 11/27/2013. Because defendants state that they do not wish to brief the issue, the Court deems defendants' letter as amending their motion to dismiss to apply the standing arguments from their Reply to plaintiffs ArchCare and CHSLI. Ordered by Judge Brian M. Cogan on 11/19/2013. (Weisberg, Peggy) (Entered: 11/19/2013)
110 NOTICE by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Monsignor Farrell High School, Roman Catholic Archdiocese of New York of Supplemental Authority (Geremia, Todd) (Entered: 11/22/2013)
111 REPLY in Opposition re 85 MOTION for Summary Judgment , REPLY in Support re 80 Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment filed by All Defendants. (Berwick, Benjamin) (Entered: 11/22/2013)
112 REPLY in Support re 85 MOTION for Summary Judgment , REPLY in Opposition re 80 Motion to Dismiss for Failure to State a Claim or, in the Alternative, for Summary Judgment , RESPONSE to Defendants' Sur−Reply, filed by All Plaintiffs. (Geremia, Todd) (Entered: 11/26/2013)
113 NOTICE 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 110 Notice(Other) Response to Plaintiffs' Notice of Supplemental Authority (Berwick, Benjamin) (Entered: 12/05/2013)
114 Letter Requesting Temporary Restraining Order by Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services of Long Island, Roman Catholic Archdiocese of New York, Roman Catholic Diocese of Rockville Centre, New York (Geremia, Todd) (Entered: 12/10/2013)
115 Letter Defendants' Response to Plaintiffs' Request for Temporary Restraining Order 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 (Berwick, Benjamin) (Entered: 12/11/2013)
116 MEMORANDUM DECISION AND ORDER granting in part and denying in part 80 85 Motions for Summary Judgment. Ordered by Judge Brian M. Cogan on 12/16/2013. (Cogan, Brian) (Entered: 12/16/2013)
117 FINAL JUDGMENT AND INJUNCTION. Ordered by Judge Brian M. Cogan on 12/16/2013. (Cogan, Brian) (Entered: 12/16/2013)
118 NOTICE OF APPEAL 116 Memo and Order 117 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. Service done electronically. (Berwick, Benjamin) Modified on 2/12/2014 (McGee, Mary Ann). (Entered: 02/11/2014)
Electronic Index to Record on Appeal sent to US Court of Appeals. 118 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be

Case: 1:12-cv-2542 As of: 11/11/2017 07:07 PM EST 17 of 17

03/28/2014
07/30/2015 09/11/2015 09/14/2015 10/17/2017
10/19/2017

made available to you. (McGee, Mary Ann) (Entered: 02/12/2014)
NOTICE re 118 Notice of Appeal. Case Manger at USCA contacted Attorney Julie Gorla, requesting that the District Court note on the Docket Sheet revisions pertaining to Roman Catholic Diocese of Rockville Center. The Amended Complaint filed on 8/14/2013, Doc. 69, names this party as a plaintiff again. The date of the revision 3/13/14 and confirmation of action was pursuant to Docketing Supervisor for EDNY. (McGee, Mary Ann) (Entered: 03/28/2014)
119 NOTICE of Appearance by Emily S. Newton on behalf of All Defendants (aty to be noticed) (Newton, Emily) (Entered: 07/30/2015)
120 MANDATE of USCA as to 118 Notice of Appeal, filed by U.S. Department of Treasury, Hilda Solis, Kathleen Sebelius, Timothy Geithner, U.S. Department of Labor, U.S. Department of Health and Human Services. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the District Court is REVERSED in relevant part. Issued as Mandate: 9/11/15. (McGee, Mary Ann) (Entered: 09/11/2015)
121 ORDER of USCA as to 118 Notice of Appeal, filed by U.S. Department of Treasury, Hilda Solis, Kathleen Sebelius, Timothy Geithner, U.S. Department of Labor, U.S. Department of Health and Human Services A mandate issued in error on in the above−referenced case. IT IS HEREBY ORDERED that the mandate in this case is recalled. Certified Copy issued: 9/14/15. (McGee, Mary Ann) (Entered: 09/14/2015)
122 MANDATE of USCA as to 118 Notice of Appeal, filed by U.S. Department of Treasury, Hilda Solis, Kathleen Sebelius, Timothy Geithner, U.S. Department of Labor, U.S. Department of Health and Human Services The parties in the above−referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Issued as Mandate: 10/17/17. USCA #14−427. (McGee, Mary Ann) (Entered: 10/17/2017)
Civil Case Terminated. Ordered by Judge Brian M. Cogan on 10/19/2017. (Cogan, Brian) (Entered: 10/19/2017)

 
 UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT _____________________________________________

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of December, two thousand fifteen.

________________________________________

Catholic Health Care System, Catholic Health Services Of Long Island, Cardinal Spellman High School, Monsignor Farrell High School,
Plaintiffs-Appellees,

ORDER Docket No: 14-427

v.

Sylvia Matthews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services, United States Department of Health and Human Services, Thomas Perez, in his official capacity as Secretary of the United States Department of Labor, United States Department of Labor, Jacob L. Lew, in his official capacity as Secretary of the United States Department of Treasury, United States Department of Treasury,

Defendants - Appellants. _______________________________________

Appellees, Cardinal Spellman High School, Catholic Health Care System, Catholic Health Services Of Long Island, Monsignor Farrell High School and Roman Catholic Archdiocese of New York, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

 
 UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of January, two thousand and sixteen.

Before:

Pierre N. Leval,

Rosemary S. Pooler,

Denny Chin,

Circuit Judges.

_______________________________________

Catholic Health Care System, Catholic Health

Services Of Long Island, Cardinal Spellman

High School, Monsignor Farrell High

School,

ORDER Docket No. 14-427

Plaintiffs-Appellees,
v.
Sylvia Matthews Burwell, et al.,
Defendants - Appellants. _______________________________________
Appellees move to stay the mandate pending the filing and disposition of a petition for a writ of certiorari.
IT IS HEREBY ORDERED that the motion is GRANTED.

For the Court:
Catherine O’Hagan Wolfe, Clerk of Court