Case 2:12-cv-00207-JFC Document 41 Filed 08/09/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania Corporation; WLH ENTERPRISES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler; and CARRIE E. KOLESAR;
Plaintiffs
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

) ) ) ) ) ) ) ) ) ) Case No. 2:12-cv-00207-JFC ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

NOTICE OF CHANGE OF FIRM NAME AND EMAIL ADDRESSES TO THE COURT AND ALL ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT attorneys Gregory S. Baylor, Steven H. Aden, Matthew S. Bowman, David A. Cortman, Kevin H. Theriot, and Erik W. Stanley’s firm name changed from Alliance Defense Fund to Alliance Defending Freedom. This name change affects counsels’ email addresses as well, changing them from @telladf.org to

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@alliancedefendingfreedom.org, as seen below. Counsels’ mailing addresses and telephone

numbers remain unchanged.

Respectfully submitted this 9th day of August, 2012.

s/Gregory S. Baylor Gregory S. Baylor
Texas Bar No. 01941500 gbaylor@ alliancedefendingfreedom.org Steven H. Aden DC Bar No. 466777 saden@ alliancedefendingfreedom.org Matthew S. Bowman DC Bar No. 993261 m bowman@alliancedefendingfreedom.org ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile)

Kevin H. Theriot Kansas Bar No. 21565 ktheriot@alliancedefendingfreedom.org
Erik W. Stanley Kansas Bar No. 24326 estanley@ alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile)

David A. Cortman Georgia Bar No. 188810 dcortm an@alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile)

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on August 9, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Eric R. Womack, Bradley P. Humphreys, and Albert W. Schollaert, Counsel for Defendants.

s/ Gregory S. Baylor 2

 
 Case 2:12-cv-00207-JFC Document 98 Filed 10/18/13 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER, )

in his personal capacity and as owner and

)

operator of the sole proprietorship WLH

)

Enterprises; THE SENECA HARDWOOD

)

LUMBER COMPANY, INC., a Pennsylvania

)

Corporation; and CARRIE E. KOLESAR

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the United States Department of )

Health and Human Services; THOMAS E. PEREZ, )

in his official capacity as Secretary of the United )

States Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the United )

States Department of the Treasury; UNITED

)

STATES DEPARTMENT OF HEALTH AND )

HUMAN SERVICES; UNITED STATES

)

DEPARTMENT OF LABOR; and UNITED

)

STATES DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

_________________________________________ )

Case No. 2:12-cv-00207-JFC

SECOND AMENDED COMPLAINT Plaintiffs, by their attorneys, state as follows:

NATURE OF THE ACTION 1. This lawsuit challenges regulations issued by Defendants under the 2010 Patient Protection and Affordable Care Act that compel employee and student health insurance plans to provide free coverage of contraceptive services, including so-called “emergency contraceptives” that cause early abortions.
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2. Plaintiff Geneva College is a Christ-centered institution of higher learning. It believes that God has condemned the intentional destruction of innocent human life. The College holds, as a matter of religious conviction, that it would be sinful and immoral for Geneva intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion, which destroys human life. It holds that one of the prohibitions of the Ten Commandments (“thou shalt not murder”) precludes it from facilitating, assisting in, or enabling the use of drugs that can and do destroy very young human beings in the womb.
3. Plaintiffs Wayne L. Hepler and Carrie E. Kolesar are a father and daughter who, with several of Mr. Hepler’s other children, own The Seneca Hardwood Lumber Company, Inc. Located in Cranberry, Pennsylvania, Seneca Hardwood is a lumber business that Mr. Hepler runs in conjunction with a sawmill that he operates as WLH Enterprises, his sole proprietorship. The Hepler family owners and operators of these businesses are practicing Catholic Christians who in their personal lives and their operation of Seneca and WLH adhere to Catholic Church teachings on sexuality and the sanctity of innocent human life. Following these beliefs, the Hepler family has for multiple years omitted abortifacients, contraception, sterilization, and related education and counseling from their health insurance plan covering themselves and their employees and family members. (Seneca Hardwood Lumber Company and the Heplers, including Wayne Hepler’s activities in WLH Enterprises, collectively are referred to in this Second Amended Complaint as “the Hepler Plaintiffs.”)
4. The regulations impact the Hepler Plaintiffs not only as employers, but as employees. It robs the individual Hepler family members of morally acceptable health insurance, instead potentially forcing them and their daughters to receive coverage for “free” contraception and sterilization from the health insurance plan they will be forced to co-purchase.
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5. Neither the College nor the Hepler Plaintiffs qualify for the extraordinarily narrow religious exemption from the regulations. That exemption protects only “churches, their integrated auxiliaries, and conventions or associations or churches” and “the exclusively religious activities of any religious order.”
6. For purely secular reasons, the government has elected not to impose the challenged regulations upon thousands of other organizations. Employers with “grandfathered” plans and favored others are exempt from these rules.
7. Defendants have offered entities like the College—but not ones like the Hepler Plaintiffs—a so-called “accommodation” of their religious beliefs and practices. However, the alleged accommodation fails. It still conscripts Geneva into the government’s scheme, forces the College to obtain an insurer and to submit a form that specifically causes that insurer to pay for the objectionable drugs, so that such coverage will accrue to the College’s own employees, due to the fact that those employees have insurance as an employee benefit from the College and from that insurer.
8. Under the supposed accommodation, Defendants continue to treat entities like the College as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar entities that qualify for the exemption. Defendants’ rationale for entirely exempting churches and integrated auxiliaries from the regulations – their employees are likely to share their religious convictions – applies equally to the College. Yet, Defendants refuse to exempt the College, offering only an flimsy, superficial, and utterly semantic “accommodation” that falls woefully short of addressing the substance of its concerns. And the Hepler Plaintiffs do not receive even that much consideration from Defendants.
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9. If Plaintiffs follow their religious convictions and decline to participate in the government’s scheme, they will face, among other injuries, enormous fines that will cripple their respective operations and/or the loss of morally acceptable health insurance.
10. By unconscionably placing Plaintiffs in this untenable position, Defendants have violated the Religious Freedom Restoration Act; the Free Exercise, Establishment and Free Speech Clauses of the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment; and the Administrative Procedure Act.
11. Plaintiffs therefore respectfully request that this Court vindicate their rights through declaratory and permanent injunction relief, among other remedies.
IDENTIFICATION OF PARTIES AND JURISDICTION 12. Plaintiff Geneva College is a Christ-centered institution of higher learning located in Beaver Falls, Pennsylvania. It is a Pennsylvania not-for-profit corporation. 13. Plaintiff Wayne L. Hepler lives in Cranberry, Pennsylvania. He is 58% owner, President, and Secretary of The Seneca Hardwood Lumber Company, Inc. He is also the sole owner of WLH Enterprises. WLH Enterprises is a sawmill and sole proprietorship owned by Wayne L. Hepler. It is located at 5939 Route 38, Emlenton, Pennsylvania. WLH Enterprises employees participate in the health insurance plan of Seneca Hardwood As an employee, Mr. Hepler is a participant in the health insurance plan of Seneca Hardwood, and beneficiaries of his plan include his wife, their two high-school aged daughters, another daughter under age 26, two sons in college, and one son under age 26. 14. Plaintiff The Seneca Hardwood Lumber Company, Inc., is a Pennsylvania Corporation located at 212 Seneca Hardwood Road, Cranberry, Pennsylvania. The Seneca Hardwood Lumber Company, Inc., is designated as an S-corporation.
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15. Plaintiff Carrie E. Kolesar lives in Cranberry, Pennsylvania. She is 6% owner of Seneca Hardwood, and her husband is an employee of Seneca Hardwood. Mrs. Kolesar’s husband is an employee of Seneca and participant in its health insurance plan, making her and her eight children beneficiaries of the same plan.
16. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
17. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
18. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
19. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
20. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
21. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
22. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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23. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988.
24. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and the Plaintiffs are located in this district.
FACTUAL ALLEGATIONS I. Geneva College’s Religious Beliefs and Provision of Educational Services in General
25. Geneva College was established in 1848 by the Reformed Presbyterian Church of North America (RPCNA). The College’s mission is to glorify God by educating and ministering to a diverse community of students in order to develop servant-leaders who will transform society for the kingdom of Christ.
26. The College pursues this mission through biblically-based programs and services anchored in the historic, evangelical, and Reformed Christian faith. The vocationally-focused curriculum is rooted in the liberal arts and sciences and is delivered through traditional and specialized programs.
27. Central to the mission of Geneva College is its desire to glorify God. The College believes that the Bible teaches that the lives of all people (especially followers of Jesus Christ) should glorify God. The College embraces the oft-quoted statement of the Westminster Shorter Catechism: “Man’s chief end is to glorify God and enjoy Him forever.”
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28. Geneva College believes that one of its central purposes is “to see the glory of God in all the aspects of His Word and world. This is furthered by having students, faculty and, ultimately, the whole of academe see the glory that is God’s in His creation, deeds, disciples and, above all, in His Son, the Lord of Glory.”
29. Geneva College follows the creedal commitment in the application to many of its policies and practices that flow from the Reformed Presbyterian Church of North America. That commitment is derived from the Holy Bible and is articulated in the Westminster Confession of Faith, the Westminster Larger and Shorter Catechisms, and the Testimony of the RPCNA.
30. Members of Geneva’s Board of Corporators, which governs the College, must be members in good standing of the Reformed Presbyterian Church of North America. The Synod of the RPCNA elects all members of the Board of Corporators. The Board of Corporators exercises control for the RPCNA over the purpose, policies, and property of the College.
31. The RPCNA is a church and/or convention or association of churches and thus need not file an informational return with the Internal Revenue Service under 26 U.S.C. § 6033(a)(3)(A)(i).
32. If the College were an “integrated auxiliary” of the RPCNA, it would fall within the scope of the narrow religious exemption to the HHS Mandate. Because the College and the RPCNA chose not to structure their relationship this way, the College falls outside the scope of the exemption and is thus subject to the Mandate.
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33. A Board of Trustees operates Geneva College under authority delegated by the Board of Corporators. Trustees must be members of either the RPCNA or other Reformed and Evangelical Christian congregations.
34. Geneva College draws its faculty, staff, and administration from among those who profess faith in Christ and otherwise agree with the College’s Christian convictions, including its convictions about the sanctity and dignity of human life.
35. Although the College does not require a profession of faith as a prerequisite for student admission, it does give priority in its recruitment to the evangelical Christian community and seeks to create a Christian peer influence among students. All students are expected to live by the standards of historic Christian morality, including those expressed in the Ten Commandments.
36. Geneva College has a long history of providing education to individuals from segments of society that have been disenfranchised. In the years following the Emancipation Proclamation of 1863, a significant percentage of its students were freed black slaves. Geneva was among the earliest schools to matriculate women to a full degree program. The College is building on that history through special efforts to recruit and retain African-American, Latino, other minority, and international students, believing that its student body should reflect the diversity of our world.
37. At certain points in its history, Geneva has found it necessary to engage in civil disobedience of unjust laws. In the 1860s, Geneva College was a station on the Underground Railroad, which sought, against the law of the land, to hide and transport escaped slaves. The College believed that the institution of slavery was inimical to biblical faith.
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38. The College’s current total enrollment (including traditional undergraduate, adult undergraduate, and graduate students) is approximately 1,850.
39. The College has approximately 350 employees, and about 280 of them are full-time. There are approximately 95 full-time faculty members.
II. The Religious Beliefs of Geneva College and of the Reformed Presbyterian Church of North America Regarding Abortion 40. The RPCNA Testimony, one articulation of the Church’s religious beliefs,
declares as follows: “Unborn children are living creatures in the image of God. From the moment of conception to birth they are objects of God’s providence as they are being prepared by Him for the responsibilities and privileges of postnatal life. Unborn children are to be treated as human persons in all decisions and actions involving them. Deliberately induced abortion, except possibly to save the mother’s life, is murder.”
41. In support of this declaration, the Testimony cites Exodus 20:13 (“thou shalt not murder”), Exodus 21:22-23, and Psalm 139:13-16, all of which the College believes are part of the inerrant and infallible Word of God.
42. The Westminster Larger Catechism, another articulation of the Church’s beliefs, sets forth the duties required by the Commandment against murder (which the Catechism numbers as the Sixth Commandment). These include “all careful studies, and lawful endeavors, to preserve the life of ourselves and others by resisting all thoughts and purposes, subduing all passions, and avoiding all occasions, temptations, and practices, which tend to the unjust taking away the life of any . . . and protecting and defending the innocent.” In support of this statement, the Larger Catechism cites the following Scripture verses: Eph. 5:28-29; 1 Kings 18:4; Jer. 26:15-16; Acts 23:12, 16-17, 21, 27; Eph. 4:26-27; 2 Sam. 2:22; Deut. 22:8; Matt. 4:6-7; Prov. 1:10-11, 15-16; 1 Sam. 24:12; 1 Sam. 26:9-11; Gen. 37:21-22; Ps. 82:4; Prov.
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24:11-12; 1 Sam. 14:45; Jas. 5:7-11; Heb. 12:9; 1 Thess. 4:11; 1 Pet. 3:3-4; Ps. 37:8-11; Prov. 17:22; Prov. 25:16, 27; 1 Tim. 5:23; Isa. 38:21; Ps. 127:2; Eccl. 5:12; 2 Thess. 3:10, 12; Prov. 16:26; Eccl. 3:4, 11; 1 Sam. 19:4-5; 1 Sam. 22:13-14; Rom. 13:10; Luke 10:33-34; Col. 3:12-13; Jas. 3:17; 1 Pet. 3:8-11; Prov. 15:1; Judg. 8:1-3; Matt. 5:24; Eph. 4:2, 32; Rom. 12:17, 20-21; 1 Thess. 5:14; Job 31:19-20; Matt. 25:35-36; and Prov. 31:8-9.
43. The Westminster Larger Catechism also identifies “the sins forbidden in the sixth commandment.” Among these are “all taking away the life of ourselves, or of others, except in case of public justice, lawful war, or necessary defence; the neglecting or withdrawing the lawful and necessary means of preservation of life; . . . and whatsoever else tends to the destruction of the life of any.” In support of this statement, the Larger Catechism cites the following Scripture verses: Acts 16:28; Gen. 9:6; Num. 35:31, 33; Jer. 48:10; Deut. 20:1-20; Ex. 22:2-3; Matt. 25:42-43; Jas. 2:15-16; Eccl. 6:1-2; Matt. 5:22; 1 John 3:15; Lev. 19:17; Prov. 14:30; Rom. 12:19; Eph. 4:31; Matt. 6:31, 34; Luke 21:34; Rom. 13:13; Eccl. 12:12; Eccl. 2:22-23; Isa. 5:12; Prov. 15:1; Prov. 12:18; Ezek. 18:18; Ex. 1:14; Gal. 5:15; Prov. 23:29; Num. 35:16-18, 21; and Ex. 21:18-36.
44. The Foreword to a recent re-issue of the 1888 History of the Reformed Presbyterian Church in America observes that the Testimony “has been updated to keep pace.” As an example, the Foreword states that “[t]he Church of 1888 did not make reference to willful abortion, as that was not an issue. Today, however, abortion is one of the most dynamic social controversies, and we should praise God that he has enabled this church to maintain a testimony against such murder.”
45. Geneva College unreservedly shares the RPCNA’s religious views regarding abortion, believing that the procurement, participation in, facilitation of, or payment for abortion
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(including abortion-causing drugs like Plan B and ella) violates the Commandment against murder (and the interpretation of that Commandment in the Westminster Standards) and is inconsistent with the dignity conferred by God on creatures made in His image.
46. By “conception,” “pregnancy,” “abortion” and related concepts referenced herein regarding the sanctity of innocent human life and prohibitions on its destruction, Geneva College understands such concepts to recognize and protect the lives of human beings from the moment of fertilization.
47. The College has participated in Life Ring, a community-wide pro-life awareness campaign that encourages churches with bell towers to ring their bells in mourning on the anniversary of the U.S. Supreme Court’s 1973 decision in Roe v. Wade.
48. Geneva has sponsored public events in which it has explored the religious dimensions of the abortion issue. These include an October 18, 2011, panel discussion entitled, “Abortion: Is it an Issue of Justice for the Mother or Unborn Child?”
49. Geneva’s publications frequently highlight the pro-life activities of students, alumni, and staff. For example, the March 2005 issue of a College newsletter reported on a letter sent by the College’s student-led pro-life group to President George W. Bush, supporting the “culture of life” discussed in the President’s 2005 state of the union address. The February/March 2009 issue of the newsletter reported on the volunteer work of three Geneva staff members at a local pro-life pregnancy resource center. On January 21, 2009, Brenda Schaeffer delivered a message at the College chapel service regarding the value of human life and the heartache she experienced after having an abortion.
50. In January 2012, a group of Geneva College students and a staff member went to Washington, DC, to participate in the annual March for Life, at which they expressed their
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support for the sanctity of human life and their opposition to the Supreme Court’s decision in Roe v. Wade.
51. Geneva College does not permit members of its community to participate in abortion. The Student Handbook states that “[m]orally unacceptable practices according to Biblical teaching are not acceptable for members of the Geneva College community. Specific acts such as . . . sexual sins (i.e. premarital sex, cohabitation with a member of the opposite sex, rape, adultery, homosexual behavior, abortion, etc.) . . . will not be tolerated.”
III. Geneva College’s Group Health Insurance Plans 52. To fulfill its religious commitments and duties in the Christ-centered educational
context, Geneva College promotes the spiritual and physical well-being and health of its employees and students. This includes the provision of generous health insurance to employees and their dependants and the facilitation of a student health plan.
53. The plan year for the current employee health plan began on January 1, 2013. The next plan year is scheduled to begin on January 1, 2014.
54. Consistent with its religious beliefs about the sanctity of life, Geneva College’s contract for employee health coverage states that it excludes “[a]ny drugs used to abort a pregnancy.”
55. The College requires that all full-time undergraduate students carry health insurance. If a student does not provide the College information about his or her health insurance coverage, the student will be enrolled in the College’s UnitedHealthcare Plan. Full-time graduate students may enroll in the College’s UnitedHealthcare Plan on a voluntary basis.
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56. The College’s religious convictions prevent it from facilitating student health insurance coverage that enables or facilitates access to ella, Plan B, or IUDs. The student health plan for the 2013-14 academic year does not include coverage of these items.
57. The student plan does not possess grandfathered status. 58. The plan year for the student plan began on August 1, 2013. It is scheduled to begin on August 1, 2014 for the 2014-15 academic year.
IV. The Heplers and Their Religious Beliefs in Business Practice 59. Wayne L. Hepler, his wife, and their adult children and families including Carrie
E. Kolesar (collectively, “the Heplers”) are practicing and believing Catholic Christians. 60. They strive to follow Catholic ethical beliefs and religious and moral teachings in
all areas of their lives, including in the operation of their businesses. 61. The Heplers’ sincerely-held religious convictions do not allow them to violate
Catholic religious and moral teachings in their decisions about the operation of their businesses. They believe that according to the Catholic faith their operation of their businesses must be guided by ethical social principles and Catholic religious and moral teachings, that the adherence of their business practice according to such Catholic ethics and religious and moral teachings is a genuine calling from God, that their Catholic faith prohibits them to sever their religious beliefs from their daily business practice, and that their Catholic faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical social principles of Catholic teaching, into their life and work.
62. The Catholic Church teaches that abortifacient drugs, contraception and sterilization are intrinsic evils.
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63. As a matter of religious faith the Heplers believe that those Catholic teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.
64. Consequently, the Heplers believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, sterilization, and related education and counseling, through the inclusion of such items in health insurance coverage they offer at their businesses or participate in for their own individual families.
65. Mr. Hepler and Mrs. Kolesar, as well as their family members who also own and/or are employed at Seneca Hardwood or WLH Enterprises, have strongly held religious beliefs against their own personal family contribution, as employees or beneficiaries of a health insurance plan, to a health insurance plan that covers abortifacient drugs, contraception, sterilization, and related education and counseling. Moreover, they oppose participation in such a plan in a way by which it would cover their minor or college-aged children for such items, and/or to the extent their children could access such items through their own plan, even without their knowledge or consent.
66. The Heplers likewise have religious beliefs in favor of providing health insurance coverage to their family members and other Catholic employees in a form that is consistent with those employees’ religious beliefs against participating in a plan that covers abortifacient drugs, contraception, sterilization, and related education and counseling.
67. The Heplers have, for a substantial period of time to the present, striven to operate their businesses in promotion of Catholic ethical and religious principles in a variety of ways including but not limited to the structuring of their health insurance plan.
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68. Heplers have displayed religious imagery at the offices of Seneca Hardwood, and are building a Catholic chapel in Seneca Hardwood’s retail store.
69. The Heplers have directed their businesses to engage in charitable donations towards Catholic efforts.
70. Mr. Hepler has built and runs the St. Thomas More House of Prayer in Cranberry, Pennsylvania, a Catholic retreat house that promotes devotion to God and family prayer centered around the Psalms of the Bible.
71. For many years Mr. Hepler was a member of the board of the Couple to Couple League, a national Catholic organization dedicated to the promotion of “natural family planning,” and an organization that for religious, moral and scientific reasons opposes all abortifacients, contraceptives, sterilization, and education and counseling in favor of the same.
72. Mr. Hepler and his thirteen children including Mrs. Kolesar are dedicated to the Catholic Church’s teachings on the sanctity of human life and sexuality. Mrs. Kolesar and her siblings and their children have participated in many national and local pro-life activities such as public marches. Mrs. Kolesar and some of her siblings have taught marriage preparation for Catholic couples including teaching about the Church’s position in favor of God’s plan for sexuality and against abortifacients, contraceptives, and sterilization.
73. Mr. Hepler owns a 58% share in The Seneca Hardwood Lumber Company, Inc. (“Seneca Hardwood” or “Seneca”). Mrs. Kolesar and six of her adult siblings each own a 6% share. Together they constitute the owners and the Board of Directors of Seneca Hardwood.
74. Seneca Hardwood is a lumber company with 20 full-time employees. Sixteen of the 20 employees, including Mr. Hepler as well as Mrs. Kolesar’s husband, are covered by Seneca Hardwood’s health insurance plan.
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75. In conjunction with Seneca Hardwood, Mr. Hepler owns and operates a sawmill under the sole proprietorship of WLH Enterprises. WLH Enterprises has six full-time employees. Four of those six employees are covered under Seneca Hardwood’s health insurance plan, in which WLH Enterprises participates.
76. As part of fulfilling their organizational mission and Catholic beliefs and commitments, the Heplers, Seneca Hardwood, and WLH Enterprises provide generous health insurance for their employees.
77. The Hepler Plaintiffs have religious beliefs against dropping health insurance for their employees who need it.
78. The Hepler Plaintiffs have religious beliefs against requiring themselves and their families and their employees who share their beliefs and who are participants and beneficiaries in Seneca’s health plan to lose a health plan that omits coverage of abortifacients, contraceptives and sterilization. This would require them to enter a health insurance market where they would need to buy health insurance for themselves. In that market, because of the Mandate, all such plans would include the coverage of abortifacients, contraceptives and sterilization. This would cause participation in morally unacceptable plans in violation of the beliefs of the Heplers, the Kolesars, their covered family members, and employees who share their beliefs.
79. The Hepler Plaintiffs have religious beliefs against participating in a health plan, either through Seneca or through one they would buy in the open market, that would cover abortifacients, contraceptives and sterilization for their minor children or college-aged children as beneficiaries in the plan.
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80. The Hepler Plaintiffs purchase their business health insurance plan from a company in the health insurance market.
81. For many reasons, including significant plan changes made in the past several years, as well as a lack of the insurer providing the required notices, the Hepler Plaintiffs’ plan is not grandfathered under ACA.
82. The next plan year for the Hepler Plaintiffs’ plan will begin on July 1, 2014. 83. Consistent with the Hepler Plaintiffs’ religious commitments, their health insurance plan does not cover abortifacient drugs, contraception, sterilization, or education or counseling in favor of the same. It has not done so for the present plan year and for multiple prior years. 84. However, the Mandate will force the Hepler Plaintiffs’ July 2014 health insurance plan (and, absent court relief, possibly their present plan) to provide coverage of abortifacient drugs, contraception, sterilization, and related education and counseling against their religious beliefs.
V. The ACA and Defendants’ Mandate Thereunder 85. In March 2010, Congress passed, and President Obama signed, the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA).
86. The ACA regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
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87. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
88. These services include screenings, medications, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women that are subsequently “provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an HHS sub-agency. 42 U.S.C. § 300gg-13(a)(1)-(4).
89. These services must be covered without “any cost sharing.” 42 U.S.C. § 300gg-13(a).
The Interim Final Rule 90. On July 19, 2010, HHS published an interim final rule regarding the ACA’s requirement that certain preventive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). 91. HHS issued the interim final rule without a prior notice of rulemaking or opportunity for public comment. Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730. 92. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
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93. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
94. In addition to reiterating the ACA’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
95. The Interim Final Rule makes clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
96. The Interim Final Rule acknowledges that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”)
97. In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41730.
98. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
99. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
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100. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
101. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
102. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures” and related “patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
103. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the “morning-after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
104. Some of these drugs and devices—including “emergency contraceptives” such as Plan B and ella and certain IUDs—are known abortifacients – drugs and devices that can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
105. Indeed, the FDA’s own Birth Control Guide states that Plan B, its chemical cognates, ella, and IUDs can work by “preventing attachment (implantation) to the womb
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(uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, see FDA, Office of Women’s Health, “Birth Control Guide,” available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius, No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013).
106. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo.
107. On August 1, 2011, a mere 13 days after the IOM published its recommendations, HRSA issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines.
108. Insurance plans starting after August 1, 2012 were subject to the Mandate. 109. Any non-exempt employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject (because of the Mandate) to heavy fines approximating $100 per employee per day. Such employers are also vulnerable to lawsuits by the Secretary of Labor and by plan participants. 110. A large employer entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the ACA imposes monetary penalties on entities that so refuse. The exact magnitude of these penalties seems to vary according to the complicated provisions of the ACA, but it is estimated the fine is approximately $2,000 per employee per year. The Religious Employer Exemption 111. On the very same day HRSA rubber-stamped the IOM’s recommendations, HHS promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed. Reg. 46621 (published Aug. 3, 2011).
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112. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was narrowly defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “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 46626 (emphasis added).
113. The statutory citations in the fourth prong of this test refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3).
114. The “religious employer” exemption was thus extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if their purpose was to inculcate faith and if they hired and served primarily people of their own faith tradition.
115. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See http://www.hrsa.gov/womensguidelines.
116. Although religious organizations like the College and individuals and corporations like the Hepler Plaintiffs share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and religious orders, HHS deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide
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for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
117. Therefore, the vast majority of organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employer” exemption.
118. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
119. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
120. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employer” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
121. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued. HHS was unresponsive to numerous and well-grounded assertions that the Mandate violated statutory and constitutional protections of rights of conscience.
The Temporary Enforcement Safe Harbor 122. The public outcry for a broader religious employer exemption continued for many months. On January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be
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“provided an additional year . . . to comply with the new law.” See Jan. 20, 2012 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
123. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering free contraceptive and abortifacient services.
124. HHS declared that it would not take any enforcement action against an eligible organization during the safe harbor period, which would extend until the first plan year beginning after August 1, 2013.
125. HHS also indicated it would develop and propose changes to the regulations in an effort to accommodate the religious liberty objections of non-exempt, nonprofit religious organizations following the expiration of the safe harbor.
126. Despite the safe harbor and HHS’s accompanying promises, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the contraception and abortifacient mandate and narrow religious employers exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking 127. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012).
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128. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added).
129. The ANPRM proposed, in vague terms, that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
130. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
131. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely restating previous comments that the government’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to morally objectionable services.
The Notice of Proposed Rulemaking 132. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013). 133. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
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134. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461.
135. Under the NPRM’s proposal, a “religious employer” would be one “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.” 78 Fed. Reg. at 8461.
136. HHS emphasized, however, that this proposal “would 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. 8456, 8461.
137. In other words, religious organizations like the College (much less individuals and entities like the Hepler Plaintiffs) that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption.
138. Second, the NPRM followed up on HHS’s earlier-stated intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
139. The proposed “accommodation” did not resolve the concerns of religious organizations like the College because it continued to force them to deliberately provide health insurance that would trigger access to abortion-inducing drugs and related education and counseling.
140. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a gross violation of their religious liberty because it would conscript their
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health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
141. Geneva College submitted comments on the NPRM, stating essentially the same objections set forth in this complaint.
142. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
143. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.
See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25) (emphasis added).
144. Given the timing of these remarks, it is clear that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
The Final Mandate 145. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which ignores the objections repeatedly raised by religious organizations and others and continues to co-opt objecting employers into the government’s scheme of expanding free access to
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contraceptive and abortifacient services. 78 Fed. Reg. 39870. Defendants declared that the Final Mandate would be effective August 1, 2013, only one month after it was issued.
146. Under the Final Mandate, the discretionary “religious employer” exemption, which is still implemented via footnote on the HRSA website, see http://www.hrsa.gov/womensguidelines, remains limited to churches, integrated auxiliaries, and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
147. Defendants attempt to justify the extraordinarily narrow religious exemption as follows: “The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39874.
148. All other organizations, including the College and the Heplers, are denied the exemption’s protection.
149. Geneva College does not fall within the scope of this narrow religious exemption. It is not a church, the integrated auxiliary of a church, or a convention or association of churches, nor does it perform the exclusively religious activities of a religious order.
150. Despite the family composition of much of their business activities, and Wayne Hepler’s identity as a religious person engaging in a sole proprietorship, the Hepler Plaintiffs are
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also not “religious” enough under this definition, for similar reasons, because Seneca Hardwood and WLH Enterprises are business entities, and because Mr. Hepler and Mrs. Kolesar as individuals receive zero protection under the exemption.
151. The Final Mandate declares that the rules concerning contraceptive and abortifacient services will “apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer.” 78 Fed. Reg. at 39897.
152. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
153. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
154. The College is eligible for the so-called accommodation. The Hepler Plaintiffs are not.
155. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875.
156. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889.
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157. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer. (If the organization has a self-insured plan, it would deliver the executed self-certification to the plan’s third party administrator.) 78 Fed. Reg. at 39875.
158. If it elects to invoke the accommodation, Geneva would be required to execute the self-certification and deliver it to its insurance issuer before January 1, 2014.
159. By delivering its self-certification to its insurer, the College would trigger the insurer’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” 78 Fed. Reg. at 39875-76.
160. By issuing its self-certification, the College would be identifying its participating employees to the insurer for the distinct purpose of enabling the government’s scheme to facilitate free access to contraceptive and abortifacient services.
161. The insurer’s obligation to make direct payments for contraceptive and abortion services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
162. Therefore, the College would have to coordinate with its insurer whenever it added or removed employees and beneficiaries from its healthcare plan and, as a direct and unavoidable result, from the abortifacient services payment scheme.
163. Insurers would be required to notify plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876.
164. This would also require the College to coordinate the notices with its insurer.
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165. The College’s insurer would be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77.
166. Thus, any payment or coverage disputes presumably would be resolved under the terms of the College’s existing plan documents.
167. Thus, even under the accommodation, the College and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to contraceptive and abortifacient services.
168. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
169. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
170. Nevertheless, even if the payments, over time, eventually resulted in cost savings in other areas, it is undisputed that it would cost money at the outset to make the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
171. Moreover, if the cost savings that allegedly will arise make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
172. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. at 39877.
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173. This encourages issuers to artificially inflate the eligible organization’s premiums. 174. Under this methodology—assuming it is even legal—the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its conscience, as if the accommodation had never been made. 175. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878. 176. There is no legal authority for forcing third parties to pay for services provided to the employees of eligible organizations under the accommodation. 177. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to directly purchase contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries. 178. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority. 179. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations with insured plans from being co-opted as the central cog in the government’s scheme to expand access to free contraceptive and abortifacient services even when the organizations object to facilitating those services. 180. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s central and critical function in executing the government’s scheme for enabling access to “free” contraceptive and abortifacient services.
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181. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
182. The College cannot participate in or facilitate the government’s scheme without violating its religious convictions.
The Final Mandate and Plaintiffs’ Health Insurance Plans 183. The plan year for the College’s next employee health plan begins on January 1, 2014. As a result, the College now faces a choice. It can transgress its religious commitments by including abortifacients in the plan or by directing its insurance issuer to provide the exact same services. Or it can transgress its religious duty to provide for the well-being of its employees and their families by dropping its employee health insurance plan altogether in order to avoid being complicit in the provision of abortifacients, thereby incurring annual fines of at least $500,000. 184. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the crippling daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132. 185. The plan year for the College’s next student plan begins on August 1, 2014. As a result, the College will face a choice in the period leading up to that date. It can transgress its religious commitments by including abortifacients in the plan or by triggering its insurance issuer to provide the exact same services by providing the self-certification. Or it can transgress
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its religious duty to provide for the well-being of its students by dropping its student health insurance plan altogether in order to avoid being complicit in the provision of abortifacients.
186. The College’s religious convictions forbid it from participating in any way in the government’s scheme to provide free access to abortifacient services through the College’s health care plans.
187. Dropping its insurance plans would place the College at a severe competitive disadvantage in its efforts to recruit and retain employees and students.
188. The Final Mandate forces the College to deliberately provide health insurance that would facilitate free access to emergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain these drugs from other sources.
189. The Final Mandate forces the College to facilitate government-dictated education and counseling concerning abortion that directly conflicts with its religious beliefs and teachings.
190. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that the College seeks to convey.
191. Small employers such as the Hepler Plaintiffs suffer substantial burdens under the Mandate if they are forced to choose between providing health insurance consistent with their religious beliefs or providing no health insurance at all.
192. The “option” of the Hepler Plaintiffs to drop their employee health insurance would take health insurance away from their needy employees in violation of the Heplers’ religious beliefs.
193. The “option” of the Hepler Plaintiffs to drop their employee health insurance would take health insurance away from themselves, their sibling co-owners and their families as employees and beneficiaries of the same plans, harming their families’ well-being.
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194. The “option” of the Hepler Plaintiffs to drop their employee health insurance would cause Mr. Hepler, Mrs. Kolesar, their sibling co-owners and their families, and other Catholics and person with similar beliefs who work for them, to have to obtain their own health insurance (for health reasons, and because ACA compels them to do so) in a market where the Mandate forces all plans they could purchase to cover abortifacients, contraception, sterilization and related education and counseling for themselves and their minor children and college-aged children.
195. Losing the moral acceptability of their plan through Seneca and needing to obtain plans from the open market that the Mandate renders morally unacceptable violates the religious beliefs of Mr. Hepler, Mrs. Kolesar, their sibling co-owners and their families, and other Catholics who work for them. Similarly, it violates the religious beliefs of the Hepler Plaintiffs to force them to abandon their own family members and friends into a market of mandatorily immoral health insurance plans.
196. The Hepler Plaintiffs need to retain health insurance for their families and children, but object to being forced to participate in a plan, either through Seneca or the open market, wherein their minor children and college-aged children would, as beneficiaries of the plan, receive coverage of abortifacients, contraception, sterilization and related education and counseling, possibly even receiving such items without their knowledge or consent.
197. The “option” of the Hepler Plaintiffs to drop their employee health insurance would impose a competitive disadvantage on the Hepler Plaintiffs’ businesses since they would be far less able to attract and keep good employees if they do not offer health insurance to their employees.
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198. If the Hepler Plaintiffs tried to compensate their employees for the loss of health insurance benefits so the employees could purchase their own equivalent plans, it would cost the Hepler Plaintiffs significantly more to do so than those the Hepler Plaintiffs presently contribute to their employees’ plans. This cost difference represents a financial penalty imposed on the Hepler Plaintiffs by the Mandate as a cost of complying with their religious beliefs. And, as asserted above, would force the Heplers and their employees to participate in morally objectionable plans obtained in the open market by operation of the Mandate.
199. The Mandate therefore imposes a variety of substantial burdens on the religious beliefs and exercise of each of the Plaintiffs.
The Lack of a Compelling Governmental Interest and the Availability of Less Restrictive Means 200. Coercing Plaintiffs to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest. 201. The required drugs, devices, and related services to which Plaintiffs object are already widely available at non-prohibitive costs. 202. There are numerous alternative mechanisms through which the government could provide access to the objectionable drugs and services without conscripting objecting employers and their insurance plans in violation of their religious beliefs. 203. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits. 204. The government could also simply exempt all conscientiously objecting organizations, just as it has already exempted the small subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
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205. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
206. These broad exemptions further demonstrate that the government has no compelling interest in refusing to exempt organizations like the College or the Hepler Plaintiffs.
207. Employers who do not make modifications to their insurance plans that deprive the plans of “grandfathered” status may continue to use those grandfathered plans indefinitely.
208. Indeed, HHS itself has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans until at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); see also http://web.archive.org/web/ 20130620171510/http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-y ou-have-grandfathered.html (archived version); https://www.cms.gov/CCIIO/Resources/Files/ factsheet grandfather amendment.html (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”). The government has chosen to exclude entities with grandfathered health plans from the Mandate even if those entities are in every other respect identical to the Plaintiffs.
209. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling interest justifies coercing Plaintiffs to
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comply with the Final mandate, as employers may now decide not to provide employee health plans, without incurring fines under 26 U.S.C. § 4980H, at least for one additional year.
210. These broad exemptions also demonstrate that the Final Mandate is not a generally applicable law entitled to some measure of judicial deference.
211. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling available without cost sharing decreases the rate of unintended pregnancy or the adverse health or equality consequences that allegedly flow from the unintended nature of a pregnancy.
212. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for select religious organizations and a flimsy accommodation for others also shows that the Final Mandate is not neutral, but rather discriminates against certain organizations because of their religious commitment to following their faith-based convictions about the sanctity, dignity, and value of human life.
213. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose certain religious teachings and beliefs regarding marriage and family.
214. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of certain religious teachings and beliefs regarding abortion and contraception.
215. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
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216. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “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.”
217. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/about/speeches/ sp20130716.html.
218. Consequently, on information and belief, the College and the Hepler Plaintiffs allege that the purpose of the Final Mandate, including the extraordinarily narrow scope of the religious employer exemption, is to penalize and discriminate against religious organizations that oppose contraception and abortion.
FIRST CLAIM FOR RELIEF1 By Geneva College against All Defendants Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 219. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 220. Geneva College’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or
1 By omitting from this second amended complaint claims and theories that appeared in the original and first amended complaints but were dismissed under the Court’s March 6, 2013 (ECF No. 74), Plaintiffs do not waive their right to seek appellate review of those dismissals and expressly reserve their right to do so.
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facilitating a plan that causes access to the same through an insurance company or any other third party.
221. When the College complies with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, it exercises religion within the meaning of the Religious Freedom Restoration Act.
222. The Mandate substantially burdens Geneva College’s religious exercise and coerces it to violate or change its religious beliefs.
223. The Mandate chills the College’s religious exercise within the meaning of RFRA and pressures it to abandon or modify its religious convictions and religious practice.
224. The Mandate exposes the College to substantial fines and/or financial burdens for its religious exercise.
225. The Mandate exposes the College to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
226. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
227. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
228. The Mandate and Defendants’ threatened enforcement thereof violate the College’s rights protected by the Religious Freedom Restoration Act.
229. Absent injunctive and declaratory relief against application and enforcement of the Mandate, the College will suffer irreparable harm.
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SECOND CLAIM FOR RELIEF By Geneva College against All Defendants Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 230. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 231. Geneva College’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company or any other third party. 232. When the College complies with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, it exercises religion within the meaning of the Free Exercise Clause. 233. The Mandate is not neutral and is not generally applicable. 234. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 235. The Mandate furthers no compelling governmental interest. 236. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 237. The Mandate coerces the College to change or violate its religious beliefs. 238. The Mandate chills the College’s religious exercise. 239. The Mandate exposes the College to substantial fines and/or financial burdens for its religious exercise.
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240. The Mandate exposes the College to substantial competitive disadvantages, in that it makes it unclear what health benefits it can offer to its employees and what health insurance coverage it can facilitate for its students.
241. The Mandate substantially burdens the College’s religious exercise. 242. The Mandate is not narrowly tailored to any compelling governmental interest. 243. Despite being informed in detail of the religious objections of the College and thousands others, Defendants designed the Mandate and the religious exemption thereto to target the College and others like it, thereby making it impossible for the College and other similar religious organizations to comply with their religious beliefs without suffering crippling punishments. 244. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of Geneva College and others. 245. By design, Defendants framed the Mandate to apply to some religious organizations but not others, resulting in discrimination among religions. 246. The Mandate violates Geneva College’s rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF By Geneva College against All Defendants Violation of the Establishment Clause of the First Amendment to the United States Constitution 247. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 248. The First Amendment’s Establishment Clause, together with the Free Exercise Clause, prohibit the unjustified differential treatment of similarly situated religious organizations.
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More specifically, the Religion Clauses forbid government from discriminating among religious entities because of their incidental institutional structure or affiliation.
249. Geneva falls outside the scope of the Mandate’s narrow religious exemption simply because the College and the Reformed Presbyterian Church of North America decided that the College would not be an “integrated auxiliary” of the denomination.
250. Imposing the Mandate on the College simply because of this incidental structural decision violates the Establishment Clause’s ban on unjustified treatment of similarly situated religious organizations.
251. Defendants attempt to justify their narrow religious exemption from the Mandate by claiming that exempt entities (churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order) “are more likely than other employers to employ people of the same faith who share the same objection [to some or all contraceptive services], and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39,874.
252. The College’s workforce consists exclusively of those who profess faith in Christ. Accordingly, the College is “more likely than other employers to employ people . . . who share the same objection, and who would therefore be less likely than other people to use [abortifacient] services even if such services were covered under their plan.” Thus, under Defendants’ own rationale, the College should enjoy the protection of the exemption. However, it does not—primarily because it and the RPCNA elected not to structure their relationship a certain way (i.e., with the College as an “integrated auxiliary” of the
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denomination). Again, this sort of unjustified differential treatment of a religious organization because of its incidental structural choices violates the Establishment Clause.
253. The Establishment Clause also forbids government from imposing burdens on or withholding benefits from a religious organization based upon animosity towards that organization or its religiously-based positions or policies.
254. The Mandate was imposed in an attempt to discriminate against religious organizations that object to some or all contraceptives. Decision-makers in the government and among its hand-selected outside third parties imposed the Mandate based on animus towards entities with beliefs like the ones possessed by Geneva College, and bias in favor of the use of abortifacients.
255. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for select religious organizations and a flimsy accommodation for others also shows that the Final Mandate is not neutral, but rather discriminates against certain organizations because of their religious commitment to following their faith-based convictions about the sanctity, dignity, and value of human life.
256. The Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose certain religious teachings and beliefs regarding marriage, family, and the dignity of human life, including the unborn.
257. Both the inclusion of abortifacients in the list of mandate preventive services as well as the extraordinarily narrow religious exemption from the mandate reveal and reflect the insidious purpose behind the challenged regulations, which thus transgress the Establishment Clause’s restraints on government animus towards religion or particular religious ideas.
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258. The Establishment Clause, together with the Free Exercise Clause, also protects the freedom of religious organizations to decide for themselves, free from governmental interference, matters of internal governance as well as those of doctrine and practice.
259. Under the First Amendment, government may not interfere with a religious organization’s internal decisions concerning its religious structure, leadership, practice, discipline, membership, or doctrine.
260. Under the First Amendment, government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
261. The College made an internal decision, dictated by its Christian faith, that the health plans it makes available to employees and students may not include, subsidize, provide, pay for, or in any way facilitate access to abortifacient drugs, devices, or related services.
262. The Mandate interferes with the College’s internal decisions concerning its structure and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its Christian beliefs.
263. The Mandate’s interference with the College’s internal decisions affects its faith and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its religious beliefs.
264. The College also made an internal decision to not be structured as an integrated auxiliary to a church, denomination, or association of churches.
265. The Mandate’s narrow religious exemption unconstitutionally punishes the College for this structural choice, and pressures it to become an integrated auxiliary of a church or denomination in order to gain the protection of the exemption.
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266. Because the Final Mandate interferes with the College’s internal decision making in a manner that affects its faith and mission, it violates the Establishment Clause (and Free Exercise Clause) of the First Amendment.
267. Absent injunctive and declaratory relief against the Mandate, the College will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF By Geneva College against All Defendants Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 268. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 269. Defendants’ requirement that the College facilitate insurance coverage or separate payments for education and counseling regarding contraception causing abortion forces Geneva College to speak in a manner contrary to its religious beliefs. 270. The College teaches that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts its religious beliefs, convictions, and its expectations about the behavior in which members of its community engage. 271. The Mandate compels the College to facilitate expression and activities that the College teaches are inconsistent with its religious beliefs, expression, and practices. 272. The Mandate compels the College to facilitate access to government-dictated education and counseling supportive of abortion and the use of items that can cause early embryo demise. 273. The Mandate necessarily includes coverage of education and counseling in favor of the items that the College objects to covering, and when medical providers prescribing those
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items offer education and counseling they will have already decided that the patient should use the items, so the covered education and counseling will include speech in favor of the items.
274. Defendants thus violate the College’s right to be free from compelled speech, a right secured to it by the Free Speech Clause of the First Amendment.
275. The Mandate’s compelled speech requirement does not advance a compelling governmental interest.
276. Defendants’ chosen mechanism of pursuing their stated goals is not the least restrictive means reasonably available to them.
277. The Free Speech Clause also forbids government from unduly interfering with the right of expressive association without adequate justification.
278. Geneva College exists in part to communicate its religious views to various constituencies: students and their families; potential students and their families; actual and potential faculty and staff; members of the RPCNA; the Christian community at large; and society as a whole.
279. One of the religious views it communicates is that God created human beings uniquely in His image, and thus that human beings are entitled to respect and protection from the moment of conception. The College teaches that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts its religious beliefs and convictions.
280. The College fosters a community that shares a commitment to Christian doctrinal and ethical precepts, including the sanctity and dignity of human life.
281. Facilitating access to abortifacients through its employee and/or student health plans undermines the College’s ability effectively to associate around shared religious
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commitments and to convey its religiously-based messages to its various constituencies. The Mandate compels the College to facilitate expression and activities that the College teaches are inconsistent with its religious beliefs, expression, and practices, thereby undermining its effort to foster a community committed to Christian doctrinal and ethical principles.
282. No compelling interest justifies Defendants’ undue burden on the College’s ability to associate around shared religious convictions and thereby to communicate its chosen messages.
283. The Mandate thus violates Geneva College’s rights secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
284. Absent declaratory and injunctive relief, the College will suffer irreparable harm. FIFTH CLAIM FOR RELIEF
By Geneva College against All Defendants Violation of the Administrative Procedure Act 285. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 286. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 287. Defendants did not sufficiently consider or respond to the voluminous comments they received in opposition to the interim final rule. 288. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Geneva College is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
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289. Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A). Defendants attempt to justify their narrow religious exemption from the Mandate by claiming that exempt entities (churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order) “are more likely than other employers to employ people of the same faith who share the same objection [to some or all contraceptive services], and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39,874.
290. The College’s workforce consists exclusively of those who profess faith in Christ. Accordingly, the College is “more likely than other employers to employ people . . . who share the same objection, and who would therefore be less likely than other people to use [abortifacient] services even if such services were covered under their plan.” Thus, under Defendants’ own rationale, the College should enjoy the protection of the exemption. However, it does not—primarily because it and the RPCNA elected not to structure their relationship a certain way (i.e., with the College as an “integrated auxiliary” of the denomination). This differential treatment of organizations that share the same critical attribute is arbitrary and capricious.
291. The so-called “accommodation” forces third parties to initially bear the cost of abortifacient services provided to the employees of eligible organizations like the College. Neither the Affordable Care Act nor any other duly enacted law confers sufficient authority upon Defendants to impose this obligation
292. Accordingly, the Mandate’s “accommodation” is contrary to law in violation of the Administrative Procedure Act.
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SIXTH CLAIM FOR RELIEF By the Hepler Plaintiffs against All Defendants Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 293. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 294. The Hepler Plaintiffs’ sincerely held religious beliefs prohibit them from providing or participating in coverage for abortion, abortifacients, embryo-harming pharmaceuticals, contraception, sterilization and related education and counseling, or providing a plan that causes access to the same through their insurance company. 295. When the Hepler Plaintiffs comply with their sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 296. The Mandate imposes a substantial burden on the Hepler Plaintiffs’ religious exercise and coerces them to change or violate their religious beliefs. 297. The Mandate chills the Hepler Plaintiffs’ religious exercise within the meaning of RFRA. 298. The Mandate exposes the Hepler Plaintiffs to substantial fines and/or financial burdens for their religious exercise. 299. The Mandate exposes the Hepler Plaintiffs to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate. 300. The Mandate not only compels the violation of the Hepler Plaintiffs’ religious beliefs by operation against Seneca Hardwood’s and WLH Enterprises’ health plans, but also violates Mr. Hepler’s and Mrs. Kolesar’s religious beliefs to the extent they, their employees and family members are forced by practical need and/or by operation of law into an open market of
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health insurance wherein all plans they could participate in, by operation of the Mandate, will cover these religiously objectionable items not only for themselves and for others but also for their minor and college-aged children, possibly even leading their children to obtain such items through their parents’ own health plan without their knowledge or consent.
301. The Mandate exposes the individual Hepler Plaintiffs to harm to their own health insurance coverage as well as a violation of their religious beliefs not to participate in a plan that covers objectionable items for themselves or their children.
302. The Mandate also violates the rights of Wayne L. Hepler with respect to his operation of WLH Enterprises as a sole proprietor.
303. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
304. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
305. The Mandate violates RFRA.
SEVENTH CLAIM FOR RELIEF By the Hepler Plaintiffs against All Defendants Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 306. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 307. The Hepler Plaintiffs’ sincerely held religious beliefs prohibit them from providing or participating in coverage for abortion, abortifacients, embryo-harming pharmaceuticals, contraception, sterilization and related education and counseling, or providing a plan that causes access to the same through their insurance company.
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308. When the Hepler Plaintiffs comply with their sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause.
309. The Mandate is not neutral and is not generally applicable. 310. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 311. The Mandate furthers no compelling governmental interest. 312. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 313. The Mandate coerces the Hepler Plaintiffs to change or violate their religious beliefs or suffer penalties and burdens if they wish not to. 314. The Mandate chills the Hepler Plaintiffs’ religious exercise. 315. The Mandate exposes the Hepler Plaintiffs to substantial fines and/or financial and other burdens for their religious exercise. 316. The Mandate exposes the Hepler Plaintiffs to substantial competitive disadvantages for complying with their conscientious religious beliefs. 317. The Mandate not only compels the violation of the Hepler Plaintiffs’ religious beliefs by operation against Seneca Hardwood’s and WLH Enterprises’ health plans, but also violates Mr. Hepler’s and Mrs. Kolesar’s religious beliefs to the extent they, their employees and family members are forced by practical need and/or by operation of law into an open market of health insurance wherein all plans they could participate in, by operation of the Mandate, will cover these religiously objectionable items not only for themselves and for others but also for their minor and college-aged children, possibly even leading their children to obtain such items through parents’ their own health plan without their knowledge or consent.
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318. The Mandate imposes a substantial burden on the Hepler Plaintiffs’ religious exercise.
319. The Mandate also violates the rights of Wayne L. Hepler with respect to his operation of WLH Enterprises as a sole proprietor.
320. The Mandate is not narrowly tailored to any compelling governmental interest. 321. Defendants designed the Mandate and the religious exemption thereto in a way that make it impossible for the Hepler Plaintiffs and other similar individuals and entities to comply with their religious beliefs. 322. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of the Hepler Plaintiffs and others. 323. By design, Defendants framed the Mandate to apply to some religious entities and individuals but not on others, resulting in discrimination among religions. 324. The Mandate violates the Hepler Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
EIGHTH CLAIM FOR RELIEF By the Hepler Plaintiffs against All Defendants
Violation of the Establishment Clause of the First Amendment to the United States Constitution 325. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 326. The Establishment Clause forbids government from imposing burdens on or withholding benefits from a religious organization based upon animosity towards that organization or its religiously-based positions or policies. 327. The Mandate was imposed in an attempt to discriminate against organizations that object to some or all contraceptives. Decision-makers in the government and among its
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hand-selected outside third parties imposed the Mandate based on animus towards entities with beliefs like the ones possessed by the Hepler Plaintiffs, and bias in favor of the use of abortifacients.
328. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for select religious organizations and a flimsy accommodation for others also shows that the Final Mandate is not neutral, but rather discriminates against certain organizations because of their religious commitment to following their faith-based convictions about the sanctity, dignity, and value of human life.
329. The Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose certain religious teachings and beliefs regarding marriage, family, and the dignity of human life, including the unborn.
330. Both the inclusion of abortifacients in the list of mandate preventive services as well as the extraordinarily narrow religious exemption from the mandate reveal and reflect the insidious purpose behind the challenged regulations, which thus transgress the Establishment Clause’s restraints on government animus towards religion or particular religious ideas.
331. The Mandate thus violates the Hepler Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment to the United States Constitution.
NINTH CLAIM FOR RELIEF By the Hepler Plaintiffs against All Defendants Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 332. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein.
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333. Defendants’ requirement of provision of insurance coverage for education and counseling regarding abortifacients, contraception, and sterilization forces the Hepler Plaintiffs to speak in a manner contrary to their religious beliefs.
334. The Mandate necessarily includes coverage of education and counseling in favor of the items that the Hepler Plaintiffs object to covering, and when medical providers prescribing those items offer education and counseling they will have already decided that the patient should use the items, so the covered education and counseling will include speech in favor of the items.
335. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
336. The Mandate violates the Hepler Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
TENTH CLAIM FOR RELIEF By the Hepler Plaintiffs against All Defendants Violation of the Administrative Procedure Act 337. Plaintiffs reallege all matters set forth in paragraphs 1-218 and incorporate them herein. 338. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 339. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 340. Defendants issued its regulations on an interim final basis and only asked for comments thereafter. Yet Defendants signaled from regulatory text of its interim rules that it
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had no intention of considering the objections by persons such as the Hepler Plaintiffs to provide them with exemptions, or to hold the effective date of its rules after it received and considered all the comments submitted.
341. Thus Defendants imposed its rules without the required “open-mindedness” that agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the rules without prior notice and comment.
342. Therefore, Defendants have violated the notice and comment requirements of 5 U.S.C. §§ 553 (b) and (c), have taken agency action not in accordance with procedures required by law, and Geneva College is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and their insurance issuers with respect to their health insurance plans and similarly situated persons not before the Court to be a violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a permanent injunction prohibiting Defendants from continuing to apply the Mandate to the Plaintiffs and their insurance issuers with respect to their health insurance plans or in a way that violates the legally protected rights of any person, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs and others not before the Court by requiring them to provide health insurance coverage, or access to separate
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payments for contraceptives, abortifacients, and related counseling to their employees and students;
C. That this Court award Plaintiffs court costs and reasonable attorney’s fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); and
D. That this Court grant such other and further relief as to which the Plaintiffs may be entitled. Respectfully submitted this 1st day of October, 2013.

s/ Gregory S. Baylor Gregory S. Baylor
Texas Bar No. 01941500 gbaylor@alliancedefendingfreedom.org Steven H. Aden DC Bar No. 466777 saden@alliancedefendingfreedom.org Matthew S. Bowman DC Bar No. 993261 mbowman@alliancedefendingfreedom.org ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 237-3622 (facsimile) Attorneys for Plaintiffs

Bradley S. Tupi Pennsylvania Bar No. 28682 btupi@tuckerlaw.com
David J. Mongillo Pennsylvania Bar No. 309995 dmongillo@tuckerlaw.com
1500 One PPG Place Pittsburgh, PA 15222 (412) 594-5545 (412) 594-5619 (facsimile) Local Counsel for Plaintiffs

David A. Cortman Georgia Bar No. 188810 dcortman@alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) Attorney for Plaintiffs

Kevin H. Theriot Kansas Bar No. 21565 ktheriot@alliancedefendingfreedom.org
Erik W. Stanley Kansas Bar No. 24326 estanley@alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) Attorneys for Plaintiffs

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Case 2:12-cv-00207-JFC Document 98 Filed 10/18/13 Page 58 of 58 CERTIFICATE OF SERVICE
I hereby certify that on October 1, 2013 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR

)

)

Plaintiff,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the

)

United States Department of Health and Human )

Services, HILDA SOLIS

)

in her official capacity as Secretary of the

)

United States Department of Labor, TIMOTHY )

GEITHNER

)

in his official capacity as Secretary of the

)

United States Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES DEPARTMENT )

OF THE TREASURY

)

MEMORANDUM OPINION AND ORDER Presently before the court is the Motion to Dismiss Plaintiffs’ Amended Complaint (ECF No. 39) and brief in support (ECF No. 40) filed by defendants Kathleen Sebelius, Hilda Solis, Timothy Geithner, the United States Department of Health and Human Services (“HHS”), the United States Department of Labor, and the United States Department of the Treasury (collectively, “defendants”); the Response in Opposition (ECF No. 51) filed by plaintiffs Geneva College (“Geneva”), Wayne L. Hepler (“Hepler”), The Seneca Hardwood Lumber Company, Inc. (“SHLC”), WLH Enterprises (“WLH”), and Carrie E. Kolesar (“Kolesar” and together with

Geneva, Hepler, SHLC, and WLH, collectively “plaintiffs”); and defendants’ reply (ECF No. 54.) Subsequent to the filing of defendants’ motion, the court held a hearing on October 31, 2012, at which time the court heard argument and ordered the parties to submit supplemental briefing. (ECF Nos. 55 and 58.) The parties have kept the court well informed of recent decisions by other district courts and courts of appeals in similar cases around the country. The matter is now ripe for disposition, and for the reasons that follow, defendants’ motion will be GRANTED IN PART and DENIED IN PART.
The present case is one of dozens of similar lawsuits currently pending in district courts and courts of appeals throughout the country. In each case, individuals and entities, both forprofit and nonprofit, are challenging the provision of the new federal health care law requiring health insurance plans to provide coverage for certain services, which defendants assert are appropriate for women’s preventive care. Plaintiffs in this case, as discussed more fully below, are a private, nonprofit college, two for-profit entities, and individual owners of those entities. Plaintiffs object on religious grounds to being required to include coverage in their health plans for contraceptives such as ella and Plan B, sterilization procedures, and patient education and counseling for women of reproductive capacity (the “objected to services”). I. FACTUAL ALLEGATIONS DERIVED FROM THE AMENDED COMPLAINT
WHICH MUST BE TAKEN AS TRUE FOR THE PURPOSE OF RESOLVING THE MOTION TO DISMISS A. Geneva Geneva is a nonprofit institution of higher learning established in Beaver Falls, Pennsylvania in 1848 by the Reformed Presbyterian Church of North America (“RPCNA”). (ECF No. 32 ¶¶ 11, 25.) Geneva’s mission is “to glorify God by educating and ministering to a diverse community of students in order to develop servant-leaders who will transform society for
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the kingdom of Christ.” (Id. ¶ 25.) This mission is central to Geneva’s institutional identity and activities. (Id. ¶¶ 27-29.) Geneva offers a traditional liberal arts and sciences curriculum as well as student programs and services that are rooted in the Christian faith. (Id. ¶ 26.) Pursuant to its mission and goals, Geneva has historically promoted a diverse student population and has opposed institutions (such as slavery) that it finds inimical to its beliefs. (Id. ¶¶ 34-35.)
Geneva is governed by a board of corporators and a board of trustees. (Id. ¶¶ 30-31.) Members of the board of corporators must be members of the RPCNA and members of the board of trustees must be members of either the RPCNA or some other Reformed or Evangelical Christian congregation. (Id. ¶ 30-31.) Geneva’s faculty, staff and administration are drawn from among those who profess faith in Christ and who otherwise agree with the college’s Christian convictions. (Id. at ¶ 32.) Geneva does not require its students to profess a particular faith, but it does give enrollment priority to evangelical Christians and requires all students to live by standards of Christian morality. (Id. at ¶ 33.)
Geneva and the RPCNA firmly believe “that the procurement, participation in, facilitation of, or payment for abortion [including the use of what it alleges are abortion-causing drugs like Plan B and ella] violates the Commandment against murder.” (Id. ¶43.) Geneva identifies several texts, including the Ten Commandments, Scripture, the articulated statements of the RPCNA, and the Westminster Larger Catechism in support of its view that human life begins at the moment of fertilization, and that any destruction of a human life thereafter constitutes murder. (Id. ¶¶ 38-44.) Geneva’s Student Handbook expressly provides that abortion “‘will not be tolerated.’” (Id. ¶ 49.) In furtherance of its views on abortion, Geneva’s students and staff participate in a host of pro-life activities both on and off campus. (Id. ¶¶ 45-48.)
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Geneva provides health insurance to its employees and makes health insurance available to its students. (Id. ¶ 51.) Geneva’s student health plan does not enjoy “grandfathered status” 1
and its current plan year began on August 1, 2012. (Id. ¶¶ 73-74.) With respect to its employee
health plan, Geneva’s contract for coverage explicitly excludes “‘drugs used to abort a
pregnancy.’” (Id. ¶50.) At the time suit was filed, Geneva’s employee group health insurance
plan was in its 2012 plan year, which began January 1, 2012 and concluded December 31, 2012.
(Id. ¶¶ 52-53.) Geneva alleges that its current employee health plan remained grandfathered
through the end of the 2012 plan year, but fears that it will not remain so in forthcoming years
based upon financial pressures stemming from increased costs and decreased student enrollment. (Id. ¶¶ 54-57.)2
Geneva also fears that its employee health insurance plan could lose grandfathered status
when its insurer attempts to enforce the provision excluding “‘[a]ny drugs used to abort a
pregnancy.’” (Id. ¶ 58.) This concern arose when Geneva learned that its employee health plan
allegedly provided ulipristal (“ella”), levonorgestral (“Plan B”), and intrauterine devices
(“IUDs”) in the past without its knowledge. (Id.) Geneva instructed its insurer to stop providing
these items on the grounds that they “can abort the pregnancy of an embryo after fertilization.”
(Id.) The insurer allegedly indicated that it would remove the coverage at some point during the
2012 calendar and plan year. (Id.) Geneva alleges that the rules promulgated by defendants (as
explained in detail below) make it difficult to determine whether any changes to its employee
health plan with respect to ella, Plan B, and IUDs will cause it to lose its grandfathered status.
1 Grandfathered status is defined in 45 C.F.R. § 147.140; 26 C.F.R. § 54.9815-125T; and 29 C.F.R. § 2590.7151251, and provides that such plans do not have to provide coverage without cost sharing of “preventive health services,” which plaintiffs allege includes “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” (ECF No. 32 ¶ 53.) 2 If Geneva’s health plan loses its grandfathered status, Geneva alleges that it will be forced to “violate its conscience” by having to provide insurance coverage for the objected to services in violation of its religious beliefs. (Id. ¶¶ 54-55.)
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(Id. ¶¶ 59-63.) Geneva alleges, therefore, that the elimination of ella, Plan B, and IUDs from its health plan coverage will result in a loss of grandfathered status. (Id. ¶¶ 64-68.)3
B. The Heplers and SHLC Hepler and his family (which includes Kolesar) (collectively the “Heplers”), are practicing Catholics who strive to follow Catholic beliefs and teachings in all areas of their lives, including the operation of their businesses. (Id. ¶¶ 75-77.) The Heplers have pursued this goal by building a chapel on their business premises, displaying religious imagery in their business, making charitable donations to Catholic causes, and providing health insurance to their families and Catholic employees consistent with their beliefs. (Id. ¶¶ 82-85.) The Heplers participate extensively in both Catholic and pro-life activities. (Id. ¶¶ 86-88.) Hepler and his thirteen children allege that they are committed to the Catholic church’s teachings on human life and sexuality, including the church’s position against abortifacients, contraceptives, and sterilization. (Id. ¶ 88.) SHLC is owned and directed by Hepler, Kolesar, and six of Kolesar’s adult siblings. (Id. ¶ 89.) Hepler owns a 58% share of SHLC and Kolesar and her six adult siblings each own a 6% share. (Id.) SHLC has twenty-two full-time employees, nineteen of whom (including Hepler and Kolesar’s husband) are covered by the company’s health insurance plan. (Id. ¶ 90.) Hepler also owns and operates a sawmill as the sole proprietorship WLH, which has six full-time employees, five of whom are covered under SHLC’s health insurance plan. (Id. ¶ 91.) Like Geneva, the Heplers allege that their sincerely held religious beliefs prohibit them from intentionally participating in, paying for, facilitating, or otherwise supporting the use of
3 In supplemental briefing filed November 14, 2012, defendants concede that Geneva will likely lose its grandfathered status based upon future plan changes. (ECF No. 55 at 3.) For purposes of this discussion, therefore, the court concludes that Geneva’s employee health plan will not retain grandfathered status.
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abortifacient drugs, contraception, sterilization, and related education and counseling through the health insurance coverage that SHLC provides their families and employees. (Id. ¶¶ 77-82.) The SHLC health insurance plan is currently in its July 2012 plan year, and will begin its next plan year on July 1, 2013. (Id. ¶ 98.) Plaintiffs allege that SHLC’s health insurance plan does not have grandfathered status. (Id. ¶ 97.) Pursuant to the Heplers’ stated beliefs, SHLC’s health insurance plan currently does not cover abortifacients, contraceptives and sterilization, and has not done so for several years. (Id. ¶¶ 94-99.) Hepler, Kolesar, SHLC and WLH allege that defendants’ requirement that SHLC’s nongrandfathered health plan provide coverage for the objected to services will force them to purchase a health plan that offers coverage for those services beginning in July 2013. (Id. ¶ 100.) II. THE RELEVANT STATUTES AND REGULATIONS CONCERNING THE
OBJECTED TO SERVICES A. The Patient Protection and Affordable Care Act of 2010 On March 23, 2010, the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (“ACA”) became law and an overhaul of the nation’s healthcare system began. Section 1001 of the ACA includes specific measures related to preventive care for women, and provides in part: (a) In general A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
* * * (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [“HRSA”] for purposes of this paragraph.
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42 U.S.C. § 300gg-13 (the “preventive care provision”). Because the ACA did not specifically
identify which preventive care services would have to be provided without cost sharing, further
rulemaking was necessary.
B. Preventive Care Services and Interim Final Regulations
On July 19, 2010, defendants (the Departments of Health and Human Services, Labor,
and Treasury) issued interim final regulations implementing the preventive care provision.
Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA, (the “first interim final regulations”), 75 FED. REG. 41,726
(Jul. 19, 2010). The first interim final regulations require all group health plans and health insurance issuers offering nongrandfathered4 group or individual health coverage to cover,
without cost sharing, the preventive care services outlined in 42 U.S.C. § 300gg-13. Id. at
41,728. The first interim final regulations directed the Department of Health and Human
Services, in conjunction with the Institute of Medicine (“IOM”) to determine what preventive
services are necessary and beneficial for women’s health and well-being. Id. The IOM was to
report its findings to the Health Resources and Services Administration (“HRSA”), which was to issue the necessary guidelines. The report issued by the IOM5 on July 19, 2011 recommended
that the HRSA guidelines include, inter alia: “[t]he full range of Food and Drug Administration
[(“FDA”)]-approved contraceptive methods, sterilization procedures, and patient education and
counseling for women with reproductive capacity.” IOM Report at 10. FDA-approved
4 The preventive services provisions do not apply to health plans that are grandfathered. A plan is grandfathered if: (1) at least one person was enrolled on March 23, 2010; (2) the plan continuously covered at least one individual since that date; (3) the plan provides annual notice of its grandfathered status; and (4) the plan has not been subject to significant changes as outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.9815-1251T(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§ 147.140(a), (g). 5 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx (Last visited Feb. 21, 2013) (“IOM Report”).
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contraceptive methods include the objected to services, such as the drugs ella and Plan B, as well as IUDs.
C. HRSA Guidelines On August 1, 2011, HRSA adopted guidelines pursuant to the IOM recommendations6 and on August 3, 2011, again issued interim final regulations (the “second interim final regulations”). Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 FED. REG. 46,621 (Aug. 3, 2011). The second interim final regulations carve out an exemption allowing certain religious employers to avoid providing insurance coverage for the objected to services. 76 FED. REG. at 46,626 (codified at 45 C.F.R. § 147.130(a)(1)(iv)(B)). The exemption defines religious organizations as those employers that meet the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. The sections of the Internal Revenue Code cited in subsection (4) define nonprofit organizations as “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the exclusively religious activities of any religious order” that are exempt from taxation pursuant to 26 U.S.C. § 501(a). D. Temporary Enforcement Safe Harbor Provision
6 The HRSA guidelines are available at http://www.hrsa.gov/womensguidelines/ (last visited Feb. 21, 2013).
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After allowing the public and interested groups to comment on the second interim final
regulations, defendants adopted the definition of religious employer contained in those
regulations without change on February 15, 2012. Group Health Plans and Health Issuers
Relating to Coverage of Preventive Services Under the ACA, 77 FED. REG. 8,725, 8,727-28
(Feb. 15, 2012). The adopted final regulations (the “final regulations”) contain a temporary
enforcement safe harbor provision for nongrandfathered plans that do not qualify for the
religious employer exemption. Id. HHS issued supplemental guidance (“HHS Guidance”) with respect to the safe harbor provision.7 The safe harbor provision provides that defendants will not
take any enforcement action against an employer, a group health plan, or a group health
insurance issuer with respect to nonexempt, nongrandfathered group health plans that fail to
cover some or all of the recommended preventive services “until the first plan year that begins on
or after August 1, 2013.” HHS Guidance, at 3. To qualify for the safe harbor provision, an
organization must meet the following criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
(3) . . . [T]he group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
7 HHS, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf (last visited Feb. 21, 2013).
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(4) The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed [elsewhere in the HHS Guidance]. HHS Guidance, at 3. A similar safe harbor provision also applies to student health insurance coverage provided by nonprofit institutions of higher education that satisfy similar criteria. 77 FED REG. at 16,504. E. Advance Notice of Proposed Rulemaking Following the adoption of the final regulations and the HHS Guidance in February 2012, defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) on March 21, 2012. Certain Preventive Services Under the ACA, 77 FED. REG. 16,501 (Mar. 21, 2012). The ANPRM seeks additional public comments and sets forth “questions and ideas” on how to best provide women with access to contraceptive services without cost-sharing, while accommodating the religious liberty concerns articulated by nonexempt religious organizations. Id. at 16,503. By its own terms, the ANPRM aims to “protect . . . religious organizations from having to contract, arrange, or pay for contraceptive coverage.” Id. The ANPRM provided a ninety-day comment period ending June 19, 2012. Id. F. Updated Guidance The HHS updated its guidance bulletin (the “Updated HHS Guidance”) on August 15, 2012 by clarifying three points: “(1) that the safe harbor is also available to non-profit organizations with religious objections to some but not all contraceptive coverage . . .; (2) that group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . .; and (3) that the safe harbor may be invoked without prejudice by non-profit
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organizations that are uncertain whether they qualify for the religious employer exemption.”8 The safe harbor is aimed at providing an additional year—until the first plan year beginning on or after August 1, 2013—for health plans and health insurance issuers to comply with the preventive care requirement. Updated HHS Guidance at 3.
G. Proposed Rules On February 6, 2013, defendants issued proposed rules (the “proposed rules”) broadening the universe of organizations eligible for an exemption from the contraceptive requirement. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 FED. REG. 8,456, 8,462 (Feb. 6, 2013). In the proposed rules, defendants proposed an accommodation for religious organizations that object to providing contraceptive coverage, including religious institutions of higher education. The proposed rules exclude from the contraceptive requirement those organizations that meet certain criteria: (1) “The organization opposes providing coverage for some or all of the contraceptive services required to be covered under [the final regulations] on account of religious objections;” (2) “The organization is organized and operates as a nonprofit entity;” (3) “The organization holds itself out as a religious organization;” and (4) “The organization self-certifies that it satisfies the first three criteria. 78 FED. REG. at 8,462. In an effort to also accommodate those plan beneficiaries who may not share the beliefs of the organizations claiming the accommodation, the proposed rules also set forth proposed ways “to provide women with contraceptive coverage without cost sharing and to protect eligible organizations from having to contract, arrange, pay, or refer for contraceptive coverage to which they object on religious grounds.” Id. at 8,462-64.
8 Department of Health and Human Services, Revised Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at n.1, available at http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Feb. 21, 2013) (“updated HHS Guidance”).
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III. CLAIMS PRESENTED IN THE AMENDED COMPLAINT A. Substantial Burdens Plaintiffs allege that the statutory scheme outlined above violates their religious beliefs
by requiring them to provide coverage for the objected to services. (ECF No. 32 ¶ 110-11.) Consequently, Geneva (as a large employer) will allegedly be burdened by potentially being subject to fines or monetary penalties of at least $500,000 per year if it fails to include insurance coverage for the objected to services or, in the alternative, if it ceases to provide health insurance. (Id. ¶¶ 112-16.) Plaintiffs also allege that the Heplers, SHLC, and WLH are being forced to choose between providing health insurance that is inconsistent with their beliefs or providing no insurance at all, a choice that puts them at a competitive disadvantage and forces their employees to purchase health insurance, which includes coverage for the objected to services, on their own. (Id. ¶¶ 116-22.) Plaintiffs allege that the requirement to provide health insurance coverage for the objected to services (what plaintiffs refer to generally as the “mandate”) imposes substantial burdens on their religious beliefs, and that they are unable to avoid such burdens by self-insuring. (Id. ¶¶ 124-126.) Plaintiffs allege that they are not eligible for the religious employer exemption provided in the HRSA Guidelines, 76 FED. REG. at 46,626, because it is unclear how defendants will interpret or determine each of the requirements. (ECF No. 32 ¶¶ 127-39.)9
Based upon the uncertainty, plaintiffs allege several hardships that will be incurred as a result of the mandate. Geneva alleges that it would have to change its religious affiliation, admissions, employment, and service programs to fall within the scope of the mandate’s religious employer exemption. (Id. ¶ 140.) Geneva also alleges that the mandate would burden its
9 It must be noted that Geneva’s claims were asserted prior to the issuance of the February 2013 proposed rules.
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employee and student recruitment and retention efforts by making health insurance coverage uncertain. (Id. ¶¶ 146-47.) Plaintiffs allege that the mandate fails to protect their statutory and constitutional rights to not provide or facilitate the provision of the objected to services. (Id. ¶ 141-43.) Plaintiffs assert that the mandate impermissibly coerces them to provide coverage for the objected to services in violation of their sincerely held religious beliefs, lest they be subject to substantial fines. (Id. ¶¶ 144-45, 148-52.)
B. The Mandate’s Applicability Plaintiffs allege that the mandate does not apply equally to all members of religious groups because it provides for numerous exemptions, and therefore the ACA is not a law of general applicability. (Id. ¶¶ 153-57.) According to plaintiffs, the offer of compromise10 made by President Obama in a press conference on February 12, 2012 does not apply to Geneva because the offer is not contained in any rule or guidance made final by defendants; and does not apply to the Heplers, SHLC, and WLH because they are not nonprofit organizations. (Id. ¶¶ 158-60.) Geneva asserts that it is subject to the mandate’s requirement that its health insurance plans provide coverage for the objected to services beginning in its January 2013 plan year. (Id. ¶ 163.) Geneva disputes whether its employee health plan will maintain its grandfathered status when its insurer removes abortifacients from its coverage during this plan year. (Id. ¶ 165.) Geneva alleges that even if its employee health plan retains grandfathered status, maintaining that status will cause it substantial harm by preventing it from making any necessary changes to that plan in response to changing financial conditions. (Id. ¶¶ 165-69.) This uncertainty regarding grandfathered status will allegedly make it difficult for Geneva to know whether, and on what
10 The compromise allegedly would allow religious nonprofit organizations to comply with the mandate by requiring their insurers to provide the preventive services coverage for “free.” (ECF No. 32 ¶ 158.)
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terms, it may offer health insurance, and will require it to plan for its employees’ health insurance needs without certainty about the law. (Id. ¶¶ 170-71.)
Geneva disputes that it can comply with the HHS Guidance regarding the temporary safe harbor, because it cannot self-certify that it “did not offer non-abortifacient contraception and sterilization after February 10, 2012.” (Id. ¶ 174.) Even if Geneva could avoid any burden based upon the safe harbor, it alleges that it will still be harmed for several reasons: (1) the HHS Guidance is vague, so Geneva may still not qualify; (2) the safe harbor provision can be revoked at any time; (3) at the end of the extension, the mandate will still apply; and (4) even if the safe harbor applied, its effect would still leave Geneva in violation of the mandate, despite defendants’ promise not to enforce it. (Id. ¶ 175.) Because the February 2013 proposed rules were issued after the parties filed their briefs, neither defendants nor Geneva addressed their impact. The Heplers, SHLC, and WLH allege that the safe harbor does not apply to them because SHLC and WLH, the employers, are for-profit entities. (Id. ¶ 176.)
C. Claims for Relief Based upon the above allegations, plaintiffs seek declaratory and injunctive relief with respect to twelve claims for relief. Counts I through VI are claims asserted by Geneva: count I alleges a violation of the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (“RFRA”); count II alleges a violation of the Free Exercise Clause of the First Amendment; count III alleges a violation of the Establishment Clause of the First Amendment; count IV alleges a violation of the Free Speech Clause of the First Amendment; count V alleges a violation of the Due Process Clause of the Fifth Amendment; and count VI alleges a violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq. Counts VII through XII
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allege the same violations as Counts I through VI, with respect to Hepler, Kolesar, SHLC, and WLH. IV. MOTION TO DISMISS STANDARD
A. Lack of Justiciability Based Upon Standing or Ripeness Claims must be dismissed if the plaintiff lacks standing to assert them or if the claims are not ripe. The standing doctrine requires plaintiffs to show a valid “case or controversy” exists as required by Article III and imposes a constitutional limit on who may bring suit. The Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000). To establish standing, plaintiffs must plead that they have: (1) suffered an injury-in-fact; (2) that is fairly traceable to defendant’s challenged actions; and (3) that is likely redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The United States Supreme Court in Lujan defined the injury-in-fact requirement as “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical.’’” Id. at 560. An alleged injury must be “‘certainly impending’ to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (citing Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). The “underlying purpose of the imminence requirement is to ensure that the court in which suit is brought does not render an advisory opinion in ‘a case in which no injury would have occurred at all.’” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). In Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), the United States Supreme Court set forth the two fundamental considerations in determining ripeness: (1) “the fitness of the issues for judicial decision;” and (2) “the hardship to the parties of withholding court consideration.” 387 U.S. at 149. In the context of a pre-enforcement declaratory judgment action,
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the Court of Appeals for the Third Circuit refined the Abbott Laboratories test, requiring courts to consider: (1) the adversity of the parties’ interests; (2) the conclusiveness of the judgment with respect to the legal relationship between the parties; and (3) the practical help or utility of the judgment. Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 647 (3d Cir. 1990).
B. Failure to State a Claim A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.. . . Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
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Id. at 1949) (quoting Twombly, 550 U.S. at 556) (internal citations omitted). Two working principles underlie Twombly. Id. First, with respect to mere conclusory
statements, a court need not accept as true all the allegations contained in a complaint. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 1950. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (citing 490 F.3d at 157-58). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]- that the pleader is entitled to relief.”’ Id. (quoting Fed. Rule Civ. Proc. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions.
While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. If further amendment of the complaint “would fail to state a claim upon which relief could be granted,” then amendment would be futile and the plaintiff’s claim must be dismissed with prejudice. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). V. DISCUSSION
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A. Geneva’s Claims - Justiciability
1. Standing
Defendants challenge this court’s jurisdiction to hear Geneva’s claims pursuant to the justiciability doctrine of standing;11 and maintain that Geneva is eligible for the nonenforcement
safe harbor provision, which will shield it from the objected to requirements until at least August
1, 2013. Defendants also point to the ANPRM as evidence that Geneva will almost certainly
never be subject to the mandate. Geneva responds that the safe harbor and ANPRM are not
sufficient guarantees to deprive it of standing, particularly in light of the relaxed standing
requirement applied in cases implicating the First Amendment. Geneva argues that it is currently
suffering injury-in-fact as it faces uncertainty in preparation and substantial planning costs for
upcoming plan years. Defendants’ motion challenges Geneva’s claims on the basis of standing
due to an alleged lack of injury in fact.
a. The Safe Harbor Provision and Imminent Injury
Defendants rely principally on McConnell v. Federal Election Commission, 540 U.S. 93,
226 (2003), overruled on other grounds by Citizens United v. Federal Election Commission, 558
U.S. 310 (2010), to support their claim that enforcement of the mandate is “too remote
temporally” to constitute an imminent injury. McConnell, however, involved a situation in which
the challenged policy would, if at all, only be enforced five years in the future. Id. Even under the safe harbor provision,12 Geneva’s health plans will now both be subject to the mandate in its
11 Defendants initially sought dismissal of Hepler’s, Kolesar’s, SHLC’s, and WLH’s claims based upon standing and ripeness grounds, arguing that SHLC’s health plan enjoys grandfathered status. (ECF No. 40 at 27-28.) Defendants, however, subsequently acknowledged that SHLC’s plan is no longer grandfathered. (ECF No. 54 at 11 n.1.) Defendants also acknowledged that Geneva’s employee health plan will also lose its grandfathered status in the upcoming plan year. (ECF No. 55 at 2.) 12 Geneva no longer appears to maintain that it is not subject to the safe harbor provision, as set forth in the Updated HHS Guidance. A reading of that guidance indicates that despite the fact that Geneva’s employee health plan did provide some contraceptives in the past, it can still claim protection under the safe harbor provision. See Updated
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present form in less than a year. Its student health plan will be subject to the mandate’s requirements on August 1, 2013, and its employee health plan will be subject to those requirements on January 1, 2014. This time frame does not strike the court as being “too remote temporally” to circumvent the imminent injury requirement.
Plaintiffs point to several court decisions in support of their imminent injury argument. Most persuasive is Florida ex rel. Attorney General v. United States Department of Health and Human Services, 648 F.3d 1235, 1243 (11th Cir. 2011), overruled on other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), in which the defendants (the same departments and individuals as in the present case) conceded that a delay of more than two years constituted imminent harm for standing purposes. In Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25, 35 (2012), the United States District Court for the District of Columbia found that “the safe harbor merely delays enforcement by one year; it does not (in and of itself) reduce the certainty of the impending injury.” Id. Pursuant to the reasoning set forth in Belmont Abbey, and the concession by defendants in this case, Geneva alleged an injury that is not too remote to preclude standing.
b. The ANPRM and Certainly Impending Injury Although Geneva established that an injury may be imminent, the standing doctrine also requires that that injury be concrete and certainly impending. Defendants point to the ANPRM to support their claim that “there is no reason to suspect that Geneva will be required to sponsor a health plan that covers certain contraceptive services in contravention of its religious beliefs once the enforcement safe harbor expires. And any suggestion to the contrary is entirely speculative
HHS Guidance, at 1 n.1 (indicating that the safe harbor extends to those organizations with religious objections to the mandate “(2) that [have] group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor”).
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at this point.” (ECF No. 40 at 17) (emphasis added). Geneva responds that the mandate is the current law, notwithstanding defendants’ assurances that its requirements will eventually be changed. Geneva alleges that it is suffering current harm with respect to its need to prepare for future plan years, the financial costs associated with planning, and its current difficulties in recruiting employees and students due to the uncertainty surrounding its health insurance.
c. Other Decisions Addressing the Same Standing Arguments At least two courts, including one court of appeals that reviewed the lower court decisions in Belmont Abbey, 878 F. Supp. 2d at 36-37 (finding that religiously-affiliated college lacked standing), and Wheaton College v. Sebelius, No. 12-1169, 2012 WL 3637162, at *4-7 (D. D.C. Aug. 24, 2012) (finding that religiously-affiliated college lacked standing despite allegations that the college could face ERISA lawsuits over contraceptive coverage), rejected the same arguments raised by defendants and found that religiously-affiliated institutions had standing in similar circumstances. See Wheaton College v. Sebelius, 703 F.3d 551, 552-53 (D.C. Cir. 2012) (holding the appeals in Wheaton College and Belmont Abbey in abeyance and finding that both institutions “clearly had standing” at the time the suits were filed); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-2542, 2012 WL 6042864, at *19-20 (E.D. N.Y. Dec. 4, 2012) (finding that a nonprofit religious organization had adequately pled a certainly impending injury based upon specific allegations of preparation costs and how funds were reallocated because of the contraceptive requirement); but see Univ. of Notre Dame v. Sebelius, No. 12253, 2012 WL 6756332, at *4 (N.D. Ind. Dec. 31, 2012) (finding that religiously-affiliated university lacked standing despite allegations that the safe harbor period did not provide sufficient planning time); Zubik v. Sebelius, No. 12-0676, 2012 WL 5932977, at *11 (W.D. Pa. Nov. 27, 2012) (finding that nonprofit religious organizations lacked standing despite allegations
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that the safe harbor period did not provide sufficient planning time, and that the organizations would be unable to enter into union negotiations, set tuition rates, and make teacher retention decisions).
d. Standing Determined at Time Suit Filed Standing is determined based upon “the facts of the case as they existed at the time the lawsuit was filed.” Clark v. McDonald’s Corp., 213 F.R.D. 198, 227 (D. N.J. 2003) (citing Lujan, 504 U.S. at 570 n.4). Standing is distinguishable from mootness and ripeness, both of which can strip a court of jurisdiction after a case has already been filed. The subsequent events and assurances upon which defendants heavily rely, therefore, do not remove Geneva’s standing as measured at the time this case was filed in February 2012. Viewing Geneva’s claim of standing as of the date the suit was originally filed, it becomes clear that it acted in response to an injury that was imminent and almost certain to occur. In the amended complaint, Geneva acknowledges that its health care plans will likely lose their grandfathered status beginning in the present plan year, and will thus be subject to the ACA’s requirements. (ECF No. 32 ¶¶ 57-68, 73.) As an employer of more than fifty full-time employees, Geneva must provide health insurance that includes coverage for the objected to requirements. (Id. ¶ 101.) If Geneva fails to provide such coverage, it will be subject to financial penalties of at least $500,000 per year. (Id. ¶ 112-15.) Geneva alleges that the religious employer exemption is inapplicable to it as an organization that does not primarily serve those of its own faith or inculcate religious values. (Id. 127-29.) Geneva acknowledges that it was not eligible for the temporary enforcement safe harbor as of the time the suit was filed, since the original HHS Guidance did not exempt organizations like Geneva that had provided contraceptive coverage. (Id. ¶ 174.)
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In addition to claims of future harm, Geneva alleges several current injuries that it
believes are sufficient to establish standing, and relies on Lac Du Flambeau Band of Lake
Superior Chippewa Indians v. Norton, 422 F.3d 490 (7th Cir. 2005), to support its argument that
“the present impact of a future though uncertain harm may establish injury in fact for standing
purposes.” Id. at 498. Geneva alleges that it requires substantial lead time to prepare for future
health care plan years (ECF No. 32 ¶¶ 56-57, 171); that it is suffering monetary harm in planning
for the contraceptive requirement (Id. ¶ 180); and that its employee and student recruitment
efforts have been burdened as a result of uncertainty surrounding its health care plans (Id. ¶¶
146-47). In support of its argument, Geneva notes that defendants have acknowledged the
importance of planning with respect to future health insurance plan years. 75 FED. REG. at 41,730
(noting that “requirements in these interim final regulations require significant lead time in order
to implement”). Courts have held that suffering monetary harm is sufficient to constitute injury-
in-fact for standing purposes, and that “injury-in-fact is not Mount Everest.” Danvers Motor Co.,
Inc. v. Ford Motor Co., 432 F.3d 286, 293-94 (3d Cir. 2005). The Supreme Court has also
acknowledged that burdens on recruitment efforts are sufficient to give rise to standing. Pierce v.
Soc’y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 536 (1925).
Considering the circumstances that existed at the time Geneva filed suit, it is apparent that
Geneva “clearly had standing” at that time. See Wheaton College v. Sebelius, 703 F.3d at 552. 2. Ripeness13
13 It is possible that the February 2013 proposed rules may render Geneva’s claims moot when they become final. Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (finding that “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”). With respect to mootness, a court’s “decisions are concerned in large part with the determination whether any effective purpose can still be served by a specific remedy.” 13B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER, RICHARD D. FREER, JOAN E. STEINMAN, CATHERINE T. STRUVE, & VIKRAM DAVID AMAR, FEDERAL PRACTICE AND PROCEDURE § 3533.1 (3d ed. 2008). Mootness deprives the court of its ability to act because “‘the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome’”
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Geneva must also establish that its claims are presently ripe for judicial review. Ripeness “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies,” and “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967)). Underpinning the ripeness doctrine are considerations of “whether the facts of the case are ‘sufficiently developed to provide the court with enough information on which to decide the matter conclusively,’ and whether a party is ‘genuinely aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to no one.’” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (citing Peachlum v. City of York, Pa., 333 F.3d 429, 433-34 (3d Cir. 2003)). Unlike standing which is determined as of the time the case commenced, ripeness may consider events which have occurred after the filing of the complaint. See Buckley v. Valeo, 424 U.S. 1, 114-17 (1976)
Geneva acknowledges that Step-Saver provides the appropriate test for ripeness in this case, but it urges the court to apply a “relaxed standard” to their claims because they present a facial challenge involving First Amendment rights. (ECF No. 51 at 14) (citing Peachlum, 333 F.3d at 435). The proposed standard aims to quell concerns that “a person will merely comply with an illegitimate statute rather than be subjected to prosecution.” Peachlum, 333 F.3d at 435. Geneva’s argument was raised in Persico v. Sebelius, No. 12-123, 2013 WL 228200, at *10-11
City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quoting Cnty. Of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Once intervening circumstances eliminate the “case or controversy” requirement, the case becomes moot and a court may no longer decide it. DeFunis v. Odegaard, 416 U.S. 312, 315-17 (1974). Because the proposed rules are not yet finalized and published in the Code of Federal Regulations, the court must address the justiciability of Geneva’s claims pursuant to the doctrine of ripeness and not mootness.
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(W.D. Pa. Jan. 22, 2013), and the court found Peachlum to be inapplicable to challenges to the
mandate for three reasons.
First, the plaintiffs in Persico (a Catholic Bishop and the Roman Catholic Diocese of
Erie, Pennsylvania) did not assert a facial challenge to the mandate; rather, they challenged the
law as applied. Id. at *10 (acknowledging that a law may be facially challenged on grounds that
the law is impermissibly overbroad). Second, Peachlum was inapposite to the plaintiffs’
situation. In Peachlum, the court recognized a relaxed ripeness standard in situations where
“even the remotest threat of prosecution” exists. Peachlum, 333 F.3d at 435. The relaxed
standard did not apply, however, to cases where there is “a promise not to prosecute.” Id. In
Persico, the government repeatedly offered its assurances that the ongoing regulatory process
ensured that the law would almost certainly never be enforced against the plaintiffs. Persico, 2013 WL 228200, at *12.14 These assurances were “effectively a promise . . . by the Defendants
not to prosecute the Mandate in its current form.” Id. at *11. Finally, that case did not present the
same situation as in Peachlum, where the issues were “predominantly legal,” and required no
further factual development. Those same reasons are arguably applicable to Geneva’s situation
and as further discussed below, the legal landscape faced by Geneva changed after this case was
filed. Under the February 2013 proposed rules, Geneva may be exempted from compliance in
the near future. Under these circumstances, the relaxed standard does not apply.
14 In their moving papers, defendants acknowledge that “[i]n light of the forthcoming amendments, . . . there is no reason to suspect that Geneva will be required to sponsor a health plan that covers certain contraceptive services in contravention of its religious beliefs once the enforcement safe harbor expires.” (ECF No. 40 at 17) (emphasis added). Defendants acknowledge that “the issue here is not just that the regulations will not be enforced against Geneva right away, but that these regulations almost certainly will never be enforced against Geneva” and note that the law is “virtually certain to change.” (ECF No. 54 at 2-3) (emphasis added). Finally, defendants acknowledge “in the context of this litigation and elsewhere . . . defendants will never enforce the regulations in their current form against entities like [Geneva].” (ECF No. 60 at 2, n.3) (collecting voluminous examples of the assurances provided by defendants and others in the executive branch (including President Obama) that entities like Geneva will not have to pay for the preventive care services as required in the ACA) (emphasis added).
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a. Adversity of Interest To satisfy the first prong of the Step-Saver framework, “the party seeking review need not have suffered a ‘completed harm’ to establish adversity of interest . . . it is necessary that there be a substantial threat of real harm and that the threat ‘must remain ‘real and immediate’ throughout the course of the litigation.’” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463 (3d Cir. 1994) (internal citations omitted) (emphasis added). “[A] potential harm that is ‘contingent’ on a future event occurring will likely not satisfy this prong of the ripeness test.” Pittsburgh Mack Sales & Serv. v. Int’l Union of Operating Engineers, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009) (citing Step-Saver, 912 F.2d at 647-48). If a subsequent event removes the potential harm, then the controversy becomes speculative and the claim is no longer ripe. Zubik, 2012 WL 5932977, at *7 (citing Presbytery of N.J., 40 F.3d at 1463). Geneva maintains that its position is sufficiently adverse because it is challenging the law as it currently stands. (ECF No. 51 at 15-16.) It argues that the only remaining question is whether defendants will follow through on their promises to change the regulations. While Geneva is correct that the regulations embodying the mandate are final, and that “weighs in favor of justiciability,” Nebraska v. United States Dep’t of Health and Human Services, 877 F. Supp. 2d 777, 801 (D. Neb. 2012), those regulations are interim and defendants are taking substantial steps to exempt entities like Geneva from the mandate’s requirements. Put differently, Geneva’s concerns are based on a contingency that will be eliminated if the February 2013 proposed rules are finalized in the regulations. Defendants insist that the mandate as it currently stands will never be enforced against institutions similar to Geneva. The temporary enforcement safe harbor already precludes
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enforcement of the mandate until at least August 1, 2013 for Geneva’s student health plan and January 1, 2014 for its employee plan. The February 2013 proposed rules go further and if they become final would exempt Geneva from having to include the coverage for the objected to services in its health plans. 78 FED. REG. at 8,462. Geneva appears to come within the requirements for exemption in the proposed rules. First, Geneva vigorously opposes provision of coverage for the objected to services on religious grounds, (ECF No. 32 ¶ 43); second, Geneva operates as a nonprofit entity, (Id. ¶ 11); and finally, Geneva holds itself out as a religious organization, as evidenced by its mission, which is “to glorify God by educating and ministering to a diverse community of students in order to develop servant-leaders who will transform society for the kingdom of Christ.” (Id. ¶ 25.) The proposed rules appear to exempt institutions like Geneva from the mandate—provided Geneva complies with the fourth requirement for exemption, self-certifying that it meets the first three requirements.
When an agency expressly assures that it will not enforce regulations against a party, there is no adversity of interest. Salvation Army v. Dep’t of Cmty. Affairs of State of N.J., 919 F.2d 183, 192-93 (3d Cir. 1990). Here, the proposed rules appear to exempt Geneva from complying with the mandate and, if they become final, will eliminate any remaining adversity of interest. Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) (finding a claim unripe when “the possibility that further consideration will actually occur before [the regulation] is implemented is not theoretical, but real”).
This conclusion comports with the findings of the majority of courts which addressed this issue in the context of religiously-affiliated colleges and universities. See Persico, 2013 WL 228200, at *13 (collecting cases). One court which found that a religious organization’s claims were ripe, Roman Catholic Archdiocese of N.Y., 2012 WL 6042864, at *23, did not have before
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it the February 2013 proposed rules that if adopted should ensure that “defendants will never enforce the regulations in their current form against [Geneva].” (ECF No. 60 at 5.) Based upon the most recent developments, this court, like the Court of Appeals for the District of Columbia Circuit in Wheaton College, will “take the government at its word” that it will, in good faith, finalize the proposed rules before the expiration of the safe harbor period—meaning prior to August 2013.15 703 F.3d at 552. The court concludes that Geneva’s claims, even though ripe when this case was filed, are not ripe now due to an insufficient adversity of interest.
b. Conclusiveness of Judgment The conclusiveness inquiry requires the court to determine whether there is a “‘real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical set of facts.’” Step-Saver, 912 F.2d at 649 (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937)). Without such consideration, a declaratory judgment becomes nothing more than a contingency itself, and “applying it to actual controversies which subsequently arise would be an ‘exercise in futility.’” Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 412 (3d Cir. 1992) (citing StepSaver 912 F.2d at 648). Geneva argues that the appropriate inquiry with respect to conclusiveness is whether its claims are “predominantly legal.” (ECF No. 51 at 16-17) (citing Presbytery of N.J., 40 F.3d at 1463-64.) It notes that the factual record in this case, like most First Amendment cases, is largely undisputed. Geneva points out that government agencies cannot avoid review by simply holding out the possibility of regulatory change. (ECF No. 51 at 18) (citing CSI Aviation Services, Inc. v.
15 If the court’s understanding about the impact of the February 2013 proposed rules on Geneva’s statutory and constitutional rights is incorrect or if the proposed rules are not timely finalized, Geneva should file a motion for reconsideration.
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United States Dept. of Transp., 637 F.3d 408, 410 (D.C. Cir. 2011) (rejecting a “trust us—we’ll fix it later” approach to rulemaking)). There, however, is an active rulemaking process underway at this time that will likely moot Geneva’s claims.
Defendants are taking concrete steps to ensure that the law will be changed to reflect the concerns expressed by Geneva and other nonprofit entities that are similarly situated. Those procedures are expected to be concluded before the expiration of the safe harbor period. Geneva’s contention that the mandate’s requirements are “final rules” was made without the benefit of the proposed rules and ignores the nature of the second interim final regulations. See Colo. Christian Univ., No. 11-3350, 2013 WL 93188 at *7, n.9 (D. Colo. Jan. 7, 2013). In Colorado Christian University the court pointed out that “Defendants only finalized the religious employer exemption as an amendment to the interim final rule,” not the mandate as a whole. Id. (citing 77 FED. REG. at 8,730). The requirements being challenged are not finalized; and the safe harbor, ANPRM, and recent proposed rules are affirmative steps taken to amend the rules as they currently stand. The mandate’s requirements remain in flux, and judicial review at this time could be an “exercise in futility” and a waste of judicial resources. Armstrong, 961 F.2d at 412.
c. Practical Utility or Help The third prong of the Step-Saver framework requires the court to consider whether a declaratory judgment would be useful to the parties. A useful judgment is one that clarifies the legal relationships between the parties and allows the plaintiff to “make responsible decisions about the future.” Step-Saver, 912 F.2d at 649. Because the rules in place are in the process of being amended to exempt Geneva from having to comply with the mandate’s requirements, judicial intervention at this time will not assist the parties in any meaningful way.
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Geneva alleges that a decision in this case would allow it to make informed decisions about planning for future health care plan years, and to better understand the impact the mandate’s requirements will have on employment and student recruitment. Unfortunately, any decision made by this court will likely be irrelevant in light of the ongoing rulemaking process. “The mere fact that a declaratory judgment would be useful to assist Plaintiffs in making their upcoming operational decisions is insufficient to overcome the fact that no actual controversy . . . exists between the parties.” Zubik, 2012 WL 5932977, at *9. Because defendants represent that the final regulations will address the concerns of colleges like Geneva and the February 2013 proposed rules reflect that Geneva would be covered by an exemption, a decision rendered by this court on Geneva’s claims will not serve any practical utility.
Based upon consideration of the factors set forth in Step-Saver, the court concludes that Geneva’s claims are not ripe for review at this time, and defendants’ motion to dismiss with respect to Geneva’s claims shall be GRANTED without prejudice.
Geneva argues in the alternative that defendants’ promises of future change make this a mootness, rather than a ripeness question. Because the recent proposed rules are not yet final, the court cannot conclude at this time that the issues raised are moot. If defendants do not live up to their promises, this action may become ripe again; thus, to the extent that the court will dismiss Geneva’s claims, it will do so without prejudice. See note 13, supra.
B. Claims Asserted by Hepler, Kolesar, SHLC and WLH 1. Religious Freedom Restoration Act Claims of Hepler, Kolesar, SHLC and WLH
It is undisputed that the Hepler and Kolesar have standing to pursue their claims. The court must consider whether SHLC and WLH (the “Hepler Entities” and together with Hepler
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and Kolesar, the “Hepler plaintiffs”) have standing and whether the Hepler plaintiffs stated cognizable claims under the RFRA. Pursuant to the RFRA, the government may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). The government may, however, substantially burden the exercise of religion if the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The simple language of the RFRA belies the challenge of applying it to the Hepler plaintiffs in the present case. The Hepler plaintiffs bear the initial burden under the RFRA of establishing “that application of the offensive law or policy would substantially burden a sincere, religious exercise.” Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110 at *9 (E.D. Pa. Jan. 11, 2013) (citing Norwood v. Strada, 249 F. App’x 269, 271 (3d Cir. 2007)).
a. Standing to Assert Claims Under the RFRA It goes without saying that the individual members of the Hepler family are “persons” as defined by the RFRA. The more difficult issue arises with respect to whether the Hepler Entities are “persons” that can exercise religion in the context of the RFRA. Neither the Supreme Court nor the Court of Appeals for the Third Circuit has had an opportunity to decide whether a secular, for-profit corporation or entity can exercise religion. Other district courts which addressed this question in the context of challenges to the ACA have considered the question as it applies to both the RFRA and the First Amendment Free Exercise Clause. Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323 at *5 n.9 (D. D.C. Nov. 16, 2012)
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(acknowledging that courts employ Free Exercise Clause jurisprudence in interpreting RFRA
claims).
Defendants argue that a secular, for-profit corporate entity cannot exercise religion
because once such an entity enters the regulated commercial market, its owners’ beliefs do not
trump the regulatory scheme to which all other commercial entities are subject. Defendants point
out that corporate entities that have been found to exercise religion have always done so in the
context of advancing a religious purpose; and the Hepler Entities did not espouse a religious
purpose that would place them in this category.
According to the Hepler plaintiffs, a closely-held, family-owned corporation and its
religious owners are virtually indistinguishable, and therefore the corporation can effectively
exercise the owners’ religion. The Hepler plaintiffs rely on the recent Supreme Court decision in
Citizens United (extending the First Amendment right to freedom of speech to corporate entities)
for the proposition that secular corporations can exercise religion because the First Amendment rights of individuals and corporations are coextensive.16 The Hepler plaintiffs point out that
denying corporations free exercise rights would require owners like the Heplers to
compartmentalize their religious beliefs, thus preventing them from running their businesses
according to their deeply held religious principles.
The RFRA itself does not define “person” as used in the statute. In supplemental briefing,
the Hepler plaintiffs suggest that the court apply the definition of “person” as set forth in 1
U.S.C. § 1, which provides that “[i]n determining the meaning of any Act of Congress, unless
16 The First Amendment provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech . . .” U.S. CONST. amend. I. In this context, religious freedom and freedom of speech are placed on equal footing and should therefore be interpreted together, based upon the shared “nature, history, and purpose” of First Amendment freedoms. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (distinguishing the First Amendment protections granted to corporations from limitations on corporate rights imposed by other constitutional provisions due to differences among the amendments).
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the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations . . . as well as individuals.” 1 U.S.C. § 1 (emphasis added). On its face, this definition allows the Hepler Entities to assert a right to exercise religion in the RFRA context. The court, however, concludes that it need not address head-on the issue whether all for-profit corporations may exercise First Amendment free exercise rights, because SHLC may assert the RFRA and First Amendment claims on behalf of its owners, the Heplers.
Two decisions from the Court of Appeals of the Ninth Circuit guide this court’s holding that a for-profit, secular corporation has standing to assert the religious exercise claims of its owners in certain circumstances: Equal Employment Opportunity Commission v. Townley Engineering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988), and Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). The Hepler plaintiffs rely heavily on Townley and Stormans in arguing that a closely-held corporation may assert its owners’ free exercise and RFRA rights where the corporate entity “‘is merely the instrument through and by which [the owners] express their religious beliefs.’” Stormans, 586 F.3d at 1120 (quoting Townley, 859 F.2d at 619-20). A district court addressing a challenge similar to the present case also found Townley and Stormans persuasive in finding that a secular, for-profit corporation may assert its owners’ free exercise rights. Tyndale House, 2012 WL 5817323, at *5-7.
Townley involved a closely-held corporation that manufactured and sold mining equipment. Townley, 859 F.2d at 611. The company was 94% owned by Jake and Helen Townley, who sought to operate the business on the basis of their Christian faith, and who were “‘unable to separate God from any portion of their daily lives, including their activities at the Townley company.’” Id. at 612. Townley sought a religious exemption from Title VII of the Civil Rights Act allowing it to require employees to attend weekly devotional services. Id. The
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court of appeals explicitly declined to “address the abstract issue whether a for-profit corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers;” rather, the court held that the company had standing to assert the rights of Jake and Helen Townley. Id. at 619-20, n.15.
The Court of Appeals for the Ninth Circuit recently relied on Townley in a case with facts quite similar to the present circumstances. In Stormans, the owner of a pharmacy challenged a Washington state regulation that required pharmacies to provide Plan B to customers despite religious and moral objections. Stormans, 586 F.3d at 1116-17. The pharmacy in Stormans was a fourth-generation family-owned company in which the shareholders and directors were all members of the same family. Id. at 1120. The owners alleged, and the court agreed, that the pharmacy was “an extension of the beliefs of the members of the Stormans family, and that the beliefs of the Stormans family [were] the beliefs of [the pharmacy].” Id. The court held that “Stormans, Inc. does not present any free exercise rights of its own different from or greater than its owners’ rights. We hold that, as in Townley, Stormans has standing to assert the free exercise rights of its owners.” Id.
SHLC pled ample facts necessary for this court to conclude that it has standing to assert its owners’ rights in the First Amendment and RFRA context. As was the case in Stormans, SHLC is a closely-held corporation,17 whose shareholders are Hepler and seven of his children. (ECF No. 32 ¶ 89.) Those eight individuals also constitute SHLC’s board of directors. (Id.) With respect to WLH, however, there is no legal separation between it and its owner, Hepler. WLH’s claims are actually Hepler’s claims, as a sole proprietorship does not have standing to bring suit
17 Pennsylvania law defines a “closely held corporation” as a “business corporation that: (1) has not more than 30 shareholders; or (2) is a statutory close corporation.” 15 PA. CONS. STAT. § 1103. A “statutory close corporation” is a corporation that elects to become subject to the provisions of the Pennsylvania close corporation law, 15 PA. CONS. STAT. § 2301 et seq. Id.
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in its own right. 1 WILLIAM MEADE FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 23 (2012), available at Westlaw FLETCHER-CYC (citing Dolby v. Worthy, 173 P.3d 946 (Wash. App. 2007)). Hepler, who is already a party to this suit, may assert in his own name the claims asserted by WLH. WLH, which is not a separate legal entity, will be dismissed as a named plaintiff.
The Hepler plaintiffs allege that “[t]he Heplers believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, sterilization, and related education and counseling, through the inclusion of such items in health insurance coverage they offer at their businesses.” (Id. ¶ 80.) The complaint further alleges the extent to which the Heplers strive to incorporate their religious beliefs into every aspect of their business, including: (1) “providing health insurance coverage to their family members and other Catholic employees in a form that is consistent with those employees’ religious beliefs” (Id. ¶82); (2) “display[ing] religious imagery at the offices of SHLC Hardwood, . . . building a Catholic chapel in SHLC Hardwood’s retail store” (Id. ¶ 84); and (3) “direct[ing] their businesses to engage in charitable donations towards Catholic efforts.” (Id. ¶ 85.)
Like the corporate owners in Townley, Hepler and Kolesar argue that they are unable to separate their Catholic beliefs into different spheres of their lives, and thus their exercise of religion and their business activities are one and the same. (ECF No. 51 at 24.) The present facts are much stronger than those in Stormans, in which the plaintiffs offered no evidence of how their faith was incorporated into the running of the pharmacy business. Taken together, the above-cited examples of the interrelatedness between SHLC, WLH and the Heplers’ beliefs lead
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the court to conclude that SHLC established standing to assert the First Amendment and RFRA claims of its owners.
Defendants argue that a secular, for-profit corporation accepts limitations on its activities when it enters the commercial market, and that a corporation cannot “impose its owners’ religious beliefs on its employees.” (ECF No. 40 at 24) (citing United States v. Lee, 455 U.S. 252, 261 (1982). Defendants conclude, therefore, that SHLC’s status as a secular, for-profit corporation and WLH’s status as a secular, for-profit employer prevent them from claiming the religious employer exemptions that are available to other entities. (Id.) As noted, however, WLH is not a separate legal entity and its claims may be directly asserted by Hepler.
Defendants are correct that SHLC does not operate as a “religious organization” as defined by the Court of Appeals for the Third Circuit. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007) (outlining several factors courts consider in determining whether an entity qualifies as a religious organization). Nevertheless, courts should not focus on the particular category of entity seeking First Amendment protection, but should instead look at “whether [a challenged statute] abridges [rights] that the First Amendment was meant to protect.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978) (addressing free speech rights). The court finds further support for this argument in Citizens United. Although that decision addressed corporate rights in the context of speech, the Court in Citizens United acknowledged that categorizing entities for the purpose of prohibiting some forms of First Amendment expression while allowing others is prohibited. Citizens United, 130 S. Ct. at 898, 905-06 (rejecting the argument that media corporations are entitled to greater First Amendment protections than other corporations). The Court also explicitly acknowledged that “First Amendment protection extends to corporations.” Id. at 899. This court will not draw such
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distinctions in the present case, particularly where crucial First Amendment rights are at stake and where there is no contextual distinction in the language of the First Amendment between freedom of speech and freedom to exercise religion. At this stage, the court finds that SHLC pleaded sufficient facts for the court to find that it has standing to assert its owners’ RFRA and First Amendment claims.
b. Substantial Burden Having found that Hepler, Kolesar and SHLC have standing to assert their claims under the RFRA, the court must now determine whether the mandate’s requirements impose a substantial burden on the their exercise of religion. Under the RFRA, exercise of religion is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2 (citing 42 U.S.C. § 2000cc-5). Other courts have been clear that “it is not the province of the court to tell the plaintiffs what their religious beliefs are, i.e. whether their beliefs about abortion should be understood to extend to how they run their corporations or the like, or to decide whether such beliefs are fundamental to their belief system.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1293 (W.D. Okla. 2012). Therefore, the court must tread lightly when considering whether the mandate’s requirements substantially burden the exercise of religion by the Hepler plaintiffs. A challenged law substantially burdens the free exercise of religion if it compels plaintiffs “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). A substantial burden also exists where a law “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981). Even “onerous” financial costs can rise to the level of a substantial burden. Jimmy Swaggart Ministries v. Bd. of
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Equalization of Cal., 493 U.S. 378, 392 (1990) (declining to find a substantial burden, but
recognizing that one could exist under certain circumstances).
Courts addressing similar challenges to the mandate’s requirements have “simply
assume[d] that a law substantially burdens a person’s exercise of religion when that person so
claims.” Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 at *6 (E.D. Mich. Oct. 31, 2012).18 Given such a low standard, the Hepler plaintiffs’ complaint sufficiently sets forth
allegations to plausibly show a substantial burden on their exercise of religion.
Defendants do not question the sincerity of the individual Hepler plaintiffs’ religious
beliefs, but they do dispute whether the mandate’s requirements impose a substantial burden on
the exercise of those beliefs. Defendants argue that the mandate’s requirements do not burden the
Hepler plaintiffs’ exercise of religion because the regulations only apply to group health plans
and health insurance issuers, not to individuals. Without a direct requirement that the individual
Hepler plaintiffs provide insurance coverage for the objected to services, defendants maintain
that any burden is too attenuated to be cognizable under the RFRA. The Hepler plaintiffs respond
that even indirect compulsion is sufficient under the RFRA if it requires them to abandon their
religious beliefs and provide the objectionable coverage in fear of being subject to financial
penalties. The Hepler plaintiffs reject defendants’ argument that a burden on SHLC is not a
burden on the individual owners and employees, as in this case the individual Hepler plaintiffs
are essentially providing themselves and their own families with the objectionable coverage.
18 The court in Legatus pointed to language from three court decisions in support of its conclusion: Lee, 455 U.S. at 257 (“We therefore accept appellee’s contention that both payment and receipt of social security benefits is forbidden by the Amish faith”); May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (“we will assume that undoing May’s dreadlocks imposes a substantial burden on his exercise of Rastafarianism”); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996) (“we assume that the regulations and policies at issue in the present case substantially burden Hamilton’s exercise of his religion”); see also Hunter v. Baldwin, 78 F.3d 593, 593 (9th Cir. 1996) (“With respect to Hunter’s facial challenge to the regulation, we assume that the regulation could be applied in a way to substantially burden a prisoner’s free exercise of religion”).
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The Hepler plaintiffs rely upon several Supreme Court decisions that they argue support their claims that they have suffered a substantial burden under the RFRA.19 First, in Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972), the Supreme Court held that a state compulsory education law imposing criminal fines for failing to remain in school until age sixteen violated the free exercise rights of the Old Order Amish. In Sherbert v. Verner, 374 U.S. 398, 410 (1963), the Supreme Court held that a state could not withhold unemployment benefits from a worker who refused employment on grounds that working on Saturdays violated the worker’s religious beliefs. Finally, in Thomas v. Review Board, 450 U.S. at 719, the Supreme Court again found that a state could not deny unemployment benefits to a worker who terminated his employment because his religious beliefs forbade his participation in the production of tanks. The Hepler plaintiffs maintain that these decisions support their argument that even indirect burdens on religious exercise are substantial enough to be cognizable under the RFRA.
The Hepler plaintiffs are faced with having to choose between violating their deeply held religious beliefs and being forced to cause SHLC to terminate their health insurance coverage, which they also allege would burden their religious exercise. (ECF No. 32 ¶¶ 116-24.) This kind of Hobson’s choice is similar to that faced by the plaintiff in Sherbert, who was “force[d] . . . to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to work, on the other hand.” Sherbert, 374 U.S. at 404. Here, the Hepler plaintiffs are unable to enjoy the benefits of providing the Heplers and their families health insurance that is free of the coverage for the objected to services. Like in Yoder, the Hepler plaintiffs allege that they would be subject to a financial
19 The Court of Appeals for the Third Circuit has instructed that courts should look to free exercise decisions issued prior to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), when interpreting the RFRA, since it was enacted to codify the standard established in Smith. Conestoga, 2013 WL 140110, at *10 n.13 (citing Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 176 (3d Cir. 1999)).
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penalty if they were forced to drop the SHLC health insurance plan and compensate the Hepler Entities’ employees for the purchase of their own equivalent plans. (ECF No. 32 ¶ 123.) In the context of a small, closely-held corporation and a sole proprietorship, these choices and the attendant consequences can have a significant impact on the health of those businesses and their owners.
Thomas is also instructive with respect to defendants’ argument that the burden on the Hepler plaintiffs is too attenuated to be substantial. In addressing whether a pacifist’s objection to war was too remote from his former occupation assembling tanks, the Supreme Court noted that “Thomas drew a line, and it is not for [the Court] to say that the line he drew was an unreasonable one.” Thomas, 450 U.S. at 715. The Court instructed that “[c]ourts should not undertake to dissect religious beliefs” when analyzing substantial burden questions. Id. In the present case, SHLC purchases insurance for its employees and provides that coverage to WLH’s employees. Thus, the coverage is provided to the Heplers and their families, who object to providing coverage which violates their exercise of religion. At this early stage in proceedings, it is not for this court to prevent the Hepler plaintiffs from acting upon the sincerely held religious beliefs of the Heplers.
It is also important to note that the Hepler plaintiffs’ position with respect to the mandate’s requirements is more subtle than many courts have recognized. (ECF No. 62 at 3) Compare Tyndale House, 2012 WL 5817323, at *13 (“[t]he plaintiffs’ specific objection is not simply to the use of the contraceptives at issue, but to ‘providing coverage for abortifacients and related education and counseling in [plaintiffs’] health insurance plan”); Grote Indus., LLC v. Sebelius, No. 12-134, 2012 WL 6725905 at *6 (S.D. Ind. Dec. 27, 2012) (“[w]e acknowledge that Plaintiffs object not just to the use of contraceptives, but to the coverage itself” (emphasis in
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original)) with Conestoga, 2013 WL 140110, at *13 (“the core of the [plaintiffs’] religious objection is the effect of particular contraceptives on a fertilized egg”); O’Brien v. United States Dep’t of Health and Human Services, No. 12-476, 2012 WL 4481208 at *6 (E.D. Mo. Sept. 28, 2012) (“[t]he burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [plaintiffs’] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion”). The Hepler plaintiffs object to providing coverage for abortifacients, not the payment for or use of such items. The objection, therefore, is less attenuated than defendants argue.
The Heplers explicitly object to the requirement that they through the Hepler Entities provide the objectionable coverage to themselves and their families. (ECF No. 32 ¶ 80.) Regardless of who purchases the insurance in question in this case—whether it be SHLC (acting on behalf of the Heplers), or the Heplers themselves—that insurance will necessarily include coverage for the objected to services, thus imposing a substantial pressure on the Heplers to “modify [their] behavior and to violate their beliefs” by either giving up their health insurance generally or providing the objectionable coverage. Thomas, 450 U.S. at 718. This is a quintessential substantial burden. The allegations in the amended complaint are sufficient for the court to conclude that the Hepler plaintiffs have shown a plausible claim under the RFRA.
c. Compelling Government Interest/Least Restrictive Means Since the Hepler plaintiffs set forth a plausible claim that the mandate’s requirements impose a substantial burden on their exercise of religion, the burden shifts to defendants to show that the mandate’s requirements serve “interests of the highest order.” Yoder, 406 U.S. at 215. Defendants argue that the mandate’s requirements serve two complementary compelling
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interests—namely the need to promote public health and the need to promote gender equality. Few would argue that promoting the public health is not a compelling government interest. See Mead v. Holder, 766 F. Supp. 2d 16, 43 (D. D.C. 2011) (acknowledging that, in the context of the ACA, “the Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets”). The Hepler plaintiffs do not appear to seriously dispute that public health and gender equality can, in certain circumstances, be compelling government interests.
The Hepler plaintiffs instead argue that defendants’ proffered interests are too vague and general to satisfy a strict scrutiny analysis. In construing RFRA claims, courts must look “beyond broadly formulated interests justifying the general applicability of government mandates and [scrutinize] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro, 546 U.S. at 431. Under the RFRA, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 420 (citing 42 U.S.C. § 2000bb-1(b)). Defendants in the present case will have difficulty showing that failure to exclude SHLC from the objected to requirements will “seriously compromise [the government’s] ability to administer this program.” Id. at 435.
In O Centro, the Supreme Court found that the government failed to make a showing that a ban on the use of a hallucinogenic substance served a compelling interest as applied to a Native American tribe that used the substance as part of its religious services. Id. at 439. The Court relied heavily on similar religious exemptions granted with respect to the use of peyote by “hundreds of thousands” of members of the Native American Church, and found that such broad exemptions weighed heavily against finding a compelling interest. Id. at 433-34. In light of the
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myriad exemptions to the mandate’s requirements already granted—including the most recent developments that will—if implemented—further increase the number of exempt entities—and conceding that the requirement does not include small employers similarly situated to SHLC, the requirement is “woefully underinclusive” and therefore does not serve a compelling government interest. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002).
The Hepler plaintiffs and several other courts addressing similar challenges to the mandate’s requirements pointed out that over 190 million individuals have already been exempted from the mandate’s requirements as a result of the grandfathering provisions in the ACA. E.g. Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) (“[t]he government has exempted over 190 million health plan participants . . . from the preventive care coverage mandate”); Tyndale House, 2012 WL 5817323, at *18 (“Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone.” (emphasis in original)). Defendants argue that the grandfathering provision is merely temporary, and is aimed at easing in the requirements imposed by the ACA. While true, the mere fact that defendants granted such a broad exemption in the first place severely undermines the legitimacy of defendants’ claim of a compelling interest.
In addition to the grandfathering exemption, the ACA recognizes an exemption for members of a “religious sect or division” that objects to accepting public or private insurance funds. 26 U.S.C. § 5000A(d)(2)(A). Defendants exempted more traditional religious employers from the requirement, under pressure from other religious groups. 76 FED. REG. at 46,626. SHLC itself even qualifies to be excused from providing any kind of health insurance insofar as it is defined as a small employer under the ACA. See 42 U.S.C. § 18024(b)(2). As a small employer, SHLC is exempt from the requirement that it provide health insurance to its employees at all. 26
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U.S.C. § 4980H(c)(2)(A) (requiring that employers with fifty or more full-time employees provide health coverage). Finally, in response to intense public pressure, defendants proposed rules that will further exclude nonprofit religious institutions like Geneva from the mandate’s requirements. 78 FED. REG. at 8,462. In light of the myriad exemptions, the “[requirement] cannot be regarded as protecting an interest ‘of the highest order,’” particularly in a case like this where “it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993). The large swath of the population that remains unaffected by the mandate’s requirements belies any notion that the government’s interests are as compelling as defendants argue. Because defendants failed to establish that the mandate’s requirements do not serve a compelling interest as applied to the Hepler plaintiffs, the court need not address whether the mandate is the least restrictive means, and the Hepler plaintiffs’ claims under the RFRA may proceed.
2. The Hepler Plaintiffs’ First Amendment Claims Having already decided that SHLC has standing to assert the Heplers’ First Amendment claims, the court will now individually address those claims.
a. Free Exercise Clause Claim The Free Exercise Clause of the First Amendment provides “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. CONST. amend. I. The “RFRA and the Free Exercise Clause create different standards for the protection of religion and . . . RFRA’s substantive protections extend far beyond what the Free Exercise Clause requires.” Hankins v. Lyght, 441 F.3d 96, 112 (2d Cir. 2006) (Sotomayor, J., dissenting). Although the Hepler plaintiffs set forth sufficient facts to establish a claim for relief under the RFRA, they must still satisfy the pleading standard with respect to the Free Exercise Clause. The Free Exercise Clause
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of the First Amendment “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Emp’t Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 879 (1990) (quoting Lee, 455 U.S. at 263 n.3). The requirements of “[n]eutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is not neutral if its object “is to infringe upon or restrict practices because of their religious motivation.” Id. at 533. Laws are not generally applicable if they selectively “impose burdens only on conduct motivated by religious belief.” Id. at 543. If a law is found to be neutral and generally applicable, then it must only withstand rational basis review; otherwise, it must withstand strict scrutiny. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 362 (3d Cir. 1999)
Defendants argue that the Hepler plaintiffs’ free exercise claims must fail because the mandate’s requirements are neutral and generally applicable. With respect to neutrality, defendants note that the requirements do not, on their face, refer to any religious practice—and that the only mention of religion in the regulations relates to the religious exemption—which they argue reflects an effort to accommodate religion, not target it. (ECF No. 40 at 33-34.) Defendants maintain that the requirement is generally applicable because it does not pursue its purpose “only against conduct motivated by religious belief.” (Id. at 33) (citing Lukumi, 508 U.S. at 545.)
The Hepler plaintiffs respond that the requirement is underinclusive in light of the myriad exemptions provided which exempt “191 million” people from the requirement. The Hepler plaintiffs note that the government has “discretion” to broaden the religious exemption to include the Hepler plaintiffs, but has not done so. The Hepler plaintiffs conclude that this failure to
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exempt them is based upon the “Government’s theological notion that employers are only religious if they are churches who stay in their own four walls and focus on self-serving purposes.” (ECF No. 51 at 35.)
The Hepler plaintiffs rely on two decisions of the Court of Appeals for the Third Circuit to support their argument. First, in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), a Native American who owned black bears sought a religious exemption from the permit fee required by the state. The permit statute allowed exemptions for zoos, nationally recognized circuses, and in cases “‘where hardship or extraordinary circumstance warrants,’ so long as the waiver is ‘consistent with sound game or wildlife management activities.’” Id. at 205 (citing 34 PA. CONS. STAT. § 2091(d)). In addressing the plaintiff’s free exercise claim, the court of appeals acknowledged that a law “fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated.” Id. at 209 (citing Lukumi, 508 U.S. at 543-46.) The Blackhawk court found that the “individualized, discretionary” permit requirements in that case contained “secular exemptions that preclude[d] the fee scheme from satisfying the requirement of general applicability.” Id. at 213. The scheme in Blackhawk did not include a categorical exemption for religiously-motivated conduct.
In Fraternal Order of Police, the court of appeals determined that a police department policy prohibiting the wearing of beards was unconstitutional where exemptions were granted for officers with special medical needs or undercover assignments, but not for officers whose religion required that they wear a beard. Fraternal Order of Police, 170 F.3d at 367. The court of appeals rejected the notion that only policies involving “individualized exceptions” could be
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subject to free exercise attack and noted that “[i]f anything, this concern is only further implicated when the government does not merely create a mechanism for individualized exemptions, but instead, actually creates a categorical exemption for individuals with a secular objection but not for individuals with a religious exemption.” Id. at 365 (emphasis added). The court found that “the medical exemption raises concern because it indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” Id. at 366.
There is little doubt that the mandate’s requirements are facially neutral in the sense that they are directed toward benefiting the public health, and are not explicitly targeted at any particular religious conduct. The court’s analysis, however, must extend beyond the face of the regulations in question. The Court of Appeals for the Third Circuit has acknowledged that
the Free Exercise Clause’s mandate of neutrality toward religion prohibits government from ‘deciding that secular motivations are more important than religious motivations.’ . . . Accordingly, in situations where government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation of the reasons underlying a violator’s conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct. Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002). The process of implementing the objected to requirements has been replete with examples of the government impermissibly exercising its discretion by exempting vast numbers of entities while refusing to extend the religious employer exemption to include entities like SHLC. The primary example of the “categorical exemption” rejected in Fraternal Order of Police in the present case is the grandfathering provision in the ACA, which exempts as many as 191 million entities from the mandate’s requirements. The grandfathering exemption impacts secular
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employers to “at least the same degree”—and likely far more—than religious objections from entities like SHLC. Blackhawk, 381 F.3d at 209. The fact that the government saw fit to exempt so many entities and individuals from the mandate’s requirements renders their claim of general applicability dubious, at best. Elsewhere in their briefing, defendants respond that the number of grandfathered plans will continue to decrease as time goes on. Even if this comes to fruition (which is not a certainty), the secular exemption for employers with fewer than fifty full-time employees that choose not to provide any insurance coverage remains. 26 U.S.C. § 4980H(c)(2)(A). Taken together, these categorical exemptions for secular entities and individuals raise a concern that the mandate’s requirements are not generally applicable.
In addition to the secular exemptions, the government continues to engage in an impermissible “religious gerrymander” by extending exemptions to an increasing number of religiously-affiliated entities. Although the court of appeals in Blackhawk and Fraternal Order of Police was not faced with the situation where, as here, some religious conduct is exempted, the fact that defendants continue to carve out exemptions, see generally 78 FED. REG. 8,456, while subjecting SHLC and other similarly-situated close corporate entities to the mandate’s requirements, raises a suggestion of “discriminatory intent” against close corporate entities seeking to advance the religious beliefs of their owners. Fraternal Order of Police 170 F.3d at 362. On the present record, this court finds that the Hepler plaintiffs raised plausible claims that the sheer number of exemptions—both secular and religious—to the mandate’s requirements burdened their free exercise rights to an extent sufficient to trigger strict scrutiny. The court already analyzed the mandate’s requirements under the compelling government interest test in the RFRA context and found that they do not survive strict scrutiny; therefore, for the same
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reasons, the First Amendment claim is sufficient, and the motion to dismiss this claim must be denied.
b. Establishment Clause Claim The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” U.S. CONST. amend. I. The “clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). For a challenged statute to be valid under the Establishment Clause it (1) “must have a secular legislative purpose;” (2) “its principal or primary effect must be one that neither advances nor inhibits religion;” and (3) it “must not foster ‘an excessive entanglement with religion.’” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quoting Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664 (1970)). A law that aids one religion over another or prefers one religion over another is subject to strict scrutiny. Larson, 456 U.S. at 246. The Hepler plaintiffs maintain that the religious employer exemption to the mandate’s requirements impermissibly favors certain religious employers over others and fosters excessive entanglement with religion by requiring the government to “explore a religious organization’s purpose in impermissible ways.” (ECF No. 51 at 36.) Other courts addressing similar arguments have rejected them. O’Brien, 2012 WL 4481208, at *9-10; Grote Indus., 2012 WL 6725905, at *8-9. The religious employer exemption to the mandate’s requirements does not run afoul of the Establishment Clause because it does not make distinctions based upon religious affiliation. Instead, as defendants point out, the “criteria for the exemption focus on the purpose and composition of the organization, not on its sectarian affiliation. The exemption is available on an
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equal basis to organizations affiliated with any and all religions.” (ECF No. 40 at 35-36.) This
kind of regulation has been found acceptable in the Establishment Clause context.
In Walz, the Supreme Court concluded that a religious exemption to property tax
requirements did not violate the Establishment Clause because the exemption “has not singled
out one particular church or religious group or even churches as such; rather, it has granted
exemption to all houses of religious worship within a broad class of property owned by non-
profit, quasi-public corporations.” Id. at 672-73. Likewise, in Droz v. Commissioner of Internal
Revenue Service, 48 F.3d 1120, 1124 (9th Cir. 1995), the Court of Appeals for the Ninth Circuit
found that a religious exemption from the requirement that individuals pay Social Security taxes,
26 U.S.C. § 1402(g), withstood an Establishment Clause challenge. The court of appeals
concluded that the statute did not facially discriminate among religions, despite the fact that
“some individuals receive exemptions, and other individuals with identical beliefs do not.” Id.
Challenges to a state law similar to the mandate have likewise survived Establishment Clause
analysis.20
The religious employer exemption to the mandate’s requirements does not single out one
particular religious denomination or religion. The religious employer exemption at issue in the
present case is more akin to the situation in Droz, where even those who share beliefs may be
20 In Catholic Charities of Diocese of Albany v. Serio, 859 N.E. 2d 459, 468-69 (N.Y. 2006), the New York Court of Appeals rejected an Establishment Clause challenge to a state law which contained provisions similar to the mandate. The state law provides that “[e]very contract which provides coverage for prescription drugs shall include coverage for the cost of contraceptive drugs or devices approved by the [FDA].” N.Y. INSURANCE LAW §4303(cc) (McKinney 2012). The same provision includes an exemption for religious employers where: “(i) The inculcation of religious values is the purpose of the entity. (ii) The entity primarily employs persons who share the religious tenets of the entity. (iii) The entity serves primarily persons who share the religious tenets of the entity. (iv) The entity is a nonprofit organization as described [in the Internal Revenue Code].” Id. In addressing the Establishment Clause challenge, the court rejected the plaintiffs’ argument “that the legislation is invalid under Larson because it distinguishes between religious organizations that are exempt from the contraception requirements and those that are not.” Diocese of Albany, 859 N.E. 2d at 468. The court concluded that “this kind of distinction—not between denominations, but between religious organizations based on the nature of their activities—is not what Larson condemns.” Id. at 468-69.
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differently impacted. For example, the Hepler plaintiffs likely share beliefs with entities that are exempted from the requirement, but such a situation is not prohibited by the Establishment Clause. Like in Droz, this kind of an impact does not violate the government neutrality requirement of the Establishment Clause.
The crucial distinction between the present case and Larson is that the Minnesota legislators who drafted the income reporting law at issue in that case explicitly sought to exclude a Roman Catholic Archdiocese from the scope of the act, and accordingly drafted the law. Larson, 456 U.S. at 254. Other legislators sought to include those “religious organizations which are soliciting on the street and soliciting by direct mail, but who are not substantial religious institutions in . . . our state.” Id. (quoting the transcript from legislative discussions). The Hepler plaintiffs adduce no factual allegations about such an insidious purpose with respect to the religious exemption in the present case. Without such allegations, the religious employer exemption has neither the purpose nor effect of discriminating among religious denominations, and is therefore not the type of “‘religious gerrymandering’” sought to be avoided in Larson. Id. at 255 (quoting Gillette v. United States, 401 U.S. 437, 452 (1971)).
With respect to excessive entanglement, the Hepler plaintiffs maintain that the religious employer exemption requires the government to explore impermissibly a religious organization’s purpose when determining eligibility for the exemption. In the present case, neither the Hepler Entities nor the Heplers would be subject to governmental exploration insofar as neither SHLC nor WLH is a nonprofit entity, as required by 45 C.F.R. § 147.130(a)(1)(iv)(B)(4) (requiring that an employer be a nonprofit organization as set forth in the Internal Revenue Code at 26 U.S.C. § 6033(a)(1)). Because the Heplers and the Hepler Entities are individuals and for-profit entities, respectively, no further government investigation would be required to determine their
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ineligibility for the religious employer exemption. On that basis alone, the Hepler plaintiffs cannot assert that the religious exemption fosters an excessive entanglement with religion.
To the extent that the Hepler plaintiffs present a facial challenge to the religious employer exemption, there is still not the necessary “excessive” entanglement to violate the Establishment Clause. The Supreme Court has stated that “[n]ot all entanglements” violate the Constitution and courts “have always tolerated some level of involvement between the two.” Agostini v. Felton, 521 U.S. 203, 233 (1997). “Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” Id. (quoting Bowen v. Kendrick, 487 U.S. 589 at 615-17 (1988)).
In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), the Supreme Court held that religious employer exemptions do not necessarily violate the Establishment Clause. At issue in Amos was the religious employer exemption to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a). The Court held that “[i]t cannot be seriously contended that [the religious employer exemption] impermissibly entangles church and state; the statute effectuates a more complete separation of the two and . . . easily passes muster under the third part of the Lemon test.” Id. at 339.21
The religious employer exemption in the present case will likely involve a review of an organization’s membership composition and possibly its mission statement. Courts frequently undertake a similar review when determining the applicability of the religious employer exemption under Title VII. Cf. LeBoon, 503 F.3d at 226 (requiring courts to examine, inter alia, an entity’s nonprofit status; whether the entity has a religious purpose; whether it includes
21 Likewise in Diocese of Albany, the New York Court of Appeals upheld essentially the same religious employer exemption as in the present case. In Diocese of Albany the court noted that “legislative accommodation to religious believers is a long-standing practice completely consistent with First Amendment principles.” 859 N.E. 2d at 469. Accord Forest Hills Early Learning Ctr. v. Grace Baptist Church, 846 F.2d 260, 262-64 (4th Cir. 1988) (upholding a state law granting a licensing exemption to religious day care providers).
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religious instruction in its curriculum; and whether its membership includes individuals of the
same faith). The risk of entanglement in the present case is not excessive, because the
government is not providing anything to the covered organizations. Contra Bowen, 487 U.S. 589
at 616-17 (finding no Establishment Clause violation where government grant program provided
funding for adolescent pregnancy and sexuality services at some religiously-affiliated
organizations, even though the program required government oversight involving review of
program materials and periodic site visits). Instead, the oversight in the present situation requires
entities seeking the religious employer exemption to satisfy requirements that are very similar to
those seeking exemptions from Title VII. See LeBoon, 503 F.3d 226. Entities seeking an exemption under the proposed rules must self-certify22 that they meet the requirements as set
forth in the regulations. 78 FED. REG. at 8,462. These requirements do not rise to the level of
governmental intrusion into the “day-to-day operation” of the exempt organizations. Bowen, 487
U.S. at 616. Consequently, the religious employer exemption does not violate the Establishment
Clause, and defendants’ motion must be GRANTED with respect to any claim asserted under the
Establishment Clause.
c. Free Speech Clause Claim
22 The regulations define “self-certification” as follows: Each organization seeking accommodation under the proposed rules would be required to selfcertify that it meets the definition of eligible organization, following a self-certification process similar to that under the temporary enforcement safe harbor. . . . The organization would not be required to submit the self-certification to any of the Departments. The organization would maintain the self-certification (executed by an authorized representative of the organization in its records for each plan year to which the accommodation applies and make the self-certification available for examination upon request so that regulators, issuers, third party administrators, and plan participants and beneficiaries may verify that an organization has qualified for an accommodation, while avoiding any inquiry into the organization’s character, mission, or practices.
78 FED. REG. at 8,462.
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The Hepler plaintiffs argue that the mandate’s requirements compel them to subsidize speech, in the form of education and counseling, “in favor of items to which they object.” (ECF No. 51 at 37.) The Hepler plaintiffs do not, however, appear to contend that providing or using the objected to services is a form of expressive conduct, as has been argued in other challenges to the mandate’s requirements. See O’Brien, 2012 WL 4481208, at *11 (noting that “plaintiffs argue that the regulations require plaintiffs to subsidize other private individuals’ speech and to subsidize ‘conduct [that] is inherently expressive’”). Defendants respond that the regulations do not dictate the content of the education or counseling, and therefore the mandate’s requirements neither favor nor disfavor the use of the objected to services. (ECF No. 54 at 18.)
The First Amendment prohibits the government from compelling individuals to express views with which they disagree. United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). Likewise, the government may not compel individuals to subsidize speech to which they object. Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977). Assuming, as the Hepler plaintiffs allege, that their faith requires them to provide health insurance and that they remain subject to the mandate’s requirements in choosing to provide health care to their employees, the present case does not rise to the level of compelled speech. The Hepler plaintiffs rely on Abood and United Foods for the proposition that “compelled speech jurisprudence is triggered when the government forces a speaker to fund objectionable speech.” (ECF No. 51 at 37.) In Abood, the Supreme Court addressed a challenge to a provision of a public school collective bargaining agreement requiring nonunion teachers to pay service charges equal to the amount of dues paid by union members. 431 U.S. at 212. The union used the service charge to fund “ideological activities unrelated to collective bargaining.” Id. at 236. The Supreme Court held that the union could not compel the nonunion individuals to “contribute to the support of an ideological cause
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[they] may oppose as a condition of holding a job as a public school teacher.” Id. at 234-35. The Supreme Court next addressed compelled speech in the context of commercial speech in United Foods. 533 U.S. at 408. The challenge in that case was to a federal statute that required handlers of fresh mushrooms to pay an assessment to a trade association, which was used generally to fund advertising for the mushroom industry. Id. The Court found that the assessment violated the First Amendment insofar as it compelled the producers to subsidize speech with which they disagreed, even though the payments were not necessary to remain a part of a larger group or organization. Id. at 413-15.
To the extent that the Hepler plaintiffs in the present case are being called upon to fund speech—in the form of education and counseling—the content of that speech is not defined by the mandate’s requirements. Unlike in Abood and United Foods, the Hepler plaintiffs did not make factual allegations to show that they are being forced to “pay special subsidies for speech on the side that [the government] favors.” United Foods, 533 U.S. at 411. The funded speech in Abood and United Foods was directed at supporting a particular viewpoint. In Abood, teachers were forced to fund union political speech espousing ideological views that the plaintiffs did not support. Abood, 431 U.S. at 236. In United Foods, the plaintiffs funded general advertising with which they did not agree. United Foods, 533 U.S. at 413. Despite the Hepler plaintiffs’ contention that the mandate requires them to fund speech “in favor of items to which they object,” (ECF No. 51 at 37), the Hepler plaintiffs made no factual allegations indicating that the “unscripted conversation between a doctor and a patient” will advocate either for or against the provision of contraceptives. O’Brien, 2012 WL 4481208, at *12.
In the present case, the Hepler plaintiffs remain free to express their views about the objected to services, to refrain from using them, and to encourage others to follow suit. The
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mandate’s requirements have no impact on their speech. To the extent that the discussions between doctors and patients include discussions about the objected to services, those conversations are incidental to the doctor/patient relationship. The Hepler plaintiffs remain free to advocate for their religious beliefs. The Hepler plaintiffs’ free speech claims must be dismissed.
3. The Hepler Plaintiffs’ Fifth Amendment Due Process Claim The Due Process Clause of the Fifth Amendment provides: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. The Hepler plaintiffs claim that the mandate’s requirements are unconstitutionally vague under the Due Process Clause of the Fifth Amendment because they “create[] a standardless, blank check for Defendants to discriminatorily select whatever they want to call ‘religious’ and offer or withhold whatever accommodation they choose.” (ECF No. 51 at 37.) A law is unconstitutionally vague when it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Courts have held that “‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (quoting Williams, 553 U.S. at 304). Due process analysis is further relaxed in cases where, as here, a challenged statute imposes civil rather than criminal penalties. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). Despite the Hepler plaintiffs’ contentions, the amended complaint makes clear that they have a sophisticated understanding of how the mandate will impact SHLC’s health plan. E.g. (ECF No. 32 ¶¶ 97, 100, 116, 130, 143, 176.) This understanding belies the Hepler plaintiffs’
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allegation that the mandate is vague as applied to their situation. Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness”); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers AFL-CIO, 413 U.S. 548, 579 (1973) (“Surely, there seemed to be little question in the minds of the plaintiffs who brought this lawsuit as to the meaning of the law, or as to whether or not the conduct in which they desire to engage was or was not prohibited by the Act.”). Based upon the Hepler plaintiffs’ understanding of the mandate’s requirements and how they will impact SHLC’s health plan, it can hardly be contended that those requirements do not provide “fair notice” of prohibited conduct. Williams, 553 U.S. at 304. While the Hepler plaintiffs may disagree with what is required under the mandate, there does not seem to be a sufficient basis for the due process claim.
The Hepler plaintiffs attack the standards by which the mandate’s requirements are applied, calling them a “blank check” for defendants to decide who is religious or not. The Hepler plaintiffs’ argument appears to be that Congress exceeded its authority to delegate legislative power with respect to defining who is religious. The Hepler plaintiffs, however, cite no court decisions to support their argument that Congress exceeded its authority by delegating to HRSA the authority to define and implement the directives of 42 U.S.C. § 300gg-13. The Supreme Court has acknowledged that “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 37173 (1989) (emphasis added) (upholding the constitutionality Congress’s delegation of authority “to promulgate sentencing guidelines for every federal criminal offense to an independent Sentencing Commission”). When delegating legislative authority, Congress must simply set forth an “‘intelligible principle’” to which the regulating body must conform. Id. at 372. In the present
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case, the ACA makes clear the specific recommendations which are to be implemented as part of
the rulemaking process. In 42 U.S.C. § 300gg-13(a)(4), Congress made a valid delegation of
authority by identifying the kinds of items to be covered, and directing defendants to develop
guidelines and regulations necessary to carry out that directive. Certainly this qualifies as a
“broad general directive” permitted under Mistretta. The Hepler plaintiffs’ argument to the
contrary amounts to little more than legal conclusions that are not sufficient to survive a motion
to dismiss.
4. The Hepler Plaintiffs’ APA Claims
The Hepler plaintiffs’ final claims allege several violations of the APA. First, the Hepler
plaintiffs allege that defendants took administrative action in violation of the notice and
comment requirements; second, they allege that defendants’ actions were arbitrary and
capricious under the APA; and third, they maintain that the mandate’s requirements violate
existing law. (ECF No. 32 ¶¶ 288-299.) Section 706 of the APA provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
. . . (2) hold unlawful and set aside agency action, findings and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . (D) without observance of procedure required by law[.]
5 U.S.C. § 706(2)(A), (D). The rulemaking provisions of the APA require that agencies provide
notice of a proposed rule, invite and consider public comments, and adopt a final rule that
includes a statement of basis and purpose. 5 U.S.C. § 553(b), (c).
a. Notice and Comment Requirements
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Defendants maintain that the issuance of the challenged regulations was procedurally proper, and support their argument by maintaining that defendants sought comments on the second interim final regulations, 76 FED. REG. 46,621, based upon express statutory authority. Defendants point out that they “carefully consider[ed] thousands of comments” before they adopted the final regulations with the safe harbor provision and that they allowed for further amendment to accommodate religious objections. (ECF No. 40 at 41) (citing 77 FED. REG. at 8,726-27). In the alternative, defendants assert that even if they did not properly administer the notice and comment requirements, they showed good cause sufficient to overcome those requirements.
The Hepler plaintiffs counter by arguing that defendants never actually considered the objections, thus violating the requirements of 5 U.S.C. §§ 553 (b) and (c). The Hepler plaintiffs identify several facts which allegedly show that defendants did not adequately consider the objections submitted during the notice and comment period. The Hepler plaintiffs point to the ACA requirement of a one-year delay before the mandate’s requirements take effect, and that defendants published the provisions as interim final rules on August 1, 2011, one year before “[m]any college student policy years begin.” (ECF No. 51 at 40) (citing 76 FED. REG. at 46,624). Therefore, the Hepler plaintiffs allege that defendants had no intention of considering the objections, since defendants sought to have final regulations in place in time for the 2012-2013 school year. (Id.) (citing 76 FED. REG. at 46,624). The Hepler plaintiffs argue that defendants were forced to issue the ANPRM in 2012 based upon the comments that they allegedly ignored prior to finalizing the rules in August 2011. (Id.)
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Courts have held that statutory authorization can permit an agency to circumvent the normal APA notice and comment requirements.23 Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1237 (D.C. Cir. 1994). In a case where the statute authorizing administrative action allowed an agency to “‘promulgate interim final regulations to implement’” the regulations in question, the court found that kind of permissive language is not sufficient, on its own, to supersede the notice and comment requirements. See Coalition for Parity, Inc. v. Sebelius, 709 F. Supp. 2d 10, 19 (D. D.C. 2010) (declining to rely solely on statutory authorization and engaging in a good cause analysis). Another court interpreted that language as giving the agency discretion to issue an interim rule without a notice and comment period. Nat’l Women, Infants, and Children Grocers Ass’n v. Food and Nutrition Serv., 416 F. Supp. 2d 92, 105 (D.D.C. 2006) (quoting 42 U.S.C. § 1758).
In National Women, however, the court looked at the statutory language in the context of the agency’s argument that it bypassed the notice and comment requirements for good cause. Nat’l Women, 416 F. Supp. 2d at 105-08 (finding good cause after considering the agency’s four proffered reasons for its action: (1) the statutory language of 42 U.S.C. § 1758 permitting the agency to promulgate interim final rules; (2) Congressionally-imposed deadlines on the agency to implement a complex regulation; (3) the agency’s compelling need to provide guidance to states that would otherwise have had to comply with the statute without that guidance; and (4) the challenged rule was an interim rule). Addressing the defendant’s good cause argument at the summary judgment stage, the court in National Women acknowledged that “‘good cause inquiry
23 The APA acknowledges that Congress may modify the notice and comment requirements, but it provides that a “[s]ubsequent statute may not be held to supersede or modify this subchapter . . . except to the extent that it does so expressly.”). 5 U.S.C. § 559. Therefore, the APA only allows for express congressional modifications. There were no express congressional modifications implicated in this case.
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is inevitably fact- or context-dependent.’” Id. at 104-05 (quoting Mid-Tex Elec. Coop., Inc. v. Fed. Energy Regulatory Comm’n, 822 F.2d 1123, 1132 (D.C. Cir. 1987)).
Defendants argue that they established good cause in the present situation because statements in the Federal Register indicate that the public interest benefits by having final regulations in place for the start of the 2012-2013 school year, since many college health plans begin in August. 76 FED. REG. at 46,624. Defendants argue that the rules issued in August 2011 were merely interim final rules, and explicitly allow for further comment. Id. Although these factors could weigh in favor of a good cause finding, they may not rise to the level of good cause as set forth in National Women. Specifically, defendants’ rationale as set forth in the Federal Register did not indicate that Congress imposed a stringent deadline or indicate that the rules were necessary to provide much-needed guidance to other entities. At this stage in the proceedings, it is not appropriate for the court to weigh the parties’ arguments with respect to a showing of good cause without further development of the factual record. The Hepler plaintiffs set forth sufficient factual allegations to support a plausible claim that the notice and comment requirements of the APA were violated, and that claim will survive the motion to dismiss.
b. Arbitrary or Capricious The APA allows courts to set aside agency action that is found to be arbitrary or capricious. Fed. Commc’n Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). An agency action is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 44
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(1983). A court’s review of agency action is “narrow;” it may “‘not substitute its judgment for that of the agency,’” and it “should ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’” Id. at 513-14 (quoting Bowman Transp., Inc. v. ArkansasBest Freight Sys., Inc., 419 U.S. 281, 286 (1974)). The same deferential review applies even in cases where an agency has reversed course. Id. at 514. When promulgating regulations, an agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The Court of Appeals for the Third Circuit has noted that “[f]ailure of the agency to address an important aspect of the issue under consideration may be fatal to its conclusion.” Shane Meat Co., Inc. v. United States Dep’t of Defense, 800 F.2d 334, 336 (3d Cir. 1986). The burden of proving that an agency action is arbitrary or capricious falls upon the party challenging the action. McKinley v. United States, 828 F. Supp. 888, 892 (D. N.M. 1993) (citing Park Cnty. Res. Council v. United States Dept. of Agric., 817 F.2d 609 (10th Cir. 1987)).
The Hepler plaintiffs argue that defendants failed to consider comments expressing potential First Amendment and RFRA problems with the religious employer exemption and failed to explain the reason for doing so. In the amended complaint, the Hepler plaintiffs allege that defendants’ “issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.” (ECF No. 32 ¶ 294.) The Hepler plaintiffs, however, provide no factual allegations to support their conclusions, and they carry the burden on this claim. McKinley, 828 F. Supp. 822. On this basis alone, the Hepler plaintiffs failed to state a claim sufficient to survive defendants’ motion to dismiss.
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Even if the Hepler plaintiffs’ arbitrary and capricious challenge to the regulations at issue was allowed to proceed, statements in the Federal Register providing defendants’ rationale for the religious exemption contradict their argument.24 Specifically, defendants point to the statements that they “carefully considered whether to eliminate the religious employer exemption or to adopt an alternative definition of religious employer, including whether the exemption should be extended to a broader set of religiously-affiliated sponsors of group health plans and group insurance coverage.” 77 FED. REG. at 8,727. Defendants enacted the temporary enforcement safe harbor in response to those comments, providing extra time for further rulemaking. Id. Defendants noted that a broader exemption “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives,” and undermining the purposes articulated in the second interim final regulations. Id. at 8,728. Those purposes in the second interim final regulations included the need to “reasonably balance the extension of any coverage of contraceptive services . . . to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” 76 FED. REG. at 46,623.
It is noteworthy that defendants broadened the scope of employers that may seek an exemption from the mandate’s requirements. Defendants maintain that the expanded religious employer definition in the proposed rules “is intended to allow health coverage established or maintained or arranged by nonprofit religious organizations, including nonprofit religious institutional health care providers, educational institutions, and charities, with religious objections to contraceptive coverage to qualify for an accommodation.” 78 FED. REG. at 8,462.
24 The statements made by defendants and published in the Federal Register are subject to judicial notice. Pennsylvania v. Lockheed Martin Corp., 684 F. Supp. 2d 564, 567 n.2 (M.D. Pa. 2010) (citing 44 U.S.C. § 1507 (“[t]he contents of the Federal Register shall be judicially noticed . . .”)).
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Ongoing proposed changes to the regulations reflect that defendants considered public comment
and are attempting to accommodate certain comments within the context of achieving the stated
overall goal of the requirements. While defendants changed course and expanded the number of
exempt employers, that conduct does not reduce the deference afforded those changes. Fox
Television Stations, 556 U.S. at 514. The February 2013 proposed rules illustrate the defendants’
consideration of objections. Under those circumstances, defendants’ path “may reasonably be
discerned” Id. at 513-14.
In connection with the second interim final regulations defendants point to the following
statements contained in the Federal Register to show they considered conscience protections
under the First Amendment and the RFRA:
Nothing in these final regulations precludes employers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care providers to prescribe contraceptives is against their religious beliefs. These final regulations do not undermine the important protections that exist under conscience clauses and other religious exemptions in other areas of Federal law. Conscience protections will continue to be respected and strongly enforced.
77 FED. REG. at 8,729. Defendants, however, acknowledged with respect to the proposed rules
that the concerns of for-profit entities will not be considered:
[Defendants] do not propose that the definition of eligible organization extend to for-profit secular employers. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations.
78 FED. REG. at 8,462. Defendants’ rationale for not permitting a for-profit entity to be an
eligible organization does not, of course, comport with the court’s conclusions set forth in this
opinion. This court cannot, however, substitute its judgment for that of the rulemaking agency
when reviewing a claim under the arbitrary and capricious standard. Fox Television Stations, 556
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U.S. at 513. While the court may disagree with the conclusion that for-profit entities can never
raise conscience issues under the RFRA and the First Amendment, that disagreement is not a
sufficient basis upon which to set aside the rules under the APA. To the extent, therefore, that the
Hepler plaintiffs failed to carry their burden of pleading sufficient facts to survive defendants’
motion to dismiss with respect to their arbitrary and capricious claim, that claim must be dismissed.25
c. Contrary to Law
The Hepler plaintiffs allege that the mandate’s requirements violate several provisions of
existing law, specifically: (1) the ACA’s ban on providing abortion services, which is set forth in
§ 1303(b)(1)(A) of the ACA (42 U.S.C. §§ 18023(b)(1)(A)(i) and (ii)); (2) the Weldon
Amendment to the Consolidated Appropriations Act of 2012, P.L. 112-74, §§ 506, 507, 125 Stat. 786, 1111 (Dec. 23, 2011)26 (providing that federal agencies may not discriminate against an
institutional or individual health care entity if that entity “does not provide, pay for, provide
coverage of, or refer for abortions”); and (3) the Church Amendment to the ACA, 42 U.S.C. §
300a-7(d) (providing an exemption from any program administered by HHS for any individual
who believes that participation in such a program would violate his or her religious beliefs or
moral convictions). (ECF No. 32 ¶¶ 296-99.) Since the mandate requires health plans to cover
emergency contraception, the Hepler plaintiffs contend that the mandate, in essence, requires
coverage of abortions in violation of the above laws.
25 Because review under the APA’s arbitrary and capricious standard is necessarily fact-intensive, dismissal of the Hepler plaintiffs’ arbitrary and capricious claim is without prejudice to its reassertion if the factual record is developed with respect to that claim. See Shane Meat, 800 F.2d at 336 (emphasizing that arbitrary and capricious analysis requires the court to find “a rational connection between the facts found and the decision made”). 26 The amended complaint actually cites to an earlier version of the Weldon Amendment. Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, P.L. 110-329, 122 Stat. 3574 (Sept. 30, 2008). The cited-to section, however, does not contain the quoted language, but the Hepler plaintiffs’ briefing refers to the 2012 version of the statute, which does contain the quoted language. Therefore, the court will rely upon the current version of the statute.
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Defendants respond that the Hepler plaintiffs lack prudential standing under the APA to
challenge § 1303(b)(1) of the ACA, because they do not fall within the “zone of interests” to be
protected by the statute. (ECF No. 40 at 42) (citing Ass’n of Data Processing Serv. Orgs., Inc. v.
Camp, 397 U.S. 150, 153 (1970)). Section 1303(b)(1) of the ACA provides:
Notwithstanding any other provision of this title . . . (i) nothing in 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; and (ii) . . . the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion services] as part of such benefits for the plan year.
42 U.S.C. § 18023(b)(1)(A).
Defendants point out that § 1303(b)(1) applies to health insurance issuers27 that offer qualified
health plans,28 as those terms are defined in the ACA. The Hepler plaintiffs cannot allege that
they are a health insurance issuer, insofar as they are engaged in the business of selling lumber
products, not insurance. 42 U.S.C. § 300gg-91(b)(2). The Hepler plaintiffs are also not eligible to
purchase health insurance coverage under a qualified plan through an Exchange,29 since qualified
plans will not be available until January 1, 2014. 42 U.S.C. § 18031(b)(1). Because § 1303(b)(1)
does not apply to either the Hepler plaintiffs (as they are not an insurance issuer) or to SHLC’s
27 A health insurance issuer “means an insurance company, insurance service, or insurance organization . . . which is licensed to engage in the business of insurance in a State . . . Such term does not include a group health plan.” 42 U.S.C. § 300gg-91(b)(2). 28 A “qualified health plan” is defined at 42 U.S.C. § 18021(a)(1), and includes health plans that, among other requirements, has been certified by the health insurance exchange “through which such plan is offered,” and is offered by a licensed health insurance issuer. 42 U.S.C. § 18021(a)(1)(A), (C). Health insurance exchanges are defined at 42 U.S.C. § 18031, which provides that each state shall create a health insurance exchange no later than January 1, 2014, which: “(A) facilitates the purchase of qualified health plans; (B) provides for the establishment of a Small Business Health Options Program . . . that is designed to assist qualified employers in the State who are small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market . . .” 42 U.S.C. § 18031. A qualified employer in this context is defined as “a small employer that elects to make all full-time employees of such employer eligible for 1 or more qualified health plans offered in the small group market through an Exchange that offers qualified health plans.” 42 U.S.C. § 18032(f)(2)(A). Finally, a “small employer” is defined as “an employer who employed an average of at least 1 but not more than 100 employees on business days during the preceding calendar year and who employs at least 1 employee on the first day of the plan year.” 42 U.S.C. § 18024(b)(2). 29 See footnote 28.
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employee health insurance plan (which is not a qualified plan obtained through an Exchange), they lack standing to challenge its alleged violation.
Although the Hepler plaintiffs currently lack standing to challenge § 1303(b)(1), they could potentially fall within the zone of interests intended to be protected by that statute at some point in the future. As an employer with fewer than 100 employees, SHLC is a “small employer” potentially eligible to purchase health insurance through an exchange beginning in January 2014. 42 U.S.C. § 18024(b)(2). In the event that SHLC chooses to purchase its health insurance through an exchange, and if that qualified plan provides coverage for the objected to services, SHLC could potentially have the requisite standing at that time. At this stage, however, the Hepler plaintiffs did not indicate that they intend to take any of the above actions. Because the Hepler plaintiffs lack standing at this time to argue that the mandate is contrary to law as violating § 1303(b)(1) of the ACA, the claim will be dismissed without prejudice.
The Hepler plaintiffs’ argument with respect to the Weldon Amendment fails to state a claim for which relief can be granted. The Weldon Amendment provides:
None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, 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. Weldon Amendment, § 507(d)(1). The Hepler plaintiffs’ Weldon Amendment claim must fail because they do not point to a definition of abortion that would be applicable to that statute. The Hepler plaintiffs allege that the objected to services constitute abortion, as that term is defined by their religious beliefs. (ECF No. 32 ¶¶ 105-08, 242, 254.) Statutory terms, however, are to be construed as a matter of law. Gov’t Employees Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988) (statutory construction is a question of law when defining terms). Plaintiffs do not
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provide any legal definition of “abortion,” but rest on their allegation that some of the contraceptive products cause abortions. Defendants, on the other hand, point to regulations in the context of Title X, 42 U.S.C. § 300a-6, which do not include emergency contraception in the definition of abortion (Title X grantees are not permitted to use abortion as a family planning tool, but may use emergency contraception). See Health and Human Services, Office of Population Affairs Memorandum, available at http://www.hhs.gov/opa/title-x-familyplanning/initiatives-and-resources/documents-and-tools/opa-97-02.html (noting that “Title X grantees should consider the availability of emergency contraception the same as any other method which has been established as safe and effective”) (last visited Feb. 28, 2013). The Hepler plaintiffs did not identify any legal basis for finding that a statutory definition of abortion must include emergency contraceptives. Therefore, the court concludes that the claim based upon the Weldon Amendment is not sufficient to survive a motion to dismiss.
The Church Amendment, which is included in Title 42, Subchapter VIII, relates to “Population Research and Voluntary Family Planning Programs” administered by HHS. It provides:
No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of [HHS] if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions. 42 U.S.C. § 300a-7(d). The Church Amendment is part of a larger statutory scheme that gives authority to the HHS Secretary to “make grants and to enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services.” 42 U.S.C. § 300(a).
67

The Hepler Plaintiffs present no legal authority supporting their claim that they are “required to perform or assist in the performance” of a “health service program” covered by the statute. 42 U.S.C. § 300a-7(d). As an initial matter, only the individual Heplers are potentially covered by the Church Amendment, since it explicitly applies to individuals. The amended complaint, on the other hand, alleges that SHLC purchases its employee health insurance coverage “from a company in the health insurance market,” not from HHS or an HHSadministered health service program. (ECF No. 32 ¶ 96.) The Hepler plaintiffs do not indicate how their purchase of health insurance is related to grant funding for “voluntary family planning projects.” 42 U.S.C. § 300a-7(d). Without a showing of this connection between their actions and the projects and services subject to the Church Amendment, the Hepler plaintiffs lack standing to advance their claim that the mandate violates the Church Amendment. Ass’n of Data Processing Serv. Orgs., 397 U.S. at 153. The claim based upon a violation of the Church Amendment must therefore be dismissed. VI. CONCLUSION
For the above-stated reasons, the court concludes that defendants’ motion to dismiss will be granted in part and denied in part. With respect to Geneva, the court finds that its claims are not ripe at this time, and therefore dismisses counts I through VI without prejudice. With respect to WLH, the court finds that Hepler has standing to assert WLH’s claims and that WLH, which is not a separate entity, must be dismissed as a named plaintiff. With respect to Hepler, Kolesar and SHLC, the court finds that defendants’ motion to dismiss is denied with respect to the RFRA claim (count VII); the Free Exercise Clause claim (count VIII); and the notice and comment claim under the APA (count XII (in part). Defendants’ motion to dismiss is granted without prejudice with respect to the Establishment Clause claim (count IX); the Free Speech Clause
68

claim (count X); and the arbitrary and capricious and contrary to law claims under the APA (count XII (in part)); and is granted with prejudice (because further amendment would be futile) with respect to the Fifth Amendment Due Process Clause claim (count XI). An appropriate order follows.
ORDER AND NOW, this 6th day of March, 2013, for the reasons set forth above, it is HEREBY ORDERED that defendants’ motion to dismiss (ECF No. 39) is GRANTED IN PART as follows:
 The claims set forth in counts I through VI are dismissed without prejudice;  WLH is dismissed as a named plaintiff;  The claims set forth in count IX and count X are dismissed without prejudice;  The arbitrary and capricious and contrary to law claims set forth in count XII are
dismissed without prejudice; and  The claim set forth in count XI is dismissed with prejudice. In all other respects the motion to dismiss is DENIED.
BY THE COURT: /s/ Joy Flowers Conti Joy Flowers Conti United States District Judge
69

 
 Case 2:12-cv-00207-JFC Document 84 Filed 04/19/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR

)

)

Plaintiff,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the

)

United States Department of Health and Human )

Services, HILDA SOLIS

)

in her official capacity as Secretary of the

)

United States Department of Labor, TIMOTHY )

GEITHNER

)

in his official capacity as Secretary of the

)

United States Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES DEPARTMENT )

OF THE TREASURY

)

ORDER GRANTING PRELIMINARY INJUNCTION

Upon consideration of the motion for preliminary injunction (ECF No. 75) by plaintiffs

Wayne L. Hepler, Carrie E. Kolesar, and the Seneca Hardwood Lumber Company, Inc., (the

“moving plaintiffs”), their memorandum and affidavits in support, the parties’ briefing and oral

argument on defendants’ motion to dismiss, this court’s Memorandum Opinion and Order dated

March 6, 2013, and for the reasons set forth in the accompanying findings of fact and

conclusions of law;

IT IS HEREBY ORDERED that the moving plaintiffs’ motion for preliminary injunction

is hereby GRANTED;

Case 2:12-cv-00207-JFC Document 84 Filed 04/19/13 Page 2 of 2

IT IS FURTHER ORDERED that defendants, their agents, officers, and employees are hereby ENJOINED from pursuing any enforcement actions against or imposing any penalties upon the moving plaintiffs pursuant to 26 U.S.C. § 4980D and 29 U.S.C. § 1132 as a result of the moving plaintiffs’ noncompliance with the requirement imposed in 42 U.S.C. § 300gg-13(a)(4) that their health insurance plan or insurer provide contraception, abortifacients, sterilization, or related education and counseling in any health insurance plan offered by the Seneca Hardwood Lumber Company;
IT IS FURTHER ORDERED that the injunction hereby granted shall remain in effect until this court makes a full determination on the merits of the case, or until thirty (30) days after the United States Supreme Court or United States Court of Appeals for the Third Circuit renders a decision on the merits of this case or an adverse decision in a substantially similar case, whichever occurs first; and
IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate.

SO ORDERED. Dated: April 19, 2013

BY THE COURT:
/s/Joy Flowers Conti Joy Flowers Conti United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR

)

)

Plaintiff,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the

)

United States Department of Health and Human )

Services, HILDA SOLIS

)

in her official capacity as Secretary of the

)

United States Department of Labor, TIMOTHY )

GEITHNER

)

in his official capacity as Secretary of the

)

United States Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES DEPARTMENT )

OF THE TREASURY

)

FINDINGS OF FACT AND CONCLUSIONS OF LAW CONTI, District Judge
Pending before the court is a Motion for Preliminary Injunction (ECF No. 75), and brief in support, (ECF No. 76), filed by plaintiffs Wayne L. Hepler (“Hepler”) (individually and on behalf of WLH Enterprises (“WLH”)), Carrie E. Kolesar (“Kolesar”), and Seneca Hardwood Lumber Company, Inc. (“SLHC”), (collectively, “plaintiffs”), and the response in opposition, (ECF No. 78), filed by defendants Kathleen Sebelius, Hilda Solis, Timothy Geithner, the United

States Department of Health and Human Services (“HHS”), the United States Department of Labor, and the United States Department of the Treasury (collectively, “defendants”).
Plaintiffs seek an order protecting them from complying with the requirement that they include coverage for certain services as part of the health insurance that they provide to themselves, their employees, and their families in the plan year that begins on July 1, 2013. Plaintiffs object to the requirement in the new health care law mandating that they provide coverage for abortifacient products and contraceptives such as ella, Plan B, and intrauterine devices (“IUDs”), as well as sterilization procedures and patient education and counseling for women of reproductive capacity (the “objected to services”). For purposes of the present motion, plaintiffs argue that the law requiring them to provide the objected to services, 42 U.S.C. § 300gg-13(a)(4) (referred to generally as the “mandate”), violates the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 (the “RFRA”), and the Free Exercise Clause of the First Amendment.
On March 6, 2013, the court issued a Memorandum Opinion and Order (ECF No. 74), in which it granted in part and denied in part defendants’ motion to dismiss plaintiffs’ amended complaint. In pertinent part, the court granted the motion to dismiss with respect to plaintiff Geneva College and denied the motion to dismiss with respect to, among other claims, plaintiffs’ claims pursuant to the RFRA and the Free Exercise Clause. The parties advised the court that they wish to proceed on the submissions that were filed, and agreed to forego a preliminary injunction hearing. To that end, the matter is ripe for disposition, and the court makes the following findings of fact and conclusions of law. I. FINDINGS OF FACT1
1 The findings of fact contained herein are all derived from the allegations in the first amended complaint (ECF No. 32), which plaintiff Wayne L. Hepler (ECF No. 76-1) and plaintiff Carrie E. Kolesar (ECF No. 76-2), aver in
2

Hepler and his family (which includes Kolesar) (collectively the “Heplers”), are practicing Catholics who strive to follow Catholic beliefs and teachings in all areas of their lives, including the operation of their businesses. (ECF No. 32 ¶¶ 75-77.) The Heplers have pursued this goal by building a chapel on their business premises, displaying religious imagery in their business, making charitable donations to Catholic causes, and providing health insurance to their families and Catholic employees consistent with their beliefs. (Id. ¶¶ 82-85.) The Heplers participate extensively in both Catholic and pro-life activities. (Id. ¶¶ 86-88.) Hepler and his thirteen children are committed to the Catholic church’s teachings on human life and sexuality, including the church’s position against abortifacients, contraceptives, and sterilization. (Id. ¶ 88.)
SHLC is owned and directed by Hepler, Kolesar, and Kolesar’s six adult siblings. (Id. ¶ 89.) Hepler owns a 58% share of SHLC and Kolesar and her six adult siblings each own a 6% share. (Id.) SHLC has twenty-two full-time employees, nineteen of whom (including Hepler and Kolesar’s husband) are covered by the company’s health insurance plan. (Id. ¶ 90.) Hepler also owns and operates a sawmill as the sole proprietorship WLH, which has six full-time employees, five of whom are covered under SHLC’s health insurance plan. (Id. ¶ 91.)
The Heplers’ sincerely held religious beliefs prohibit them from intentionally participating in, paying for, facilitating, or otherwise supporting the use of abortifacient drugs, contraception, sterilization, and related education and counseling through the health insurance coverage that SHLC provides their families and employees. (Id. ¶¶ 77-82.) The SHLC health insurance plan is currently in its July 2012 plan year, and will begin its next plan year on July 1,
separate affidavits are true and correct with respect to Hepler and Kolesar (and their respective families), SHLC, and WLH. Defendants did not respond to, contest, or challenge the affidavits which assert that the factual allegations set forth in the first amended complaint are true and correct. The court, therefore, accepts those affidavits as true for the purposes of the present motion. See Williams v. Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982) (noting that “[i]t has long been recognized that a preliminary injunction may issue on the basis of affidavits and other written evidence, without a hearing, if the evidence submitted by both sides does not leave unresolved any relevant factual issue”).
3

2013. (Id. ¶ 98.) SHLC’s health insurance plan does not have grandfathered status.2 (Id. ¶ 97.)
Pursuant to the Heplers’ stated beliefs, SHLC’s health insurance plan currently does not cover
abortifacients, contraceptives and sterilization, and has not done so for several years. (Id. ¶¶ 94-
99.) Plaintiffs object to defendants’ requirement that SHLC’s nongrandfathered health plan
provide coverage for the objected to services because it will force them to purchase a health plan
that offers coverage for those services beginning in July 2013. (Id. ¶ 100.)
Plaintiffs must begin arranging and contracting for their 2013-2014 health insurance plan
prior to the beginning of the plan year on July 1, 2013. (Id. ¶ 98)
II. CONCLUSIONS OF LAW
A. The Relevant Statutes and Regulations Concerning the Objected to Services
1. The Patient Protection and Affordable Care Act of 2010
On March 23, 2010, the Patient Protection and Affordable Care Act of 2010, Pub. L. No.
111-148, 124 Stat. 119 (Mar. 23, 2010) (“ACA”) became law and an overhaul of the nation’s
healthcare system began. Section 1001 of the ACA includes specific measures related to
preventive care for women, and provides in part:
(a) In general
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
* * *
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [“HRSA”] for purposes of this paragraph.
2 Grandfathered status is defined in 45 C.F.R. § 147.140; 26 C.F.R. § 54.9815-1251T; and 29 C.F.R. § 2590.7151251, and provides that such plans do not have to provide coverage without cost sharing of “preventive health services,” which includes “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” (ECF No. 32 ¶ 53.)
4

42 U.S.C. § 300gg-13 (the “preventive care provision”). Because the ACA did not specifically
identify which preventive care services would have to be provided without cost sharing, further
rulemaking was necessary.
2. Preventive Care Services and Interim Final Regulations
On July 19, 2010, defendants (the Departments of Health and Human Services, Labor,
and Treasury) issued interim final regulations implementing the preventive care provision.
Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA, (the “first interim final regulations”), 75 FED. REG. 41,726
(Jul. 19, 2010). The first interim final regulations require all group health plans and health insurance issuers offering nongrandfathered3 group or individual health coverage to cover,
without cost sharing, the preventive care services outlined in 42 U.S.C. § 300gg-13. Id. at
41,728. The first interim final regulations directed the Department of Health and Human
Services, in conjunction with the Institute of Medicine (“IOM”), to determine what preventive
services are necessary and beneficial for women’s health and well-being. Id. The IOM was to
report its findings to the Health Resources and Services Administration (“HRSA”), which was to issue the necessary guidelines. The report issued by the IOM4 on July 19, 2011, recommended
that the HRSA guidelines include, inter alia: “[t]he full range of Food and Drug Administration
[(“FDA”)]-approved contraceptive methods, sterilization procedures, and patient education and
counseling for women with reproductive capacity.” IOM Report at 10. FDA-approved
3 The preventive services provisions do not apply to health plans that are grandfathered. A plan is grandfathered if: (1) at least one person was enrolled on March 23, 2010; (2) the plan continuously covered at least one individual since that date; (3) the plan provides annual notice of its grandfathered status; and (4) the plan has not been subject to significant changes as outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.9815-1251T(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§ 147.140(a), (g). 4 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx (Last visited Apr. 17, 2013) (“IOM Report”).
5

contraceptive methods include the objected to services, such as the drugs ella and Plan B, as well as IUDs.
3. HRSA Guidelines On August 1, 2011, HRSA adopted guidelines pursuant to the IOM recommendations5 and on August 3, 2011, again issued interim final regulations (the “second interim final regulations”). Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 FED. REG. 46,621 (Aug. 3, 2011). The second interim final regulations carve out an exemption allowing certain religious employers to avoid providing insurance coverage for the objected to services. 76 FED. REG. at 46,626 (codified at 45 C.F.R. § 147.130(a)(1)(iv)(B)). The exemption defines religious organizations as those employers that meet the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. The sections of the Internal Revenue Code cited in subsection (4) define nonprofit organizations as “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the exclusively religious activities of any religious order” that are exempt from taxation pursuant to 26 U.S.C. § 501(a).
4. Temporary Enforcement Safe Harbor Provision
5 The HRSA guidelines are available at http://www.hrsa.gov/womensguidelines/ (last visited Apr. 17, 2013).
6

After allowing the public and interested groups to comment on the second interim final
regulations, defendants adopted the definition of religious employer contained in those
regulations without change on February 15, 2012. Group Health Plans and Health Issuers
Relating to Coverage of Preventive Services Under the ACA, 77 FED. REG. 8,725, 8,727-28
(Feb. 15, 2012). The adopted final regulations (the “final regulations”) contain a temporary
enforcement safe harbor provision for nongrandfathered plans that do not qualify for the
religious employer exemption. Id. HHS issued supplemental guidance (“HHS Guidance”) with
respect to the safe harbor provision.6 The safe harbor provision provides that defendants will not
take any enforcement action against an employer, a group health plan, or a group health
insurance issuer with respect to nonexempt, nongrandfathered group health plans that fail to
cover some or all of the recommended preventive services “until the first plan year that begins on
or after August 1, 2013.” HHS Guidance, at 3. To qualify for the safe harbor provision, an
organization must meet the following criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
(3) . . . [T]he group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed [elsewhere in the HHS Guidance].
6 HHS, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf (last visited Apr. 17, 2013).
7

HHS Guidance, at 3. 5. Advance Notice of Proposed Rulemaking
Following the adoption of the final regulations and the HHS Guidance in February 2012, defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) on March 21, 2012. Certain Preventive Services Under the ACA, 77 FED. REG. 16,501 (Mar. 21, 2012). The ANPRM seeks additional public comments and sets forth “questions and ideas” on how to best provide women with access to contraceptive services without cost-sharing, while accommodating the religious liberty concerns articulated by nonexempt religious organizations. Id. at 16,503. By its own terms, the ANPRM aims to “protect . . . religious organizations from having to contract, arrange, or pay for contraceptive coverage.” Id. The ANPRM provided a ninety-day comment period ending June 19, 2012. Id.
6. Updated Guidance The HHS updated its guidance bulletin (the “Updated HHS Guidance”) on August 15, 2012 by clarifying three points: “(1) that the safe harbor is also available to non-profit organizations with religious objections to some but not all contraceptive coverage . . .; (2) that group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . .; and (3) that the safe harbor may be invoked without prejudice by non-profit organizations that are uncertain whether they qualify for the religious employer exemption.”7 The safe harbor is aimed at providing an additional year—until the first plan year beginning on
7 Department of Health and Human Services, Revised Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at n.1, available at http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Apr. 17, 2013) (“updated HHS Guidance”).
8

or after August 1, 2013—for health plans and health insurance issuers to comply with the preventive care requirement. Updated HHS Guidance at 3.
7. Proposed Rules On February 6, 2013, defendants issued proposed rules (the “proposed rules”) broadening the universe of organizations eligible for an exemption from the contraceptive requirement. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 FED. REG. 8,456, 8,462 (Feb. 6, 2013). In the proposed rules, defendants proposed an accommodation for religious organizations that object to providing contraceptive coverage. The proposed rules exclude from the contraceptive requirement those organizations that meet certain criteria: (1) “The organization opposes providing coverage for some or all of the contraceptive services required to be covered under [the final regulations] on account of religious objections;” (2) “The organization is organized and operates as a nonprofit entity;” (3) “The organization holds itself out as a religious organization;” and (4) “The organization self-certifies that it satisfies the first three criteria.” 78 FED. REG. at 8,462. In an effort to also accommodate those plan beneficiaries who may not share the beliefs of the organizations claiming the accommodation, the proposed rules also set forth proposed ways “to provide women with contraceptive coverage without cost sharing and to protect eligible organizations from having to contract, arrange, pay, or refer for contraceptive coverage to which they object on religious grounds.” Id. at 8,462-64. B. Claims Presented in the Amended Complaint
1. Substantial Burdens Plaintiffs argue that the statutory scheme outlined above violates their religious beliefs by requiring them to provide coverage for the objected to services. (ECF No. 32 ¶ 110-11.) Specifically, the Heplers, SHLC, and WLH are being forced to choose between providing health
9

insurance that is inconsistent with their beliefs or providing no insurance at all, a choice that puts them at a competitive disadvantage and forces their employees to purchase health insurance, which includes coverage for the objected to services, on their own. (Id. ¶¶ 116-22.)
The mandate imposes substantial burdens on plaintiffs’ religious beliefs that they are unable to avoid by self-insuring. (Id. ¶¶ 124-26.) Plaintiffs, as individuals and for-profit entities, are not eligible for the religious employer exemption provided in the HRSA Guidelines, 76 FED. REG. at 46,626, because defendants have not, to date, included individuals or for-profit entities within the definition of a religious employer. (ECF No. 32 ¶¶ 127-39.)
Based upon the uncertainty, plaintiffs argue that the mandate fails to protect their statutory and constitutional rights to not provide or facilitate the provision of the objected to services. (Id. ¶ 141-43.) Plaintiffs assert that the mandate impermissibly coerces them to provide coverage for the objected to services in violation of their sincerely held religious beliefs, lest they be subject to substantial fines. (Id. ¶¶ 144-45, 148-52.)
The safe harbor provision does not apply to plaintiffs because SHLC and WLH, the employers, are for-profit entities. (Id. ¶ 176.)
C. Preliminary Injunction Standard The court considers four factors in determining whether to grant a preliminary injunction. A party seeking a preliminary injunction must show: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)).
10

Although a party seeking preliminary injunctive relief must make “a clear showing that
[it] is entitled to such relief,” Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008),
demonstrating a likelihood of success on the merits requires only that the party “prove a prima
facie case, not a certainty that he or she will win.” Highmark, Inc. v. UPMC Health Plan, Inc.,
276 F.3d 160, 173 (3d Cir. 2001) (citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.3 (2d ed. 1995)).
Both parties indicated that they wish to reassert the arguments set forth in their briefing
with respect to the motion to dismiss. To the extent that defendants assert new arguments in their
briefing,8 the court will address those arguments where appropriate.
1. Likelihood of Success on the Merits9
a. Plaintiffs’ Claims Pursuant to the RFRA
Pursuant to the RFRA, the government may not “substantially burden a person’s exercise
of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O
8 Defendants’ brief in opposition to the present motion essentially asks the court to reconsider its decision with respect to the motion to dismiss, but does not set forth any additional facts or precedential caselaw to support its prior arguments. To the extent that defendants simply disagree with the court’s reasoning in its prior decision, those arguments are not appropriate for a motion to reconsider. See Williams v. City of Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998). 9 Defendants devote a considerable amount of time in their briefing to the recent motion panel decision of the Court of Appeals for the Third Circuit in Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144 (3d Cir. Feb. 7, 2013) (order denying expedited motion for injunction pending appeal). The motion in Conestoga resulted in three opinions—the opinion of the motion panel, authored by Judge Rendell, a concurring opinion authored by Judge Garth, and a lengthy dissenting opinion authored by Judge Jordan. As defendants’ implicitly concede in their briefing, however, the motion panel’s decision is not binding upon this court. See (ECF No. 78 at 4) (“the Third Circuit’s analysis is persuasive . . .” (emphasis added)). Precedential opinions of the Court of Appeals for the Third Circuit are labeled as such according to Internal Operating Procedure 5.1, and the motion panel decision in Conestoga is not so labeled. Motion panel decisions are also not binding on subsequent panels, even in the same case. Lambert v. Blackwell, 134 F.3d 506, 512 n.17 (3d Cir. 1997) (citing Third Circuit I.O.P. 9.1). The court concludes, therefore, that the panel decision, which was before this court for consideration as part of the motion to dismiss, is merely persuasive authority and is not binding upon this court. The reasoning set forth in Judge Jordan’s dissent is compelling and consistent with several other decisions of courts of appeals and district courts that have granted injunctive relief in similar cases involving challenges to the mandate. See ECF No. 76 at 4 (citing cases). The court also notes the recent decision by the Court of Appeals for the District of Columbia Circuit in Gilardi v. United States Department of Health & Human Services, No. 13-5069 (D.C. Cir. Mar. 29, 2013), in which the court of appeals reversed itself and granted, sua sponte, an injunction pending appeal despite having previously denied the same motion only days earlier.
11

Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). The government may, however, substantially burden the exercise of religion if the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Hepler plaintiffs bear the initial burden under the RFRA of establishing that application of the mandate would substantially burden a sincere religious exercise. O Centro, 546 U.S. at 426.
The court already concluded that SHLC has standing to assert the RFRA and First Amendment rights of its owners, (ECF No. 74 at 30-36), and need not readdress that issue in the context of the present motion.
i. Substantial Burden Under the RFRA, exercise of religion is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2 (citing 42 U.S.C. § 2000cc-5). Other courts have been clear that “it is not the province of the court to tell the plaintiffs what their religious beliefs are, i.e. whether their beliefs about abortion should be understood to extend to how they run their corporations or the like, or to decide whether such beliefs are fundamental to their belief system.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1293 (W.D. Okla. 2012); cf. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981) (noting that courts should be reluctant to “dissect religious beliefs” when engaging in substantial burden analysis). Therefore, the court must tread lightly when considering whether the mandate’s requirements substantially burden the plaintiffs’ exercise of religion. A challenged law substantially burdens the free exercise of religion if it compels plaintiffs “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”
12

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). A substantial burden also exists where a law “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd., 450 U.S. at 718. Even “onerous” financial costs can rise to the level of a substantial burden. See Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 392 (1990) (declining to find a substantial burden, but recognizing that one could exist under certain circumstances).
Defendants do not question the sincerity of the individual plaintiffs’ religious beliefs, but they do dispute whether the mandate’s requirements impose a substantial burden on the exercise of those beliefs. Defendants argue that the mandate’s requirements do not burden plaintiffs’ exercise of religion because the regulations only apply to group health plans and health insurance issuers, not to individuals. Without a direct requirement that the individual plaintiffs provide insurance coverage for the objected to services, defendants maintain that any burden is too attenuated to be cognizable under the RFRA. 10 Plaintiffs respond that even indirect compulsion is sufficient under the RFRA if it requires them to abandon their religious beliefs and provide the objectionable coverage in fear of being subject to financial penalties. They reject defendants’ argument that a burden on SHLC is not a burden on the individual owners and employees, as in this case the individual plaintiffs are essentially providing themselves and their own families with the objectionable coverage.
Plaintiffs rely upon several Supreme Court decisions that they argue support their claims that they have suffered a substantial burden under the RFRA.11 First, in Yoder, 406 U.S. at 234-
10 Defendants make this same argument in their most recent brief. See (ECF No. 78 at 7-8.) In support, defendants cite several court decisions which actually cut against their position, insofar as courts of appeals in four of those cases granted motions for preliminary injunctive relief pending appeal. (Id. at 7) (citing decisions granting injunctive relief from the Courts of Appeals for the Seventh and Eighth Circuits). 11 The Court of Appeals for the Third Circuit has instructed that courts should look to free exercise decisions issued prior to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), when interpreting the RFRA, since it was enacted to codify the standard used prior to the Smith decision. Conestoga, 2013
13

35, the Supreme Court held that a state compulsory education law imposing criminal fines for failing to remain in school until age sixteen violated the free exercise rights of the Old Order Amish. In Sherbert v. Verner, 374 U.S. 398, 410 (1963), the Supreme Court held that a state could not withhold unemployment benefits from a worker who refused employment on grounds that working on Saturdays violated the worker’s religious beliefs. Finally, in Thomas v. Review Board, 450 U.S. at 719, the Supreme Court again found that a state could not deny unemployment benefits to a worker who terminated his employment because his religious beliefs forbade his participation in the production of tanks. Plaintiffs maintain that these decisions support their argument that even indirect burdens on religious exercise are substantial enough to be cognizable under the RFRA.
Plaintiffs are faced with having to choose between violating their deeply held religious beliefs and being forced to cause SHLC—a closely held corporation controlled by the Heplers— to terminate their health insurance coverage, which also burdens their religious exercise. (ECF No. 32 ¶¶ 116-24.) This kind of Hobson’s choice is similar to that faced by the plaintiff in Sherbert, who was “force[d] . . . to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Sherbert, 374 U.S. at 404. Here, the Hepler plaintiffs are unable to enjoy the benefits of providing the Heplers and their families health insurance that is free of the coverage for the objected to services. Like in Yoder, plaintiffs contend that they would be subject to a financial penalty if they were forced to drop the SHLC health insurance plan and compensate the Hepler Entities’ employees for the purchase of their own equivalent plans. (ECF No. 32 ¶ 123.) In the context of a small, closely-held corporation and a sole
WL 140110, at *10 n.13 (citing Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 176 (3d Cir. 1999)).
14

proprietorship, these choices and the attendant consequences can have a significant impact on the health of those businesses and their owners.
Thomas is also instructive with respect to defendants’ argument that the burden on the Hepler plaintiffs is too attenuated to be substantial. In addressing whether a pacifist’s objection to war was too remote from his former occupation assembling tanks, the Supreme Court noted that “Thomas drew a line, and it is not for [the Court] to say that the line he drew was an unreasonable one.” Thomas, 450 U.S. at 715. The Court instructed that “[c]ourts should not undertake to dissect religious beliefs” when analyzing substantial burden questions. Id. In the present case, the Heplers cause SHLC (which the court found could assert the rights of its owners) to purchase insurance for its employees and provide that coverage to WLH’s employees. In this way, the coverage is provided to the Heplers and their families, who’s sincerely held religious beliefs prevent them from providing coverage which violates their exercise of religion.
It is also important to note that plaintiffs’ position with respect to the mandate’s requirements is more subtle than defendants and many courts recognize. (ECF No. 62 at 3) Compare Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323 at *13 (D. D.C. Nov. 16, 2012) (“[t]he plaintiffs’ specific objection is not simply to the use of the contraceptives at issue, but to ‘providing coverage for abortifacients and related education and counseling in [the plaintiffs’] health insurance plan”); Grote Indus., LLC v. Sebelius, No. 12134, 2012 WL 6725905 at *6 (S.D. Ind. Dec. 27, 2012) (“[w]e acknowledge that Plaintiffs object not just to the use of contraceptives, but to the coverage itself” (emphasis in original)) with Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110 at *13 (E.D. Pa. Jan. 11, 2013) (“the core of the [plaintiffs’] religious objection is the effect of particular contraceptives on a fertilized egg”); O’Brien v. United States Dep’t of Health and Human
15

Services, No. 12-cv-476, 2012 WL 4481208 at *6 (E.D. Mo. Sept. 28, 2012) (“[t]he burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [plaintiffs’] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion” (emphasis in original)). Plaintiffs object to providing coverage for the objected to services, not the payment for or use of such items. The objection, therefore, is less attenuated than defendants maintain.
The Heplers explicitly object to the requirement that they through the Hepler Entities provide the objectionable coverage to themselves and their families. (ECF No. 32 ¶ 80.) Regardless of who purchases the insurance in question in this case—whether it be SHLC (acting on behalf of the Heplers), or the Heplers themselves—that insurance will necessarily include coverage for the objected to services, thus imposing a substantial pressure on the Heplers to “modify [their] behavior and to violate their beliefs” by either giving up their health insurance generally or providing the objectionable coverage. Thomas, 450 U.S. at 718. It is not, as defendants suggest, merely a question whether plaintiffs object to third parties’ decisions with respect to using or purchasing the objected to services. Instead, plaintiffs’ objection relates to whether the Heplers and SHLC will be forced to provide coverage for the objected to services in the first place. This is a quintessential substantial burden, and plaintiffs demonstrated that they are likely to succeed on the merits with respect to the substantial burden issue.
ii. Compelling Government Interest/Least Restrictive Means Plaintiffs demonstrated that they are likely to succeed in showing that the mandate’s requirements impose a substantial burden on their exercise of religion, and now the court must determine whether the mandate’s requirements serve “interests of the highest order.” Yoder, 406
16

U.S. at 215. The government bears the burden of demonstrating a compelling interest at this stage, since “the burdens at the preliminary injunction stage track the burdens at trial.” O Centro, 546 U.S. at 429-30 (analyzing the applicable burdens under the RFRA). Defendants argue that the mandate’s requirements serve two complementary compelling interests—namely the need to promote public health and the need to promote gender equality. Few would argue that promoting the public health is not a compelling government interest. See Mead v. Holder, 766 F. Supp. 2d 16, 43 (D. D.C. 2011) (acknowledging that, in the context of the ACA, “the Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets”). Plaintiffs do not appear to seriously dispute that public health and gender equality can, in certain circumstances, be compelling government interests.
Plaintiffs instead argue that defendants’ proffered interests are too vague and general to satisfy a strict scrutiny analysis. In construing claims pursuant to the RFRA, courts must look “beyond broadly formulated interests justifying the general applicability of government mandates and [scrutinize] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro, 546 U.S. at 431. Under the RFRA, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 420 (citing 42 U.S.C. § 2000bb-1(b)). Defendants in the present case fail to show how exempting SHLC from the mandate will “seriously compromise [the government’s] ability to administer the program.” Id. at 435.
In O Centro, the Supreme Court found that the government failed to make a showing that a ban on the use of a hallucinogenic substance served a compelling interest as applied to a Native American tribe that used the substance as part of its religious services. Id. at 439. The Court
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relied heavily on similar religious exemptions granted with respect to the use of peyote by “hundreds of thousands” of members of the Native American Church, and found that such broad exemptions weighed heavily against finding a compelling interest. Id. at 433-34. In light of the myriad exemptions to the mandate’s requirements already granted and conceding that the requirement does not include small employers similarly situated to SHLC, the requirement is “woefully underinclusive” and therefore does not serve a compelling government interest. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002).
Plaintiffs and several other courts addressing similar challenges to the mandate’s requirements point out that over 190 million individuals have already been exempted from the mandate’s requirements as a result of the grandfathering provisions in the ACA. E.g. Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) (“[t]he government has exempted over 190 million health plan participants . . . from the preventive care coverage mandate”); Tyndale House, 2012 WL 5817323, at *18 (“Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone.” (emphasis in original)). Defendants argue that the grandfathering provision is merely temporary, and is aimed at easing in the requirements imposed by the ACA.12 While true, the mere fact that defendants granted such a broad exemption in the first place severely undermines the legitimacy of defendants’ claim of a compelling interest.
In addition to the grandfathering exemption, the ACA contains several other provisions that explicitly or implicitly exclude many other individuals and entities from the mandate. First, the ACA recognizes an exemption for members of a “religious sect or division” that objects to
12 Defendants argue that 190 million is a “vast overstatement of the total number of individuals in grandfathered plans.” (ECF No. 78 at 9 n.6.) Accepting the estimates provided by defendants, more than 90 million employees will remain exempt from the mandate by the end of 2013. See Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 FED. REG. 34,538, 34,552 (Jun. 17, 2010).
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accepting public or private insurance funds. 26 U.S.C. § 5000A(d)(2)(A).13 Defendants point to
no evidence indicating why granting an exemption for entities like SHLC would severely
undermine its alleged compelling interest. As defendants suggest in their briefing, the number of
individuals and entities subject to narrow religious exemptions like plaintiffs seek in this case,
and like the exemption contained in 26 U.S.C. § 5000A(d)(2)(A), is often discrete and “‘readily
identifiable.’” (ECF No. 78 at 10-11.)
Second, defendants exempted more traditional religious employers from the requirement
under pressure from other religious groups. 76 FED. REG. at 46,625 (acknowledging that
amendments to the interim final rules were necessary in light of comments by religious
employers objecting to the mandate). Third, SHLC itself even qualifies to be excused from
providing any kind of health insurance insofar as it is defined as a small employer under the
ACA. See 42 U.S.C. § 18024(b)(2). As a small employer, SHLC is exempt from the requirement
that it provide health insurance to its employees at all. 26 U.S.C. § 4980H(c)(2)(A) (imposing
penalties on employers with fifty or more full-time employees that fail to provide health insurance coverage).14 Fourth, in response to intense public pressure, defendants proposed rules
in an attempt to broaden the religious institutions’ exemption. 78 FED. REG. at 8,462. In light of
the myriad exemptions, the “[mandate] cannot be regarded as protecting an interest ‘of the
highest order,’” particularly in a case like this where “it leaves appreciable damage to that
supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 547 (1993). The tens of millions of individuals who remain unaffected by
13 Defendants argue that this provision does not apply to the mandate; however, the provision provides an exemption to the requirement that individuals maintain a certain level of health insurance coverage under the ACA. To the extent that those exempted individuals would otherwise purchase insurance pursuant to a group health plan that is subject to the mandate, they are, in essence, exempt from the mandate’s requirements. 14 Defendants argue that this provision also does not provide an exemption to the mandate. To the extent that small employers are not required to choose between providing health insurance coverage subject to the mandate and paying substantial financial penalties, this provision implicates the mandate by excusing some employers from being forced to make that choice.
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the mandate’s requirements contradict any notion that the government’s interests are as compelling as defendants argue.
As shown above, defendants failed to meet their burden with respect to the compelling interest prong and the court’s analysis could end with that conclusion. O Centro, 546 U.S. at 42930 (where the government fails to meet its burden under the compelling interest test, the court need not address the least restrictive means prong of the analysis). The court notes, however that the scheme set forth in the proposed rules calls into serious question whether the mandate is the least restrictive means of achieving the government’s allegedly compelling interest.
Although defendants suggest that an exemption for entities like SHLC would prevent female employees of exempt entities from receiving coverage for the objected to services, the scheme in the proposed rules will provide coverage for those services to female employees who choose to use them. 78 FED. REG. at 8,462-64. For example, with respect to self-insured plans, the proposed rules suggest several approaches for providing coverage for female employees, each involving separate health insurance issuers that will provide individual health insurance policies for contraceptive coverage for female plan participants. Id. at 8,643-44. Defendants offer no reason why the scheme outlined in that proposed rule could not be applied to entities like SHLC. In light of the proposed rules, which show there is a less restrictive means of imposing the mandate, and that defendants did not show that the mandate furthers a compelling government interest with respect to plaintiffs, plaintiffs demonstrated that they are likely to succeed on the merits of their claim pursuant to the RFRA.
b. Plaintiffs’ Free Exercise Clause Claims In light of the court’s conclusion that plaintiffs showed a likelihood of success on the merits of their claim pursuant to the RFRA, the court will refrain from addressing plaintiffs’
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claims pursuant to the Free Exercise Clause. Hagans v. Lavine, 415 U.S. 528, 546 n.12, 547 (1974) (acknowledging the “ordinary rule that a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available”); see Tyndale House, 2012 WL 5817323, at *4 n.7 (where the court found that the plaintiffs had made a showing of likelihood of success on the merits under the RFRA, as well as strong showings with respect to the other preliminary injunction requirements, it only addressed the merits of the RFRA claim).
2. Irreparable Harm to Plaintiffs Irreparable harm is an injury that cannot be adequately compensated at a later date in the ordinary course of litigation. The Supreme Court has held, and defendants concede, that “[t]he loss of First Amendment freedoms,” or a violation of the RFRA, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).15 This is particularly true when plaintiffs have made a strong showing that they are likely to succeed on the merits of a constitutional claim. See Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581, 596 (W.D. Pa. 2009) (citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.1 (2d ed. 1995)). As demonstrated by the discussion above, the court concludes that because coverage must be obtained by July 1, 2013, plaintiffs will be irreparably harmed if they are forced either to forgo providing coverage or to violate their sincerely held religious beliefs by contracting for and including the objected to services in the health care insurance that they provide to themselves, their employees, and their families. Because the harm that plaintiffs will suffer is a result of at
15 As noted in Tyndale House, 2012 WL 5817323, at *18, the same rights are at issue in both the RFRA and in First Amendment cases, because RFRA “covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment. Id. (citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d, 546 U.S. 429 (2006); see Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (citing Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)).
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least a statutory violation, denial of the requested relief will result in the loss of those freedoms, which “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. 373. This factor weighs strongly in favor of granting the requested relief.
3. Irreparable Harm to Defendants Defendants will suffer little, if any, harm should the requested relief be granted. Defendants have already granted significant exemptions to the mandate, and continue to exempt others for limited periods of time pursuant to the non-enforcement safe harbor provision. The requested relief in the present case will maintain the status quo until the statutory and constitutional questions raised by plaintiffs and other similarly-situated individuals and entities can be resolved. Kos Pharms., 369 F.3d at 708 (quoting Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990)). As plaintiffs point out in their notice of supplemental authorities (ECF No. 79), defendants, in other cases where similarly-situated individuals and entities have challenged the mandate, have acquiesced to the imposition of injunctive relief. Id. (citing Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-00092, ECF No. 41 (E.D. Mo. Mar. 11, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036, ECF No. 9 (W.D. Mo. Feb. 28, 2013)); see also Hall v. Sebelius, No. 13-0295, ECF No. 10 (D. Minn. Apr. 2, 2013); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462, ECF No. 18 (E.D. Mo. Apr. 1, 2013. It strikes the court that defendants cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases. In light of the exemptions granted, and defendants’ position with respect to injunctive relief in other cases, this factor weighs strongly in favor of granting the requested relief. 4. Public Interest
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The public interest will likewise benefit if the court grants the requested relief, because “[t]here is a strong public interest in protecting fundamental First Amendment rights.” Trefelner, 655 F. Supp. 2d at 598. That strong interest includes fundamental religious rights codified by statute in the RFRA. Kikumura, 242 F.3d at 963. “‘As a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.’” Ramsey v. City of Pittsburgh, 764 F. Supp. 2d 728, 734-35 (W.D. Pa. 2011) (citing Am. Tel. and Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994)).
Defendants argue that the public interest will be harmed if those individuals covered by SHLC’s health insurance plan are “deprived of the benefits of obtaining a health plan through their employer that covers the full range of recommended contraceptive services.” (ECF No. 78 at 14.) Defendants overlook, however, the fact that SHLC’s health insurance plan already does not cover the objected to services. If the requested relief is granted, nothing will change. The government already provides the objected to services for free or at a reduced cost to many individuals—and may continue to do so. This factor, therefore, weighs in favor of granting preliminary injunctive relief.
5. Balancing Harms Plaintiffs showed that they are likely to succeed on the merits of their RFRA claim; they will suffer irreparable harm absent injunctive relief; and the public interest favors granting injunctive relief. In light of the exemptions granted and the position taken by defendants in other similar cases, the harm to defendants is not significant. These showings lead the court to conclude that the balance of the factors weighs heavily in favor of granting the requested relief. III. CONCLUSION
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For the reasons set forth herein, plaintiffs’ motion for a preliminary injunction will be GRANTED. An appropriate order will follow.
April 19, 2013 BY THE COURT: /s/Joy Flowers Conti Joy Flowers Conti United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR

)

)

Plaintiff,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the

)

United States Department of Health and Human )

Services, HILDA SOLIS

)

in her official capacity as Secretary of the

)

United States Department of Labor, TIMOTHY )

GEITHNER

)

in his official capacity as Secretary of the

)

United States Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES DEPARTMENT )

OF THE TREASURY

)

MEMORANDUM OPINION AND ORDER CONTI, District Judge
Pending before the court is the Motion for Reconsideration (ECF No. 81) filed by plaintiff Geneva College (“Geneva”). Attached to Geneva’s motion is the Declaration of Kenneth A. Smith (ECF No. 81-1), Geneva’s president. Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, the United States Department of Health and Human Services (“HHS”), the United States Department of Labor, and the United States Department of the Treasury (collectively, “defendants”) filed a response in opposition. (ECF No. 85.) The present motion

seeks reconsideration of the portion of this court’s Memorandum Opinion and Order dated
March 6, 2013, (ECF No. 74), which dismissed Geneva’s claims without prejudice for lack of
ripeness.
I. Background
The present case involves Geneva’s challenge to the requirement that it include coverage
for certain preventive services as part of the health insurance plans that it offers to its employees
and students. Geneva objects to the requirement in the Patient Protection and Affordable Care
Act of 2010, Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010) (“ACA”) mandating that it
provide health insurance coverage for abortifacient products and contraceptives such as ella, Plan
B, and intrauterine devices, as well as sterilization procedures and patient education and
counseling for women of reproductive capacity (referred to collectively as the “objected to
services”). The ACA’s requirement that health insurance plans provide coverage for the objected
to services is contained in 42 U.S.C. § 300gg-13(a)(4) (referred to generally as the “mandate”).
As the court discussed in its prior opinion, defendants have promulgated certain final and
proposed regulations as part of implementing the mandate. (ECF No. 74 at 6-11.) Most pertinent
to the present motion are the proposed rules issued February 6, 2013, which purport to offer an
accommodation to religious entities like Geneva that do not fit the definition of a “religious employer”1 set forth in final rules promulgated August 3, 2011. The February 6, 2013 proposed
rules set forth a proposed accommodation for religious organizations that object to providing
1 The religious employer exemption defines religious organizations as employers that meet the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 FED. REG.46,621, 46,626 (Aug. 3, 2011). Geneva alleges that it is not subject to the religious employer exemption. (ECF No. 32 ¶ 129.) The religious employer exemption is a final rule that will be binding on Geneva beginning August 1, 2013.
2

contraceptive coverage, including religious institutions of higher education. They exclude from the mandate organizations that meet certain criteria: (1) “The organization opposes providing coverage for some or all of the contraceptive services required to be covered under [the mandate] on account of religious objections;” (2) “The organization is organized and operates as a nonprofit entity;” (3) “The organization holds itself out as a religious organization;” and (4) “The organization self-certifies that it satisfies the first three criteria.” Coverage of Certain Preventive Services Under the Affordable Care Act, 78 FED. REG. 8,456, 8,462 (Feb. 6, 2013).
In the court’s previous opinion, it determined that Geneva’s claims were not ripe pursuant to the three-prong test set forth by the Court of Appeals for the Third Circuit in Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990). Geneva’s claims were found to be unripe based upon: (1) the uncertainty created by the ongoing administrative rules process; (2) defendants’ assurances in this and other cases that the final rules implementing the mandate would never be enforced against entities like Geneva; and (3) defendants’ proposed rules, which the court interpreted as potentially alleviating the alleged burdens imposed by the mandate on entities like Geneva. The court acknowledged that if its understanding of how Geneva would view the impact of the proposed rules was incorrect, Geneva could file a motion for reconsideration. (ECF No. 74 at 27 n.15.)2
Geneva took the court up on its offer and now argues that its claims are ripe because: (1) its objection to the mandate remains unchanged despite the issuance of the proposed rules; and (2) it has already begun negotiating the terms of its student health insurance plan for the 20132014 plan year (which begins on August 1, 2013 (ECF No. 32 ¶ 74)), and must now choose
2 The court acknowledges that Geneva’s claims, as presently set forth in the First Amended Complaint, do not challenge the proposed rules. To the extent, however, that the proposed rules and other developments subsequent to the filing of the First Amended Complaint may be relevant to the ripeness of Geneva’s claims, the court will consider them as necessary. See Buckley v. Valeo, 424 U.S. 1, 114-17 (1976) (ripeness inquiry may require the court to consider events occurring after the filing of the complaint).
3

between making available insurance subject to the objectionable proposed rules and eliminating its student health insurance plan altogether. (ECF No. 81-1.)
Defendants respond that “Geneva cannot create jurisdiction over its challenge to the current regulations, which will never be enforced against it, by asserting that it will object to any new rules defendants promulgate.” (ECF No. 85 at 6.)3 In support, defendants cite decisions from several courts across the country finding that claims by entities similar to Geneva are not yet ripe. (Id. at 7-8.) Defendants also argue that the proposed rules are not final agency action and are not subject to judicial review. (Id. at 3-5.) II. Standard of Review
A motion to reconsider “must rely on at least one of three grounds: 1) intervening change in controlling law, 2) availability of new evidence not previously available, or 3) need to correct a clear error of law or prevent manifest injustice.” Waye v. First Citizen’s Nat’l Bank, 846 F. Supp. 310, 313-14 (M.D. Pa. 1994), aff’d, 31 F.3d 1175 (3d Cir. 1994). By reason of the interest in finality, at least at the district court level, motions for reconsideration should be granted sparingly; the parties are not free to relitigate issues the court has already decided. Rottmund v. Continental Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992). Stated another way, a motion for reconsideration is not properly grounded in a request for a district court to rethink a decision it, rightly or wrongly, has already made. Williams v. Pittsburgh, 32 F. Supp. 2d 236, 238 (W.D. Pa. 1998). “Motions for reconsideration may not be used ‘as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided.’” Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 586 (E.D. Pa. 2008) (citing
3 The court notes that with this argument, defendants attempt to have things both ways. On the one hand, defendants make assurances that the regulations Geneva is challenging will never be enforced against it, but on the other hand, defendants insist that Geneva must wait to challenge the proposed rules until defendants finalize them. Given Geneva’s precarious position with respect to negotiating for a new student health insurance plan, discussed below, the situation is untenable, and the court will grant Geneva’s motion to reconsider.
4

Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990)). Such motions may not be “‘used to revisit or raise new issues with the benefit of ‘the hindsight provided by the court’s analysis.’’” Id. (citing Marshak v. Treadwell, No. 95-3794, 2008 WL 413312 at *7 (D. N.J. Feb. 13, 2008)). With regard to the third ground, litigants are cautioned to “‘evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant.’” Waye, 846 F. Supp.at 314 n.3 (citing Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). III. Discussion
A. Geneva’s Basis for Reconsideration Geneva’s motion is primarily directed at the short timeframe within which it must now negotiate the terms of its student health insurance plan. The next plan year for the student health insurance plan begins on August 1, 2013. See ECF No. 32 ¶ 74. Kenneth A. Smith, Geneva’s president, asserts in his declaration that, as of April 5, 2013, “officials have already been communicating with First Risk Advisors about the student health plan for the 2013-14 school year.” (ECF No. 81-1 ¶ 2.) Based upon those discussions, Geneva determined that “[t]here is a significant probability that [it] will simply cease facilitating health insurance coverage for its students . . . given the moral and religious unacceptability of the ‘accommodation’ set forth in the [proposed rules].” (Id. ¶ 4.) If Geneva chooses to eliminate its student health insurance plan, it must provide notice to its students no later than May 13, 2013. (Id. ¶ 6.) Geneva identifies no specific grounds for reconsideration upon which it bases the present motion (i.e. newly available evidence, etc.). Courts have found that “[t]o support a motion for reconsideration on the basis of newly available evidence, the movant must ‘show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could
5

not with reasonable diligence have discovered and produced such evidence [during the pendency of the motion].’” Cabrita Point Dev., Inc. v. Evans, Nos. 2006-103, 2006-109, 2009 WL 3245202 at *2 (D. V.I. Sept. 30, 2009) (second alteration in original) (quoting Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)). To the extent that the passage of time since the filing of the initial complaint now impacts the timing of the negotiations for Geneva’s 2013-14 student health insurance plan and in light of the potential impact of the proposed rules on decisions surrounding its student health plan, that information presents newly available evidence appropriate for reconsideration.
The crux of Geneva’s concerns appear to be that the proposed rules do not moot the issues it raised in the complaint, and it must finalize its student health insurance plan before August 1, 3013. Defendants did not indicate that the final rules will be implemented in time for Geneva to meet that deadline. To the extent that those new facts impact the court’s previous conclusions, the court will reconsider whether Geneva’s claims are now ripe for judicial review.
B. Ripeness Inquiry under the Step-Saver Framework The ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves over disagreements over administrative policies,” and “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Underpinning the ripeness doctrine are considerations of “whether the facts of the case are ‘sufficiently developed to provide the court with enough information on which to decide the matter conclusively,’ and whether a party is ‘genuinely aggrieved so as to avoid the expenditure of judicial resources on matters which have caused
6

harm to no one.’” Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (citing Peachlum v. City of York, Pa., 333 F.3d 429, 433-34 (3d Cir. 2003)).
In Abbott Labs, the United States Supreme Court set forth the two fundamental considerations in determining ripeness: (1) “the fitness of the issues for judicial decision;” and (2) “the hardship to the parties of withholding court consideration.” Abbott Labs, 387 U.S. at 149. In the context of a pre-enforcement declaratory judgment action, the Court of Appeals for the Third Circuit refined the Abbott Labs test, requiring courts to consider: (1) the adversity of the parties’ interests; (2) the conclusiveness of the judgment with respect to the legal relationship between the parties; and (3) the practical help or utility of the judgment. Step-Saver, 912 F.2d at 647.
1. Adversity of Interest To satisfy the first prong of the Step-Saver framework, “the party seeking review need not have suffered a ‘completed harm’ to establish adversity of interest . . . it is necessary that there be a substantial threat of real harm and that the threat ‘must remain ‘real and immediate’ throughout the course of the litigation.’” Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463 (3d Cir. 1994) (internal citations omitted) (emphasis added). “[A] potential harm that is ‘contingent’ on a future event occurring will likely not satisfy this prong of the ripeness test.” Pittsburgh Mack Sales & Serv. v. Int’l Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185, 190 (3d Cir. 2009) (citing Step Saver, 912 F.2d at 647-48). If a subsequent event removes the potential harm, then the controversy becomes speculative and the claim is no longer ripe. Presbytery of N.J., 40 F.3d at 1463. The additional facts set forth by Geneva indicate that its interests are now sufficiently adverse to defendants’ interests for two reasons. First, Geneva maintains its objection to the
7

proposed rules on the basis that, in the proposed rules’ current form, defendants took a “smoke
and mirrors” approach to accommodating those with religious objections to the mandate. The
“contingency” the court previously relied upon—i.e. that the proposed rules would ultimately
render Geneva’s claims unripe, therefore, does not appear to be the case. Specifically, Geneva
objects to the requirement that it directly
facilitate objectionable coverage by providing and paying for a plan that is itself necessary for the employee to obtain the [objected to services], . . . nor is it apparently ‘free’ since a variety of costs contained in the Mandate would necessarily be passed onto the employer through premiums and/or administrative charges.
(ECF No. 32 ¶ 162) (addressing the “compromise” offered by President Barack Obama at a press
conference in February 2012 which set forth an accommodation similar to that in the proposed rules).4 In light of Geneva’s objection to providing health plans that act as a “ticket” to obtaining
coverage for the objected to services, the proposed rules do not assuage Geneva’s concerns.
Notwithstanding the temporary enforcement safe harbor, which remains in effect only until
August 1, 2013, the regulatory scheme implementing the mandate continues to be objectionable
to Geneva.
Second, Geneva is suffering real and immediate harm now that it is in the process of
contracting for its student health insurance plan. The court previously held that Geneva’s
concerns with respect to the mandate were “contingent” on an event that was unlikely to occur
(namely, that the final rules would not be enforced against it), and therefore its claims were not
ripe. (ECF No. 74 at 25.) The new facts set forth by Geneva illustrate that it must decide now
4 On February 10, 2012, President Obama announced that his administration would consider an accommodation whereby insurance companies for entities that object to providing the objected to services would provide the services directly to women who seek them, “with no role for religious employers who oppose contraception.” Press Release, The White House, Women’s Preventive Services and Religious Institutions (February 10, 2012) (available at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheet-women-s-preventive-services-and-religiousinstitutions (last visited May 6, 2013)). The proposed accommodation tracks closely the accommodation set forth in the proposed rules.
8

whether to continue providing a student health insurance plan and it must make that decision in advance of defendants’ August 1, 2013 deadline to publish final rules. With the contingency thus removed, Geneva is now suffering a real and immediate harm that is ripe for adjudication.
As articulated by Geneva’s president, the college is now being forced to choose—in a very short timeframe—between making available student health insurance that remains objectionable despite the proposed rules, and foregoing student health insurance altogether in response to the final rules that will be imposed beginning on August 1, 2013. (ECF No. 81-1.) The negotiating process surrounding this decision has already begun, and is ongoing. (Id.) Where an administrative action (such as the proposed rules) “causes a change in the day-to-day behavior of the complaining party,” the claims are ripe. 5 JACOB A. STEIN, GLENN A. MITCHELL & BASIL J. MEZINES, ADMINISTRATIVE LAW, § 48.04 (2012) (hereinafter ADMINISTRATIVE LAW) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81 (1978)). Here, Geneva’s ability to negotiate is fundamentally impacted by the final rules and the proposed rules, none of which alleviate its religious objections to the mandate. Geneva cannot, therefore, simply carry on as though nothing will happen. Geneva must make a determination now based upon defendants’ mandate as it stands, which remains at odds with Geneva’s belief system in spite of the proposed rules. Geneva raises objections to both the compromise from February 2012 and the proposed rules from February 2013. Given the existing final regulations and the similarity in the proposals, the threat of harm faced by Geneva is presently “real and immediate.” See Presbytery of N.J., 40 F.3d at 1463. The adversity of interest prong is satisfied.
2. Conclusiveness of Judgment With respect to the conclusiveness of judgment prong, it is significant that the proposed rules took a substantial step toward finalizing the regulations that will apply to Geneva—
9

regulations that Geneva maintains are objectionable despite the proposed accommodation. The
Court of Appeals for the Third Circuit has held that the conclusiveness inquiry requires the court
to determine whether there is a “‘real and substantial controversy admitting of specific relief
through a decree of conclusive character, as distinguished from an opinion advising what the law
would be upon a hypothetical set of facts.’” Step-Saver, 912 F.2d at 649 (citing Aetna Life Ins.
Co. v. Haworth, 300 U.S. 227, 241 (1937)). Courts acknowledge, however, that “[t]he
requirement of concreteness has some play in the joints.” Presbytery of N.J., 40 F.3d at 1463.
From Geneva’s perspective, the facts at the present time are sufficiently developed to be ripe for
decision. Defendants contend, however, that the regulations implementing the mandate are not
final rules, and therefore the court cannot make a conclusive judgment at this time.
The conclusiveness factor of the Step-Saver test overlaps, for present purposes, with the finality requirement articulated by the Supreme Court in the Abbott Labs decision.5 Abbott Labs,
387 U.S. at 149-50. Finality requires that an agency action be sufficiently final such that it
affects the parties “in a concrete way.” Id. at 148. Courts assessing finality of an administrative
action
should reflect a pragmatic and flexible approach. . . . The agency’s characterization of the action is not decisive. An agency order lacking immediate legal effect may have sufficient legal consequences to be considered final, even though it may not be the last step the agency will take.
ADMINISTRATIVE LAW, § 48.03[1] (emphasis added). The Supreme Court has acknowledged:
The possibility of further proceedings in the agency . . . does not, in our view, render the orders less than ‘final.’ . . . Our cases have interpreted pragmatically the requirement of administrative finality, focusing on whether judicial review at
5 The Court of Appeals for the Third Circuit has held that the “Step-Saver rubric is a distillation of the factors most relevant to the Abbott Labs considerations. . . . Adversity and conclusiveness apparently are subsumed under the ‘fitness’ prong of the Abbott Labs test, while utility is relevant both to ‘fitness’ and ‘hardship.’” NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 342 n.9 (3d Cir. 2001). The finality requirement seems to fit with the conclusiveness factor in the present case because the degree to which the proposed rules are final will dictate whether the court is rendering a decision on a “hypothetical set of facts,” i.e. whether the mandate in its present form applies to Geneva. Step-Saver, 912 F.2d at 649.
10

the time will disrupt the administrative process. Review of the agency’s decision at this time will not disrupt administrative proceedings. . . . The agency’s determination . . . represented a definitive statement of its position, determining the rights and obligations of the parties. Bell v. New Jersey & Pennsylvania, 461 U.S. 773, 779-80 (1983) (internal citations omitted). Likewise, in Lauderbaugh v. Hopewell Township, 319 F.3d 568, 574-75 (3d Cir. 2003), the Court of Appeals for the Third Circuit addressed the finality requirement and found that a municipal official’s decision that prohibited installation of a mobile home was a final decision ripe for judicial review, despite the possibility that the decision could change on appeal to the zoning hearing board. Lauderbaugh, 319 F.3d at 574-75 (noting that “[the defendant] cannot treat its [administrative] decision as final enough to force a significant hardship upon [the plaintiff] . . . but not final enough to be ripe for adjudication”). Defendants maintain that the proposed rules “are just that—proposals” and thus have no binding legal effect. (ECF No. 85 at 3.) Defendants cite several court decisions in support of the proposition that “this Court lacks jurisdiction over any challenge plaintiff could mount to the [proposed rules].” (Id.) This formalistic approach belies, however, the Supreme Court’s “pragmatic” and “flexible” approach to determining whether an administrative rule is final for justiciability purposes. Abbott Labs, 387 U.S. at 149. Courts acknowledge that the possibility of further agency proceedings is not necessarily dispositive of the finality issue. Bell, 461 U.S. at 779. Courts have also found that the label given to a particular agency decision is not conclusive. Fidelity Television, Inc. v. F.C.C., 502 F.2d 443, 448 (D.C. Cir. 1974). As the court in Fidelity Television noted: The principle of finality in administrative law is not, however, governed by the administrative agency’s characterization of its action, but rather by a realistic assessment of the nature and effect of the order sought to be reviewed. . . . Hence, ‘a final order need not necessarily be the very last order’ in an agency proceeding
11

. . . but rather, is final for purposes of judicial review when it ‘impose(s) an obligation, den(ies) a right, or fix(es) some legal relationship. Id. (footnotes omitted) Applying the flexible and pragmatic approach suggested in Abbott Labs, the court notes that the proposed rules have been formally published in the Federal Register and are the most upto-date statement of defendants’ position. Beginning in February 2012, a full year prior to the issuance of the proposed rules, President Barack Obama offered a “compromise” for religious institutions that did not qualify for the religious employer exemption from the mandate—a proposal that is quite similar to the proposed rules. Given the lack of change in the rules as they have developed, the court concludes that the rules are sufficiently final to be the basis for judicial decision. At this time all plaintiffs like Geneva have to rely on until a final rule is published are the existing final rules and the proposed rules. Geneva will soon be subject to the existing final rules, which contain no exemptions relevant to entities like it. The existing final rules are challenged in the present lawsuit, but the question remains whether the proposed rules will moot any remaining issue. Geneva claims they do not and that its claims are ripe for a determination. In light of the timeframe set forth in the proposed rules which indicate that a final rule on the accommodations may not be adopted until August 1, 2013,6 Geneva is potentially without any “final” guidance (as defendants would define it) until the very day it is expected to have a student health insurance plan in place—a process that, in reality, can take many months. Like in Bell, judicial determination of Geneva’s claims at the present time will yield a conclusive result, if Geneva succeeds on the merits, insofar as it will prevent defendants from imposing a severe hardship on Geneva. It seems disingenuous for defendants to argue there is no significant hardship when
6 See 76 FED. REG. at 8,458 (indicating that the temporary enforcement safe harbor remains in effect until August 1, 2013, and defendants are “committed to rulemaking” during that period).
12

Geneva would potentially have to wait until the last possible moment before it can receive a conclusive judgment with respect to rules that have long been promulgated and published in the Federal Register. See Lauderbaugh, 319 F.3d at 575. As such, any decision rendered at this time will be conclusive with respect to Geneva’s claims.
3. Practical Help or Utility From a practical standpoint, a court determination with respect to Geneva’s claims serves a useful purpose at this juncture given the limited time Geneva has to make changes to its student health plan. As defendants previously acknowledged, the “requirements in the [regulations related to the mandate] require significant lead time in order to implement.” 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, 41,730 (Jul. 19, 2010). Given Geneva’s precarious position of having to choose between maintaining objectionable student health insurance coverage and foregoing student health insurance coverage altogether, any resolution that avoids such a choice will confer a benefit. The court’s previous opinion rejected Geneva’s argument that a favorable judgment would assist with its planning process for future health insurance plan years. (ECF No. 74 at 29.) The court now reconsiders that conclusion in light of the additional facts brought to the court’s attention. Geneva is no longer planning for some indefinite event in the future, it is already planning and suffering a hardship by being forced to choose between making available objectionable coverage and foregoing student health insurance altogether. Courts acknowledge that an “agency regulation which prevents a business from competing or entering into business contracts has been held to cause hardship if judicial review was not immediate.” ADMINISTRATIVE LAW § 48.04 (citing Indep. Bankers Ass’n of Am. v. Smith, 534 F.2d 921, 929
13

(D.C. Cir. 1976)). The present situation does just that. Because defendants failed to build sufficient lead time into their rulemaking for entities like Geneva whose plan years begin on August 1, 2013, Geneva is now making critical decisions about its student health plan and will continue to suffer real hardship absent a court ruling.
Defendants point to the majority of court decisions finding that claims by entities like Geneva are not ripe. (ECF No. 85 at 7-8.) Many of those courts, however, rendered their decisions before the proposed rules were promulgated and nearly all the decisions involved factually inapposite situations. Specifically, they involved institutions with health insurance plan years that do not begin until after August 1, 2013, thus allowing sufficient planning time in light of defendants’ yet-to-be-published final rules. See Franciscan Univ. of Stubenville v. Sebelius, No. 12-CV-440, 2013 WL 1189854 at *5 (S.D. Ohio Mar. 22, 2013) (plan year beginning January 1, 2014); Eternal World Television Network, Inc. v. Sebelius, No. 12-CV-501, 2013 WL 1278956 at *13 (N.D. Ala. Mar. 25, 2013) (plan year beginning July 1, 2014); Ave Maria Univ. v. Sebelius, No. 12-cv-88, 2013 WL 1326638 at *1 (M.D. Fla. Mar. 29, 2013) (subject to safe harbor until January 1, 2014); Criswell Coll. V. Sebelius, No. 12-CV-4409 (N.D. Tex. Apr. 9, 2013) (subject to safe harbor until January 1, 2014); Priests for Life v. Sebelius, No. 12-cv00753 (E.D. N.Y. Apr. 12, 2013) (stipulation that the defendants would not enforce the regulations against the plaintiff through December 31, 2013); Wenski v. Sebelius, No. 12-cv23820 (S.D. Fla. Mar. 5, 2013) (subject to safe harbor until July 1, 2014); Roman Catholic Diocese of Dallas v. Sebelius, No. 12-CV-1589-B, 2013 WL 687080 at *16 (N.D. Tex. Feb. 26, 2013) (plan year beginning January 1, 2014); Conlon v. Sebelius, No. 12-cv-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013) (various plaintiffs subject to safe harbor until October 1, 2013, January 1, 2014, and July 1, 2014 (see First Amended Complaint, ECF No. 27 ¶¶ 47, 81, 106,
14

116, 153)); Archdiocese of St. Louis v. Sebelius, No. 12-CV-00924, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013) (subject to safe harbor until July 1, 2014 (see Complaint, ECF No. 1 ¶¶ 28, 89)); Roman Catholic Archbishop of Washington v. Sebelius, No. 12-cv-0815, 2013 WL 285599 at *1 (D. D.C. Jan. 25, 2013) (subject to safe harbor until January 1, 2014); Persico v. Sebelius, No. 12-cv-123, 2013 WL 228200 at *9 (W.D. Pa. Jan. 22, 2013) (subject to safe harbor until July 1, 2014); Catholic Diocese of Peoria v. Sebelius, No. 12-cv-01276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013) (subject to safe harbor until July 1, 2014 (see Complaint, ECF No. 1 ¶¶ 44, 81)); Catholic Diocese of Biloxi v. Sebelius, No. 12-cv-00158, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012) (various plaintiffs subject to safe harbor until October 1, 2013 and July 1, 2014 (see Complaint, ECF No. 1 ¶ 64)); Zubik v. Sebelius, No. 12-cv-00676, 2012 WL 5932977 at *8 (W.D. Pa. Nov. 27, 2012) (all plaintiffs subject to safe harbor until January 1, 2014); Wheaton College v. Sebelius, 887 F. Supp. 2d 102, 107 n.5 (D. D.C. 2012) (subject to safe harbor until January 1, 2014); Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25, 35 (D. D.C. 2012) (subject to safe harbor until January 1, 2014); but see Univ. of Notre Dame v. Sebelius, No. 12CV253, 2013 WL 6756332 at *1 (N.D. Ind. Dec. 31, 2012) (employee health plan subject to safe harbor until January 1, 2014, student health plan year begins August 15); Colorado Christian Univ. v. Sebelius, No. 11-cv-03350, 2013 WL 93188 (D. Colo. Jan. 7, 2013) (employee health plan subject to safe harbor until July 1, 2014, student health plan year begins in “mid-August” (see Amended Complaint, ECF No. 26 ¶¶ 43-44)); Catholic Diocese of Nashville v. Sebelius, No. 12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012) (nonexempt plaintiffs subject to safe harbor until January 1, 2014, other plaintiffs’ plan years begin on August 1, 2013 (see Complaint, ECF No. 1 ¶¶ 66, 128).
15

As illustrated in the decisions cited by defendants, Geneva is one of very few challengers to the mandate that must contract for its student health insurance plan in the near future and will potentially implement that plan prior to any further rulemaking by defendants. A conclusive ruling at this time will help Geneva make its choice with respect to whether to maintain a student health plan and will therefore be of practical help or utility.
4. Balancing the Factors Taking all the Step-Saver factors into account, Geneva established that its claims are ripe for adjudication. Although further rulemaking is likely to take place, the court concludes the final rules and the proposed rules for accommodations are sufficiently final to satisfy the adversity of interest, conclusivity, and practical help and utility elements of the Step-Saver test. Any finding to the contrary would risk subjecting Geneva to the substantial hardship of preventing it from negotiating for its student health insurance plan. C. Defendants’ Motion to Dismiss Based upon the court’s conclusion that Geneva’s claims are ripe and that all plaintiffs assert essentially the same legal challenges to the mandate, the court finds that, for the same reasons set forth in its previous opinion, (ECF No. 74), defendants’ motion to dismiss will be granted in part to the same extent it was with respect to the claims of Wayne L. Hepler, Carrie E. Kolesar, and the Seneca Hardwood Lumber Company, Inc. Defendants’ motion to dismiss is granted without prejudice with respect to Geneva’s Establishment Clause claim (count III); its Free Speech Clause claim (count IV); and its arbitrary and capricious and contrary to law claims under the Administrative Procedure Act (count VI (in part)); and is granted with prejudice (because further amendment would be futile) with respect to its Fifth Amendment Due Process Clause claim (count V).
16

Defendants’ motion to dismiss is denied in part for the same reasons set forth in the previous opinion with respect to Geneva’s Religious Freedom Restoration Act claim (count I), its Free Exercise Clause claim (count II); and its notice and comment claim under the Administrative Procedure Act (count VI (in part)). An appropriate order follows.
ORDER For the reasons stated above, it is HEREBY ORDERED that Geneva College’s motion for reconsideration (ECF No. 81) with respect to whether its claims are ripe is GRANTED. It is FURTHER ORDERED that Geneva’s claims are ripe for adjudication, and, for the reasons set forth in the court’s previous opinion, defendants’ motion to dismiss (ECF No. 39) is GRANTED IN PART, as follows:
 The claims set forth in count III and count IV are dismissed without prejudice;  The arbitrary and capricious and contrary to law claims set forth in count VI are
dismissed without prejudice; and  The claim set forth in count V is dismissed with prejudice. It is FURTHER ORDERED that in all other respects defendants’ motion to dismiss counts I, II, and VI is DENIED. SO ORDERED, this 8th day of May, 2013.
BY THE COURT: /s/ Joy Flowers Conti Joy Flowers Conti United States District Judge
17

 
 Case 2:12-cv-00207-JFC Document 92 Filed 06/18/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR

)

)

Plaintiff,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the

)

United States Department of Health and Human )

Services, HILDA SOLIS

)

in her official capacity as Secretary of the

)

United States Department of Labor, TIMOTHY )

GEITHNER

)

in his official capacity as Secretary of the

)

United States Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES DEPARTMENT )

OF THE TREASURY

)

ORDER GRANTING PRELIMINARY INJUNCTION

Upon consideration of the motion for preliminary injunction (ECF No. 87) by plaintiff

Geneva College (“Geneva”), its memorandum and affidavits in support, the parties’ briefing and

oral argument on defendants’ motion to dismiss, this court’s Memorandum Opinion and Order

dated March 6, 2013, and for the reasons set forth in the accompanying findings of fact and

conclusions of law;

IT IS HEREBY ORDERED that Geneva’s motion for preliminary injunction is hereby

GRANTED;

IT IS FURTHER ORDERED that defendants, their agents, officers, and employees, are

Case 2:12-cv-00207-JFC Document 92 Filed 06/18/13 Page 2 of 2

hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.C. § 300gg13(a)(4) by requiring that Geneva’s student health insurance plan, its plan broker, or its plan insurer provide abortifacients contrary to Geneva’s religious objections.
IT IS FURTHER ORDERED that the injunction hereby granted shall remain in effect until this court makes a full determination on the merits of the case, or the United States Supreme Court or United States Court of Appeals for the Third Circuit renders a decision on the merits of this case or an adverse decision in a substantially similar case, whichever occurs first; and
IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate.

SO ORDERED. Dated: June 18, 2013

BY THE COURT:
/s/Joy Flowers Conti Joy Flowers Conti United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT 
 FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


GENEVA COLLEGE, et aI., Plaintiffs,
v.
K.ATHLEEN SEBELIUS, et aI., Defendants.

) ) 
 ) 
 ) Civil No. 12-0207 ) ) )

MEMORANDUM ORDER Pending before the court is a motion for an indicative ruling filed by the defendants Kathleen Sebelius, et ai. ("defendants"). (ECF No. 96.) Defendants ask this court to issue an order, pursuant to Federal Rule of Civil Procedure 62.1 indicating that the court would vacate its April 19, 2013 and June 18, 2013 orders if the Court of Appeals for the Third Circuit remanded the currently-pending appeals from those orders back to this court. Those two orders preliminarily enjoined defendants from enforcing the preventative services coverage regulations as to the Hepler plaintiffs and as to Geneva College's student group health plan ("Geneva") (Id. at 1.) Plaintiffs filed a briefin opposition to the government's request (ECF No. 103.) For the reasons that follow, the defendants' motion is denied.
According to defendants, the Hepler injunction is in direct conflict with the Court of Appeals for the Third Circuit's July 26,2013 decision in Conestoga Wood Specialties, Inc. v. Sebelius, ~ F.3d _, 2013 WL 3845365, which held that "a for-profit, secular corporation cannot engage in the exercise of religion" and that a corporation's owners' constitutional rights cannot "pass through" to the company. (ECF No. 97 at 1.) With respect to the Geneva injunction, the government contends that its enactment of final rules in July of 20 13 makes this

court's injunction, which was based on a prior Notice of Proposed Rulemaking, moot (Id. at 2.) The govenunent further argues that any injunction in favor of Geneva would be premature because the contraceptive coverage requirement will not be enforced with respect to Geneva's student group health plan until August 1,2014 (Id.)
Plaintiffs assert that the court of appeals' decision in Conestoga is both distinguishable from the Hepler plaintiffs' claims and non-final as it is currently subject to review by the United States Supreme Court to resolve a direct circuit conflict (ECF No.1 03 at 2.) With respect to the injunction issued in favor of Geneva, plaintiffs argue that, due to circumstances created by the govenunent, it is not clear whether the safe harbor provision included in the final rules will insulate Geneva against enforcement of the contraceptive coverage requirement until August 2014 (Id.)
Federal Rule of Civil Procedure 62.1 allows a district court to issue an indicative ruling on a motion for relief from judgment when ruling on such a motion is barred by a pending appeal. FED. R. CIY. P. 62.1. A district court can dispose ofa motion pursuant to this rule in one of four ways: (1) it may defer considering the motion; (2) it may deny the motion; (3) it may state that it would grant the motion if the court of appeals remands for that purpose; or (4) it may
state that the motion raises a substantial issue. hL When the district court indicates that it would
grant the motion for relief, the court of appeals may remand at its discretion. FED. R. App. P. 12.1(b).
The court of appeals' decision in Conestoga does not compel issuance of an indicative ruling with respect to the Hepler plaintiff's injunction. First, as plaintiffs' aptly point out, there are legally consequential distinctions between the plaintiffs in that case and in the
2 


instant case. Setting aside the differences in corporate structures, Conestoga did not include claims brought by individual family member-employees. For that reason alone, it would be improper for this court to speculate, without the benefit of full briefing and oral argument, on the effect that the decision in Conestoga would have on the instant matter if remanded. Second, within days of filing a notice of appeal from this court's June 18, 2013 Geneva injunction, defendants asked the court of appeals to hold that appeal in abeyance pending issuance of the court's decision in Conestoga. In that filing, defendants stated that "[i]f[the court of appeals] accepts the government's contentions in Conestoga Wood, the claims in [the Geneva injunction appeal] will fail for the same reasons" (Id. at ~ 3.) The court of appeals ruled in favor of the government in Conestoga, yet denied defendants' motion to hold the Geneva appeal in abeyance the day after issuing its mandate in Conestoga. Geneva College v. Sebelius, No. 13-2814, Doc. 003111368643, 8/23113 Order (3d Cir.); Conestoga Wood Specialties, et al. v. Sebelius, No. 13­ 1144, Doc. 003111366443, 8/22/13 Mandate (3d Cir.). Defendants' motion promptly made the court of appeals aware of its position regarding the effect of the Conestoga decision on its appeal of this court's Geneva injunction. Yet, the court of appeals did not stay the appeal pending resolution of the Conestoga appeal. Under the circumstances, this court need not opine on that same issue in the procedural context of a request for an indicative ruling. Finally, the court of appeals' decision in Conestoga is the subject of a petition for writ of certiorari filed with the United States Supreme Court. Conestoga Wood Specialties, et al. v. Sebelius, No. 13-356 (U.S.). Responses to the petition are due on October 21, 2013. It would be particularly inappropriate, and premature, for this court to issue an indicative ruling based on the court of appeals' decision in Conestoga under the circumstances.
3

Likewise, the government's issuance of final rules does not does not compel issuance of an indicative ruling with respect to the Geneva injunction. Plaintiffs fIled a motion for leave to file a second amended complaint, which challenges the same final rules that the government maintains require an indicative ruling. Were the court to enter the order being requested by the government, plaintiffs' proposed amended pleading would be effectively pre­ judged in its entirety. Such a procedural short-circuiting of the adversary process is inappropriate.
For the foregoing reasons, defendants' motion for an indicative ruling (ECF No. 96) is DENIED.

Dated: October 18, 2013

BY THE COURT,

4 


 
 Case 2:12-cv-00207-JFC Document 105 Filed 11/12/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

_________________________________________ )

Case No. 2:12-cv-00207-JFC

GENEVA COLLEGE’S SECOND MOTION FOR PRELIMINARY INJUNCTION Plaintiff Geneva College hereby moves this Court for a preliminary injunction protecting
it from Defendants’ requirement that it provide its employees a group health plan through which those employees gain access to certain abortifacient drugs and devices beginning January 1, 2014.
As set forth in the accom panying Memorandum of Law, the reason ing behind this Court’s previous orders preliminarily enjoining application of the Mandate to th e College’s co-plaintiffs (the Hepler Plaintiffs) and to the College’s student plan dictates granting this motion as well. Requiring the College’s em ployee plan to f acilitate access to ab ortifacients substantially burdens its ability to e xercise its r eligious beliefs in the s anctity of life. As this Court has already acknowledged, no com pelling governmental interest just ifies that burden. Accordingly, there is a substantial likelihood that Geneva will prevail on its claim under the Religious Freedom Restoration Act regarding its employee plan.

1

Case 2:12-cv-00207-JFC Document 105 Filed 11/12/13 Page 2 of 3

Without injunctive relief, the College, its em ployees, and the public w ill be irreparably

harmed. Defendants will suffer no measurable injury if the injunction is granted, and thus the

balancing of harms plainly favors Geneva.

Unless the Court deems it nece ssary, the College does not request oral argum ent on this

motion, given the extensive briefi ng and oral argument on the issues presented by this motion in

previous months.

Respectfully submitted this 12th day of November, 2013.

s/Gregory S. Baylor Gregory S. Baylor
Texas Bar No. 01941500 gbaylor@ alliancedefendingfreedom.org Steven H. Aden DC Bar No. 466777 saden@alliancedefendingfreedom .org Matthew S. Bowman DC Bar No. 993261 m bowman@alliancedefendingfreedom.org ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile)
David A. Cortman Georgia Bar No. 188810 dcortm an@alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile)

Bradley S. Tupi Pennsylvania Bar No. 28682 btupi@tuckerlaw.com
David J. Mongillo Pennsylvania Bar No. 309995 dm ongillo@tuckerlaw.com
1500 One PPG Place Pittsburgh, PA 15222 (412) 594-55-45 (412) 594-5619 (facsimile) Local Counsel
Kevin H. Theriot Kansas Bar No. 21565 ktheriot@ alliancedefendingfreedom.org
Erik W. Stanley Kansas Bar No. 24326 estanley @alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile)

Attorneys for Plaintiffs

2

Case 2:12-cv-00207-JFC Document 105 Filed 11/12/13 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that on November 12, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to counsel for Defendants.
s/ Gregory S. Baylor
3

Case 2:12-cv-00207-JFC Document 105-1 Filed 11/12/13 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE, et al., Plaintiffs, v.
KATHLEEN SEBELIUS, et al., Defendants.

) ) ) ) ) Case No. 2:12-cv-00207-JFC ) ) ) )

[PROPOSED] ORDER Upon the motion for prelim inary injunction by Plaintiff Geneva College, its memorandum in support, and all parties’ briefing, and for good cause shown: IT IS ORDERED: Findings of Fact 1. The verified factual allegations in the complaint with respect to the identity of the College, its religious beliefs, and its health in surance plans, are adopted as facts supporting its request for injunctive relief. 2. The College has a religious objection, based on its Christian belief s, to the Defendants’ requirement that abortifacients be made available cost-free to em ployees and their dependents participating in the e mployee health insurance plan it provides. The Mandate is contained in, inter alia, 42 U.S.C. § 300gg-13(a)(4), guidelines available at http://www.hrsa.gov/womensguidelines/, 77 Fed. Reg. 8725–30 (Feb. 15, 2012), 26 U.S.C. § 4980D, 29 U.S.C. § 1132, and is affected by othe r provisions of the Pa tient Protection and Affordable Care Act of 2010 or its implementing regulations.

1

Case 2:12-cv-00207-JFC Document 105-1 Filed 11/12/13 Page 2 of 4
3. If the College does not obtain relief from the applica tion of the Manda te to its employee plan by January 1, 2014, it be unable to continue offering an employee health plan that does not provide access to m orally objectionable abortion-inducing drugs and devices. It will be forced to choose between (a) dropping employ ee health coverage [which contradicts its religiously-based duty to support the physical we ll-being of its em ployees] and face cripp ling financial penalties; and (b) violating its relig ious convictions and comm itments by offering a plan that gives beneficiaries access to abortifacients.
4. Dropping the employee plan will adversely affect the College and the employees and their family members who would otherwise have participated in the plan.
5. Defendants have volu ntarily excluded tens of millions of women from the Mandate’s alleged benefits through exclusions such as for “grandfathered” plans under the Affordable Care Act and various kinds of relig ious exemptions and accommodations for various entities that do not include the College.
6. Through other programs, Defendants provide extensive funding and provision of the Mandated items to which the College o bjects, as do state governm ents, including free provision of these items for women who cannot afford them.
7. There is no risk of monetary loss to Def endants due to an injun ction in th is non-commercial context.
8. The College filed a motion for a preliminary injunction (ECF No. __ ) seeking to halt the ap plicability of the Mand ate to the e mployee plan it facilitates. Geneva’s motion argues that Defendants’ requirements violate the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq.
2

Case 2:12-cv-00207-JFC Document 105-1 Filed 11/12/13 Page 3 of 4
Legal Conclusions 1. The background, summ ary of alleged fact s, and resolution of legal issues contained in this Court’s March 6, 2013 Mem orandum Opinion and Order, with respect to the RFRA claim, and in this Court’s April 19, 2013 and June 18, 2013 Findings of Fact and Conclusions of La w, are adopted with resp ect to this prelim inary injunction order mutatis mutandis. 2. The College exercises religion within the meaning of RFRA when it objects to the requirement that abortifacients be included in its employee health plan. 3. Defendants’ application of the Mandate to the College’s employee health plan substantially burdens the exercise of its religious beliefs. 4. Defendants’ imposition of this burden on the College is not justified by a compelling interest. 5. Defendants have voluntarily left unprohibited m assive and varying levels of appreciable damage to their supposedly vital interests allegedly underlying the Mandate. 6. Defendants’ Mandate on the College is not the least restrictive means of achieving a compelling government interest. 7. The College has shown a high probability of success on the m erits of its RFRA claim. 8. The College will suf fer irreparable harm in the absenc e of the prelim inary injunctive relief specified herein. 9. Preliminary injunctive relief as sp ecified herein will no t result in ha rm to the Defendants.
3

Case 2:12-cv-00207-JFC Document 105-1 Filed 11/12/13 Page 4 of 4

10. Preliminary injunctive relief as specified herein is in the public inte rest and in the interest of Geneva employees and their families.

Therefore, IT IS FURTHER ORDERED that: 1. Geneva College’s motion for preliminary injunction (ECF No. __ ) should be and hereby is GRANTED; 2. Defendants, their agents, officers, and employees, and their requirem ents that the Geneva College em ployee health insurance plan, broker, or insurer provide abortifacients to those participating in the employee health plan contrary to the College’s religious objections, are ENJOINED from any application or enforcem ent of such requirem ents, including the substantive requirement imposed to this exte nt in 42 U.S.C. § 300gg-13(a)(4), Pub. L. 111-148, §1563(e)-(f), the application of otherwise applicab le penalties, and any determ ination that the requirements are so applicable. 3. A bond in the amount of zero dollars appropriate and is ordered.

SO ORDERED.

BY

____________________________

Dated

The

THE COURT:
__________________________________ Honorable Joy Flowers Conti
United States District Judge

4

 
 Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

_________________________________________ )

Case No. 2:12-cv-00207-JFC

MEMORANDUM OF LAW IN SUPPORT OF GENEVA COLLEGE’S SECOND MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Geneva College (“Geneva” or “the College”) here by files this Memorandum of Law in Support of its Second Motion for Prelim inary Injunction. The College seeks an order protecting its employee health plan fr om Defendants’ imminent requirement1 that the plan give beneficiaries access to abortifacients in violati on of its religious con victions. This Court’s previous orders2 enjoining application of the Mandate to the College’s student plan and to the Hepler Plaintiffs’ employee plan show that Geneva is entitled to injunctive relief with respect to its employee plan as well.
ARGUMENT By forcing Geneva College to p rovide its employees access to m orally objectionable abortion-inducing drugs and devices, Defendants violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). Defendants’ requi rement, the “HHS Mandate,”

1 Under the Temporary Enforcement Safe Harbor, the College is legally permitted to exclude morally objectionable abortion-inducing drugs and devices from its current employee health insurance plan. However, the Safe Harbor will expire with respect to the College’s employee plan when a new plan year commences on January 1, 2014. See 78 Fed. Reg. 39,870, 39,872 (Jul. 2, 2013).
2 Order Granting Preliminary Injunction (ECF No. 92) (College’s student plan); Findings of Fact and Conclusions of Law (ECF No. 91) (same); Order Granting Preliminary Injunction (ECF No. 84) (Hepler Plaintiffs’ employee plan); Findings of Fact and Conclusions of Law (ECF No. 83) (same).
1

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 2 of 9
substantially burdens the College’s religious exercise, and im posing the Mandate upon the College’s employee health insura nce plan is not the leas t restrictive means of advancing a compelling governmental interest. 42 U.S.C. § 2000bb-1(a) (governm ent generally m ay not “substantially burden” religious exercise); id. § 2000bb-1(b) (substantial burdens on religious exercise permissible only if governm ent demonstrates that application of the burden to the person is the “least restrictive means” of furthering a “compelling governmental interest”).
This Court has twice c oncluded in this case that application of the Mandate is likely to violate RFRA. It held that forcing Seneca Hardwood and its fam ily owners to include contraceptives, sterilization, and abortifacients in their employee health plan in violation of their religious convictions would likely transgress RFRA. And it held that the College would like ly succeed on its claim that RFRA forbids Defen dants from coercing it to facilitate acces s to abortifacients through its student health plan. The Court’s assessment of RFRA’s elem ents (substantial burden, com pelling governmental interest, least restric tive means) and the preliminary injunction factors (m erits, balance of har ms, public interest) 3 in those contexts applies equally in the present context (Genev a’s employee plan). As acknowledged by this Court in enjoining the a pplication of the Mand ate to the C ollege’s student plan, Defendants’ so-called “accommodation” of re ligious entities like Geneva 4 does not eliminate the Mandate’s substantial burden on the College’s religious desire to avoid complicity in grave moral evil and to promote life-protecting beliefs and behavior by its em ployees and students. 5 According ly, this Court should prelim inarily enjoin Defendants from imposing the Mandate on the College’s employee plan.
3 A preliminary injunction is warranted if the movant demonstrates: (1) a likelihood of success on the merits; (2) that the movant will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will no t result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). 4 “Coverage of Certain Preventive Services Under the Affordable Care Act,” 78 Fed. Reg. 39,870, 39,874-886 (Jul. 2, 2013); 26 C.F.R. § 54.9815-2713A; 45 C.F.R. § 147.131. 5 Findings of Fact and Conclusions of Law, at 13 n. 8, 14, 15 (protecting student plan from “proposed rules,” which included the substance of the soon-to-be-final “accommodation”).
2

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 3 of 9

I. THE COLLEGE IS LIKELY TO SUCCEED ON ITS CLAIM THAT APPLYING THE HHS MANDATE TO ITS EM PLOYEE PLAN VIOLATE S THE RELIGIOUS FREEDOM RESTORATION ACT.

The College is lik ely to succeed o n its clai m that applyin g the HHS Mandate to its

employee plan violates the Religious Freedom Restoration Act. The Mandate substantially

burdens the College’s religious exercise;

the final version of the then-proposed

“accommodation” this Court cons idered in granting the College’s earlier preliminary injunction

motion warrants no departure from that conc lusion. As this Court has already held, the

Mandate is not the least restrictive means of advancing a compelling governmental interest.

A. Applying the Mandate to the Colleg e’s Employee Plan Will Substantially Burden Its Religious Exercise.
This Court held that the Mandate, by requiring the Hepler Plaintif fs to include m orally objectionable drugs, devices, pro cedures, and services in their health insurance plan, substantially burdened their religious exercise. Findings of Fact and Conclusions of Law at 12-16 (ECF No. 83). The Court obs erved that the Man date forced the Heple r Plaintiffs to choose between transgressing thei r religious beliefs and dropping employee health coverage entirely in order to avoi d that transgression. Id. at 14. It concluded that D efendants substantially burdened the Hepler Plaintiffs’ religious exercise by inflicting this sort of Hobson’s choice upon them . I ndeed, this Court said that the Mandate imposed upon them “ a quintessential substantial burden.” Id. at 16.
The Court also held that the im posing the Mandate on G eneva’s student plan w ould substantially burden the College’s religio us exercise, despite the (then-proposed) “accommodation.” Findings of Fact and Conclu sions of Law at 12-16 (ECF No. 91). Under the original version of the Manda te, the student plan would have to cover, without cost-sharing, all FDA-approved contraceptives, including the abortion-inducing drugs and devices to which the College objects. In its Notice of Propos ed Rulemaking (NPRM), Defendants proposed a

3

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 4 of 9

rule that would allegedly “protect eligible organizations from having to contract, arrange, pay, or refer for contraceptive coverage to which they obj ect on religious g rounds.” Findings of Fact and Conclusions of Law at 11 (ECF No. 91) (quoting 78 Fed. Reg. at 8,462–64). The College argued that, under the accommodation, it would still facilitate coverage and use of abortifacients in violation of its religious beliefs.
The Court held that the (the n-proposed) accommodation would not eliminate the substantial burden on the College’s religious exercise:

Geneva explicitly objects to the re quirement that it facilitate th e objectionable coverage to its students, despite the accommodation proposed by defendants. In light of this fact, Geneva will be f orced to modify its behavior and to violate its beliefs by either giving up its [] health insurance generally or providing the objectionable coverage.…[T]his is a quintessential substantial burden….

Findings of Fact and Conclusions of Law at 15-16 (ECF No. 91) (emphasis added).

The proposed accommodation d iscussed in th e Court’s prio r opinion subsequently

became final in substan tially the same form. See 78 Fed. Reg. 39,870, 39,874-879; 45 C.F.R.

§45 C.F.R. § 147.131. In the Second Am ended Complaint, the College expressly alleged that

complying with the Mandate, even with its “accommodation,” would transgress its relig ious

belief in the dignity of hum an life. Second Amended Complaint, ¶¶ 7, 220, 222 (E CF No. 98).

If the proposed accommodation would not have alleviated the burden on the College’s re ligious

exercise in the student plan context, the final accommodation surely does not alleviate the burden

on Geneva in the employee plan context.

To the extent the governm ent will argue th at the accommodation changes things, it is

important to recognize the centrality of Ge neva College to th e accommodation’s scheme.

Under the accommodation, the College is still forced to provide health in

surance to its

employees because it has m ore than 50 full-tim e employees. W hen the College signs a

certification of its religious objection and provide s it to the employee plan issu er, the insu rer

must then provide abortifacient coverage to the persons covered in the College’s plan by giving

those persons a prom ise of “payments” for abor tifacients. This promise of paym ents occurs

4

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 5 of 9
only because the Colleg e is providing a plan to those persons—no promise would occur if the College did not have this insurance relationship with the plan participants. The promise of payments comes from the College ’s own insurer, because that insurer is being paid by the College to provide its employees health insuran ce. And the promise of payments is delivered precisely to the Colleg e’s own employees and their dependents, b ecause those people are participants in the College’s plan. Thus, under the “accommodation,” the College is a necessary and direct cause of abortifacient coverage for its health plan participants.
Defendants insist that the College is not required to “contract, arra nge, pay, or refer for such coverage” and will presumably argue that it thus does not suffer a substantial burden. This is, in essence, a moral argument. But Defendants cannot circumvent RFRA’s restraint on their power by second-guessing the College’s m oral judgment. The College religiously opposes facilitating abortifacient payments in connection with its own health plan. It objects to being a central cog in the m achine of the M andate’s delivery of promised abortifacient payments to the College’s own insured em ployees and their de pendents. Defendants cannot argue that the burden on the College’s religious exercise is not “substan tial” because other ways of involving the College in providing access to abortifacients exist.
In any event, the governm ent is not delive ring the alleged benef its of the Ma ndate independent of the Col lege, as if it were sim ply knocking on the doors of the College’s employees and giving them abortifacients. The accommodation delivers abortifacient payments (1) to persons in the College’s plan, (2) only becau se they are in that plan—they would not get it otherwise, and (3) through the insurer the College is paying for its underlying plan. In fact, the final rule emphasizes as a virtue of the accommodation th at employees and students will not b e receiving abortifacient payments under some separate policy or from a separate source; they will get their abortifacient payments in pure continuity with their own underlying insurance:
This approach also m inimizes barriers in access to care because plan p articipants and beneficiaries (and their health care providers) do not have to have two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy).
5

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 6 of 9

78 Fed. Reg. at 39,876. Thus, the inextricable re lationship between these “separate paym ents”

and the College’s plan is exp ressly intended and deem ed desirable. When the g overnment

re-labels what is happening as “separate,” that does not change the reality that the College m ust

play an indispensable role in the coverage of items to which it objects. The government’s claim

that this arrangement is somehow “free” to the College misses the point that the College does not

merely object to paying for abortifacients; connection to its own health plan.6

it objects to causing abor tifacient coverage in

By analogy, suppose the governm ent deemed pornography to be necessary to the health

and equality of fe male employees, family members and students at G eneva College. If the

College objected to providing access to pornography for those persons, the government could not

negate the College’s religious objection sim ply by requiring the College to provide e mployees

and students with a “m ere” subscription to cable television, and then turn around and m andate

that the College’s own cable com pany, “not” th e College, provide “free” porn channels to the

same group of persons enrolled in the College ’s cable subscription. The College’s m oral

objection to facilitating access to pornography would still be ignored.

Thus, Defendants factually wrong when it claims the accommodation does not impact the

College’s beliefs against facilitating coverage for and the use of lif e-destroying drugs and

devices. The government is also incorrect about “substantial burden.” That element of RFRA

cannot be a foundation for second-guessing a claimant’s moral calculus, but instead measures the

magnitude of the pressure the governm ent imposes upon an individual or entity to violate its

conscience. A law substantially burdens the exercise of religion w hen it com pels one “to

perform acts undeniably at odds with funda mental tenets of their religious beliefs.” Wisconsin

v. Yoder, 406 U.S. 205, 218 (1972). A substantial bur den also exists where a law places

“substantial pressure on an adherent to m odify his behavior and violate his beliefs.” Thomas v.

Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). As this Court concluded, the

6 Geneva makes no financial contribution to the cost of student health insurance, yet this Court held that forcing the College to facilitate access to abortifacients by its students substantially burdens its religious exercise.
6

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 7 of 9
Mandate imposes a substantial burden sim ply by forcing the College “to choose between violating its deeply held religious beliefs,” suffering penalties for not doing so, or suffering the harms inherent in dropping hea lth insurance coverage. For the employee health plan, dropping health insurance coverage com es with explicit government fines, it takes a specific health plan away from employees who rely on it, it robs employees who share the College’s beliefs of a plan that is m orally acceptable to them, it h arms the College’s ability to keep and attract good employees, and it would practically require paying em ployees more money (beyond the government fines) for no longer receiving insurance as part of their compensation.
As this Court sta ted in its Opinion a nd Order on Defe ndants’ Motion to Dism iss, “[c]ourts addressing similar challenges to the m andate’s requirements have ‘sim ply assume[d] that a law substantially burdens a person’s exerci se of religion when that person so claim s.’” (ECF No. 74 at 37, quoting Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 at *6 (E.D. Mich. Oct. 31, 2012)). Three times this Court ha s rejected the governm ent’s argument that its Mandate is too “atten uated” to c onstitute a substantial burden. Most recen tly the Court considered the proposed accommodation and declared that “Geneva facilitates the p rovision of its student health insurance, and to force it to choose whether or not to facilitate a student health plan would be, like in Thomas[, 450 U.S. at 715], a line which it should not be forced to cross.” Findings of Fact and Conclusions of Law at 15 (ECF No. 91). In its Findings of Fact and Conclusions of Law regarding the Hepler Plaintiffs’ Motion for Preliminary Injunction, the Court similarly declared the government’s “attenuation” argument as being inconsistent with the U.S. Supreme Court’s decisions in Yoder, Thomas, and Sherbert v. Verner, 374 U.S. 398 (1963). Findings of Fact and Conclusions of Law at 13-15 (ECF No. 83). The Court also rejected this argument in ruling on Defendants’ Motion to Di smiss. Memorandum Opinion and Order at 37-40 (ECF No. 74). The government’s argument fares no better here.
7

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 8 of 9
B. The Mandate Is Not th e Least Res trictive Means of Adva ncing a Compelling Governmental Interest.
This Court has previously held that the Mandate failed strict scrutiny under RFRA. Findings of Fact and Conclusions of Law at 16-20 (ECF No. 83) (Hepler Plaintiffs’ em ployee plan); Findings of Fact and Conclusions of Law at 16-19 (ECF No. 91) (Colle ge’s student plan). There is no basis for departing from those conclusions in the context of Geneva’s employee plan. Accordingly, the Colleg e is likely to succeed on its claim that im posing the Mandate on its employee plan violates RFRA. II. THE BALANCE OF HARMS AND PUBLIC INTEREST WARRANT A
PRELIMINARY INJUNCTION. The Court previously held that the other injunction factors warranted a prelim inary injunction. Findings of Fact and Conclusions of Law at 19- 22 (College’s student plan); Findings of Fact and Conclusions of Law at 21-23 (Hepler Plaintiffs’ employee plan). There is no basis for departing from those conclusions in the context of Geneva’s employee plan.
CONCLUSION For the foregoing reasons, Geneva College respectfully requests that this Court issue preliminary injunctive relief to protect its employee health plans from the Mandate.
8

Case 2:12-cv-00207-JFC Document 106 Filed 11/12/13 Page 9 of 9

Respectfully submitted this 12th day of November, 2013.

s/Gregory S. Baylor Gregory S. Baylor
Texas Bar No. 01941500 gbaylor@ alliancedefendingfreedom.org Steven H. Aden DC Bar No. 466777 saden@alliancedefendingfreedom .org Matthew S. Bowman DC Bar No. 993261 m bowman@alliancedefendingfreedom.org ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile)
David A. Cortman Georgia Bar No. 188810 dcortm an@alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile)
Attorneys for Plaintiffs

Bradley S. Tupi Pennsylvania Bar No. 28682 btupi@tuckerlaw.com
David J. Mongillo Pennsylvania Bar No. 309995 dm ongillo@tuckerlaw.com
1500 One PPG Place Pittsburgh, PA 15222 (412) 594-55-45 (412) 594-5619 (facsimile) Local Counsel
Kevin H. Theriot Kansas Bar No. 21565 ktheriot@ alliancedefendingfreedom.org
Erik W. Stanley Kansas Bar No. 24326 estanley @alliancedefendingfreedom.org
ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile)

CERTIFICATE OF SERVICE I hereby certify that on November 12, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to counsel for Defendants.
s/ Gregory S. Baylor 9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L.

)

HEPLER; THE SENECA HARDWOOD )

LUMBER COMPANY, INC., a

)

Pennsylvania Corporation; WLH

)

ENTERPRISES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler; and CARRIE E. KOLESAR

) ) ) )

)

Plaintiffs,

)

)

)

)

v.

)

)

KATHLEEN SEBELIUS

)

in her official capacity as Secretary of the )

United States Department of Health and

)

Human Services, HILDA SOLIS

)

in her official capacity as Secretary of the United States Department of Labor, TIMOTHY GEITHNER

) ) ) )

in his official capacity as Secretary of the )

United States Department of the Treasury, )

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR, UNITED STATES

)

DEPARTMENT OF THE TREASURY

)

)

Defendants

) )

Case No. 12-0207

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CONTI, Chief District Judge

Pending before the court is the Second Motion for Preliminary Injunction (ECF

No. 105), and brief in support and reply brief, (ECF No. 106 and 111), filed by plaintiff Geneva

College (“Geneva”), and the response in opposition, (ECF No. 107), filed by defendants

Kathleen Sebelius, Hilda Solis, Timothy Geithner, the United States Department of Health and

Human Services (“HHS”), the United States Department of Labor, and the United States Department of the Treasury (collectively, “defendants”).
Geneva seeks an order protecting it from complying with the requirement that it include coverage for certain preventative services as part of the health insurance it provides to its employees. Geneva objects specifically to the requirement that it provide insurance coverage for abortifacient products such as ella, Plan B, and intrauterine devices (collectively, the “objected to services”).
For purposes of the present motion, Geneva argues that the law requiring it to provide insurance coverage for the objected to services, 42 U.S.C. § 300gg-13(a)(4) (referred to generally as the “Mandate”), violates the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 (the “RFRA”). Under the RFRA, the government may not “substantially burden” a person’s exercise of religion, unless the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(a) and (b).
Geneva advised the court that it does not desire an evidentiary hearing or oral argument on the instant motion and intends to proceed on the record and briefing that is presently before the court. (ECF No. 105 at 2.) Defendants did not object to proceeding in this manner. As it did with respect to both of the prior motions for preliminary injunctive relief, the court will proceed without an evidentiary hearing or oral argument. Williams v. Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982) (noting that “[i]t has long been recognized that a preliminary injunction may issue on the basis of affidavits and other written evidence, without a hearing, if the evidence submitted by both sides does not leave unresolved any relevant factual issue”).
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Geneva indicated that the court must rule on its motion no later than December 31, 2013, so that it may continue to contract for its employee health insurance plan for the 201415 plan year, which is scheduled to begin on January 1, 2014. The matter is ripe for disposition.
I. Procedural Background The court previously issued findings of fact and conclusions of law, and entered
orders preliminarily enjoining defendants from enforcing the Mandate against the Hepler plaintiffs, (ECF Nos. 83 and 84), and against Geneva with respect to its student health insurance plan, (ECF Nos. 91 and 92), in part because plaintiffs established a likelihood of success on the merits with respect to their RFRA claims. Geneva College v. Sebelius, 941 F.Supp.2d 672, 68086 (W.D. Pa. 2013) (Hepler injunction); Geneva College v. Sebelius, -- F.Supp.2d --, 2013 WL 3071481, at *10-11 (W.D. Pa. Jun. 18, 2013) (Geneva student plan injunction).1
Since the court entered those two preliminary injunction orders three significant events occurred: (1) defendants filed interlocutory appeals in the Court of Appeals for the Third Circuit from both preliminary injunction orders. Geneva College, et al. v. Secretary United States Department of Health and Human Services, et al., Nos. 13-2814 and 13-3536 (3d Cir. 2013); (2) the relevant federal agencies issued rules finalizing the self-certification procedure to be followed by religious-based organizations which object to providing coverage for certain preventative services, such as contraceptives and abortion-inducing drugs or devices (the “Final Rules”). Coverage of Certain Preventative Services Under the Affordable Care Act, 78 FED.
1 The court also issued lengthy memorandum opinions with respect to defendants’ motion to dismiss, (ECF No. 74), and Geneva’s motion for reconsideration, (ECF No. 86), which not only addressed foundational issues, such as standing and ripeness, but also substantively analyzed the substantial burden and compelling interest elements of plaintiffs’ RFRA claims. (ECF No. 74 at 36-43); Geneva College v. Sebelius, 929 F.Supp.2d 402, 430-35 (W.D. Pa. 2013).
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REG. 39,870-39,899 (Jul. 2, 2013), available at 2013 WL 3294256; and (3) the United States Supreme Court granted certiorari in two cases in which for-profit, secular closely-held corporations alleged that the Mandate violates the RFRA. Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, 2013 WL 5297800 (U.S. Nov. 26, 2013), and Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, 2013 WL 5297798 (U.S. Nov. 26, 2013).
A. The Interlocutory Appeals Defendants’ interlocutory appeals from this court’s orders preliminarily enjoining enforcement of the Mandate against the Helper plaintiffs and Geneva’s student health insurance plan are pending before the Court of Appeals for the Third Circuit at Appeal Numbers 13-2814 (Hepler injunction) and 13-3536 (Geneva student plan injunction). Geneva College, et al. v. Secretary United States Department of Health and Human Services, et al., Appeal Nos. 13-2814 and 13-3536 (3d Cir. 2013). The court of appeals consolidated the cases. The Hepler plaintiffs recently filed a motion in the court of appeals asking that their case be held in abeyance pending the Supreme Court’s decision in Conestoga Wood. (Appeal No. 13-2814, Doc. 003111466403 at 1.) Geneva did not file a companion motion, but did not object to also holding its case in abeyance. (Id. at 2-3.) In response, defendants argued that the appellate court should immediately vacate the Hepler injunction pursuant to the court of appeals’ controlling decision in Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013), which held that a for-profit, secular, closely-held corporation could not assert a RFRA challenge to the Mandate. (Appeal No. 13-2814, Doc. 003111472846 ¶ 1.) With respect to the appeal from the Geneva injunction, defendants suggested that the appellate court hold the matter in abeyance for ninety days so that any appeal resulting from this court’s disposition of the instant motion could be consolidated with the already-pending appeal concerning Geneva’s
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student plan. (Id. ¶ 2.) The Hepler plaintiff’s motion was referred to a motions panel of the court of appeals on December 11, 2013. (Appeal No. 13-2814, at Doc. 003111478999). Although opening briefs were due January 13, 2014, briefing is stayed pending disposition of this motion. (Id.)
Although neither party addresses this court’s ability to decide the instant motion while these appeals are pending, the court independently examined the scope of its jurisdiction under these circumstances. An interlocutory appeal does not divest the district court of jurisdiction. United States v. Price, 688 F.2d 204, 215 (3d Cir. 1982) (citing 16 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3921.2 (2d ed. 1995)). This court retains the ability to proceed with those matters not involved in the appeal. New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). The two preliminary injunction orders subject to appeal do not address application of the Final Rules to Geneva’s employee health plan. For this reason, the present motion raises novel issues and this court retains jurisdiction to decide the instant motion.
B. The Final Rules This summer, various federal agencies issued the Final Rules implementing the Mandate. Coverage of Certain Preventative Services Under the Affordable Care Act, 78 FED. REG. at 39,870 (Jul. 2, 2013), available at 2013 WL 3294256. The Final Rules were issued on June 28, 2013, published in the Federal Register on July 2, 2013, and became effective on August 1, 2013. 78 FED. REG. at 39,870; (ECF No. 98 ¶ 145.) The Final Rules include two concessions for religious-based employers that object to providing coverage for the contraceptive services and devices required by the Mandate: (1) an absolute exemption for certain religious employers, such as churches and their related auxiliaries and associations; and (2) a self-
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certification accommodation for nonprofit organizations that hold themselves out as a religious organization. 78 FED. REG. at 39,873-78.
Under the latter accommodation, if a nonprofit, religious organization, objects to providing contraceptive services due to a religious objection, it can execute a self-certification form, which notifies its insurance carrier that the organization refuses to provide coverage for certain preventative services, such as the objected to services. 78 FED. REG. at 39,874-75; 45 C.F.R. § 147.131(b). Upon receipt of a self-certification form, the insurer must offer the objected to services to employees without direct or indirect cost to the employee or the organization. 78 FED. REG. at 39,875-77; 45 C.F.R. § 147.131(c)(2)(ii) and (d). This process is referred to herein as the “eligible organization accommodation” or the “self-certification process.”2
Plaintiffs filed a second amended complaint on October 18, 2013, which added allegations relating to the Final Rules, including, specifically, the eligible organization accommodation’s self-certification process. (ECF No. 98 ¶¶ 145-82.)
C. Supreme Court Appeals and Recent Case Law In November 2013, the United States Supreme Court granted two petitions for a writ of certiorari in cases filed by for-profit, secular, closely-held corporations seeking to prevent enforcement of the Mandate against company health plans on the basis of the owners’ religious beliefs. Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356, 2013 WL 5297800 (U.S. Nov. 26, 2013), and Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, 2013 WL 5297798 (U.S.
2 This accommodation is also reflected in the Treasury Department’s regulations, 78 FED. REG. at 39,892, 26 C.F.R. § 54.9815-2713A, and the Labor Department’s regulations, 78 FED. REG. at 39,894-95, 29 C.F.R. § 2590.713-2715A. The court refers only to the amended regulations of the Department of Health and Human Services. 78 FED. REG. at 39,896-97, 45 C.F.R. § 147.131(c)(2)(ii) and (d).
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Nov. 26, 2013). In Conestoga Wood the Court of Appeals for the Third Circuit held that Conestoga Wood Specialties could not assert a RFRA claim because corporations have no First Amendment free exercise rights, and the rights of the individual owners could not pass through to the corporation. Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013). In contrast, in Hobby Lobby, the Court of Appeals for the Tenth Circuit held that corporations have First Amendment free exercise rights, and, as a result, Hobby Lobby could assert a RFRA claim. The court of appeals went on to conclude that the Mandate imposed a substantial burden on the corporation’s free exercise rights, which could not be justified by any compelling state interest. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013). The Supreme Court consolidated the Conestoga Wood and Hobby Lobby appeals. The publicly available docket does not reflect a briefing schedule, although customary Supreme Court procedure would dictate that the parties’ opening merits briefs be filed in mid-January and mid-February, with petitioner’s reply brief due in mid-March. The Supreme Court docket does reflect that amicus curiae briefs, in support of any party, must be filed by January 28, 2014. It does not appear that the Supreme Court will hear oral argument on these cases before the March 2014 sitting.
Three other courts of appeals have recently ruled on the same, or very similar, issues as were decided in Conestoga Wood and Hobby Lobby:
(1) In Autocam Corp. v. Sebelius, the Court of Appeals for the Sixth Circuit held that a for-profit, secular, closely-held corporation could not assert a RFRA challenge to the Mandate because it was not a “person” within the meaning of the statute. Autocam Corp. v. Sebelius, 730 F.3d 618, 625-26 (6th Cir. Sep. 17, 2013). In reaching this holding, the court emphasized that the free exercise rights of “religious entities” are different than those of for-profit, secular corporations. Id. at 627. The Court of
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Appeals for the Third Circuit made this same distinction. Conestoga Wood, 724 F.3d at 385-86, discussed, infra p. 21. (2) In Gilardi v. United States Department of Health and Human Services, the Court of Appeals for the District of Columbia Circuit held that a for-profit, secular, closely-held corporation did not possess free exercise rights, and could not assert a RFRA claim, but that the owners of the corporation unquestionably possessed such individual rights and could assert them under the RFRA. Gilardi v. United States Department of Health and Human Services, 733 F.3d 1208, 1212-16 (D.C. Cir. Nov. 1, 2013). The court of appeals concluded that the Mandate substantially burdened the owners’ religious exercise, and could not survive the compelling government interest/least restrictive means test set forth in the RFRA. Id. at 1216-24. (3) In Korte v. Sebelius, the Court of Appeals for the Seventh Circuit held that for-profit, secular, closely-held corporations were “persons” within the statutory language of the RFRA. Korte v. Sebelius, 735 F.3d 654, 673-82 (7th Cir. Nov. 8, 2013). The appellate court concluded that the Mandate substantially burdened the plaintiffs’ exercise of religion and failed the RFRA’s compelling government interest/least restrictive means test. Id. at 682-87.
Although the Supreme Court will address a RFRA challenge to the Mandate, neither of the cases under consideration, nor any of the appellate decisions set forth above, involve a nonprofit, religious organization’s challenge to the eligible organization accommodation and its self-certification process. The court is unaware of any court of appeals to have considered such a challenge. Three federal district courts have considered such a challenge to date. Two of those courts held that the eligible organization accommodation’s self-
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certification process violates the RFRA. The Roman Catholic Archdiocese of New York v. Sebelius, -- F.Supp.2d --, No. 12-2541, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, -- F.Supp.2d --, Nos. 13-1459 (Pitts.) and 13-303 (Erie), 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) (J. Schwab). The other district court held that the accommodation did not violate the RFRA, or any Constitutional provision. Priests for Life, et al. v. United States Dep’t of Health and Human Services, -- F.Supp.2d --, No. 13-1261, 2013 WL 6672400 (D.D.C. Dec. 19, 2013).
II. FINDINGS OF FACT3 Geneva is a nonprofit institution of higher learning established in Beaver Falls,
Pennsylvania, in 1848 by the Reformed Presbyterian Church of North America (“RPCNA”). (ECF Nos. 91 at 3; 98 ¶¶ 12, 25.) Geneva’s mission is “to glorify God by educating and ministering to a diverse community of students in order to develop servant-leaders who will transform society for the kingdom of Christ.” (ECF Nos. 91 at 3; 98 ¶ 25.) This mission is central to Geneva’s institutional identity and activities. (ECF Nos. 91 at 3; 98 ¶¶ 27-29.) Geneva offers a traditional liberal arts and sciences curriculum as well as student programs and services that are rooted in the Christian faith. (ECF Nos. 91 at 3-4; 98 ¶ 26.) Pursuant to its mission and goals, Geneva has historically promoted a diverse student population and has opposed institutions (such as slavery) that it finds inimical to its beliefs. (ECF Nos. 91 at 4; 98 ¶¶ 36-37.)
Geneva is governed by a board of corporators and a board of trustees. (ECF Nos. 91 at 4; 98 ¶¶ 30, 33.) Members of the board of corporators must be members of the RPCNA
3 The findings of fact contained herein are derived from the court’s previous findings of fact, (ECF Nos. 83 and 91), as well as the allegations of the second amended complaint (ECF No. 98). Because the factual background has not changed, many of the factual findings are identical to those made with respect to Geneva’s previous preliminary injunction motion.
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and members of the board of trustees must be members of either the RPCNA or some other Reformed or Evangelical Christian congregation. (Id.) Geneva’s faculty, staff, and administration are drawn from among those who profess faith in Christ and who otherwise agree with the college’s Christian convictions. (ECF Nos. 91 at 4; 98 ¶ 34.) Geneva has approximately 350 employees, about 280 of which are full-time. (ECF No. 98 ¶ 39.) There are approximately 95 full-time faculty members. (Id.) Geneva does not require its students to profess a particular faith, but it does give enrollment priority to Evangelical Christians and requires all students to live by standards of Christian morality. (ECF Nos. 91 at 4; 98 ¶ 35.)
Geneva and the RPCNA firmly believe “that the procurement, participation in, facilitation of, or payment for abortion [including the use of what it alleges are abortion-causing drugs like Plan B and ella] violates the Commandment against murder.” (ECF Nos. 91 at 4; 98 ¶ 45.) Geneva identifies several texts, including the Ten Commandments, Scripture, the articulated statements of the RPCNA, and the Westminster Larger Catechism in support of its view that human life begins at the moment of fertilization, and that any destruction of a human life thereafter constitutes murder. (ECF Nos. 91 at 4; 98 ¶¶ 40-46.) Geneva’s Student Handbook expressly provides that abortion “will not be tolerated.” (ECF Nos. 91 at 4; 98 ¶ 51.) In furtherance of its views on abortion, Geneva’s students and staff participate in a host of pro-life activities both on and off campus. (ECF Nos. 91 at 4; 98 ¶¶ 47-50.)
Geneva provides health insurance coverage to its employees and makes health insurance coverage available to its students. (ECF Nos. 91 at 5; 98 ¶ 52.) Geneva considers providing health care to its employees to be part of its religious duty. (ECF No. 98 ¶ 52.) Geneva’s contract for employee health coverage states that it excludes “[a]ny drugs used to abort a pregnancy.” (ECF No. 98 ¶ 54.) The next plan year for the employee health plan is scheduled
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to begin on January 1, 2014. (Id. ¶ 53.) Although Geneva is permitted to exclude morally objectionable abortion-inducing drugs and devices from its current employee health insurance plan under the Temporary Enforcement Safe Harbor provision, that provision will expire with respect to Geneva’s employee plan when the new plan year commences on January 1, 2014. (ECF No. 106 at 1 n.1); 78 FED. REG. 39,870, 39,872.
Without the relief requested, Geneva will be forced to choose between: (a) violating its religious convictions by acquiescing to a government requirement that it facilitate access to abortion-inducing drugs and devices; and (b) violating its religious convictions by cancelling all health care coverage for its employees. (ECF No. 111 at 1.) Geneva’s religious convictions forbid it from participating in providing free access to the objected to services through its employee health care plan. (ECF No. 98 ¶ 186.) Geneva has a religious duty to provide for the well-being of its employees and their families. (Id. at ¶¶ 52, 183-84.) Because Geneva has more than 50 full-time employees, it is required under the ACA to provide health insurance to its employees or incur substantial penalties, or be subject to legal action. (ECF No. 98 ¶ 39, 109-10); 26 US.C. §§ 4980D(b)(1) and H(c)(1); 29 U.S.C. § 1132; 42 U.S.C. § 18011. Dropping its employee health insurance plan would not only violate Geneva’s religious duty to provide for its employee’s well-being, but also subject Geneva to crippling penalties and place Geneva at a severe competitive disadvantage in its efforts to recruit and retain employees. (ECF No. 98 ¶¶ 9, 52, 109, 183-84, 187, 197.)
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III. CONCLUSIONS OF LAW A. The Relevant Statutes and Regulations Concerning the Objected to Services 1. The Patient Protection and Affordable Care Act of 2010 On March 23, 2010, the Patient Protection and Affordable Care Act of 2010, Pub.
L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (“ACA”), became law and an overhaul of the nation’s healthcare system began. Section 1001 of the ACA includes specific measures related to preventive care for women, and provides in part:
(a) In general A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
* * * (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [“HRSA”] for purposes of this paragraph. 42 U.S.C. § 300gg-13 (the “preventive care provision”). Because the ACA did not specifically identify which preventive care services would have to be provided without cost sharing, further rulemaking was necessary. 2. Preventive Care Services and Interim Final Rules On July 19, 2010, defendants (the Departments of Health and Human Services, Labor, and Treasury) issued interim Final Rules implementing the preventive care provision. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA (the “first interim Final Rules”), 75 FED. REG. 41,726 (Jul. 19, 2010). The first interim Final Rules required all group health plans and health insurance
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issuers offering nongrandfathered4 group or individual health coverage to cover, without cost-
sharing, the preventive care services outlined in 42 U.S.C. § 300gg-13. Id. at 41,728. The first
interim Final Rules directed the HHS, in conjunction with the Institute of Medicine (“IOM”), to
determine what preventive services are necessary and beneficial for women’s health and well-
being. Id. The IOM was to report its findings to the Health Resources and Services
Administration (“HRSA”), which was to issue the necessary guidelines. The report issued by the IOM5 on July 19, 2011, recommended that the HRSA guidelines include, inter alia: “[t]he full
range of Food and Drug Administration [(“FDA”)]-approved contraceptive methods, sterilization
procedures, and patient education and counseling for women with reproductive capacity.” IOM
Report at 10. FDA-approved contraceptive methods include the objected to services, such as the
drugs ella and Plan B, as well as intrauterine devices.
3. HRSA Guidelines
On August 1, 2011, the HRSA adopted guidelines pursuant to the IOM recommendations6 and on August 3, 2011, again issued interim Final Rules (the “second interim
Final Rules”). Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA, 76 FED. REG. 46,621 (Aug. 3, 2011). The second interim
Final Rules carved out an exemption allowing certain religious employers to avoid providing
4 The preventive services provisions do not apply to health plans that are grandfathered. A plan is grandfathered if: (1) at least one person was enrolled on March 23, 2010; (2) the plan continuously covered at least one individual since that date; (3) the plan provides annual notice of its grandfathered status; and (4) the plan has not been subject to significant changes as outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.9815-1251T(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§ 147.140(a), (g). There is no dispute that Geneva’s employee health plan is not entitled to grandfather status. 5 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-theGaps.aspx (last visited Dec. 19, 2013) (“IOM Report”). 6 The HRSA guidelines are available at http://www.hrsa.gov/womensguidelines/ (last visited Dec. 19, 2013).
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insurance coverage for the objected to services. 76 FED. REG. at 46,626 (codified at 45 C.F.R. § 147.130(a)(1)(iv)(B)). The “religious employer exemption” defines religious organizations as those employers that meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. The sections of the Internal Revenue Code cited in subsection (4) define nonprofit organizations as “churches, their integrated auxiliaries, and conventions or associations of churches,” and “the exclusively religious activities of any religious order” that are exempt from taxation pursuant to 26 U.S.C. § 501(a).
4. Temporary Enforcement Safe Harbor Provision After allowing the public and interested groups to comment on the second interim Final Rules, defendants adopted the definition of religious employer contained in those regulations without change on February 15, 2012. Group Health Plans and Health Issuers Relating to Coverage of Preventive Services Under the ACA, 77 FED. REG. 8,725, 8,727-28 (Feb. 15, 2012). These regulations contained a temporary enforcement safe harbor provision for nongrandfathered plans that do not qualify for the religious employer exemption. Id. HHS issued
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supplemental guidance (“HHS Guidance”) with respect to the safe harbor provision.7 The safe harbor provision provides that defendants will not take any enforcement action against an employer, a group health plan, or a group health insurance issuer with respect to nonexempt, nongrandfathered group health plans that fail to cover some or all of the recommended preventive services “until the first plan year that begins on or after August 1, 2013.” HHS Guidance, at 3. To qualify for the safe harbor provision, an organization must meet the following four criteria:
(1) The organization is organized and operates as a nonprofit entity. (2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization. (3) . . . [T]he group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012. (4) The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed [elsewhere in the HHS Guidance]. HHS Guidance, at 3.
7 HHS, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing (reissued bulletin), at 3 (Feb. 10, 2012), available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/preventiveservices-guidance-6-28-2013.pdf (last visited Dec. 19, 2013).
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5. Advance Notice of Proposed Rulemaking Following the adoption of the regulations and the HHS Guidance in February 2012, defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) on March 21, 2012. Certain Preventive Services Under the ACA, 77 FED. REG. 16,501 (Mar. 21, 2012). The ANPRM sought additional public comments and set forth “questions and ideas” on how to best provide women with access to contraceptive services without cost-sharing, while accommodating the religious liberty concerns articulated by nonexempt religious organizations. Id. at 16,503. By its own terms, the ANPRM aimed to “protect . . . religious organizations from having to contract, arrange, or pay for contraceptive coverage.” Id. The ANPRM provided a ninety-day comment period ending June 19, 2012. Id. 6. Updated Guidance The HHS updated its guidance bulletin (the “Updated HHS Guidance”) on August 15, 2012 by clarifying three points: “(1) that the safe harbor is also available to nonprofit organizations with religious objections to some but not all contraceptive coverage . . .; (2) that group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . .; and (3) that the safe harbor may be invoked without prejudice by nonprofit organizations that are uncertain whether they qualify for the religious employer exemption.”8 The safe harbor was aimed at providing an additional year—until the first plan year beginning on
8 Department of Health and Human Services, Revised Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing, at n.1, available at http://wayback.archive-it.org/2744/20130514175209/http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Dec. 19, 2013) (“updated HHS Guidance”).
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or after August 1, 2013—for health plans and health insurance issuers to comply with the preventive care requirement. Updated HHS Guidance at 3.
7. Proposed Rules On February 6, 2013, defendants issued proposed rules (the “proposed rules”) broadening the universe of organizations eligible for an exemption from the contraceptive requirement. Coverage of Certain Preventive Services under the Affordable Care Act, 78 FED. REG. 8,456, 8,462 (Feb. 6, 2013). In the proposed rules, defendants recommended an accommodation for religious organizations that object to providing contraceptive coverage. The proposed rules exclude from the contraceptive requirement those organizations that meet certain criteria: (1) The organization opposes providing coverage for some or all of the
contraceptive services required to be covered under [the Final Rules] on account of religious objections; (2) The organization is organized and operates as a nonprofit entity; (3) The organization holds itself out as a religious organization; and (4) The organization self-certifies that it satisfies the first three criteria. 78 FED. REG. at 8,462. In an effort to also accommodate those plan beneficiaries who may not share the beliefs of the organizations claiming the accommodation, the proposed rules also set forth possible ways “to provide women with contraceptive coverage without cost sharing and to protect eligible organizations from having to contract, arrange, pay, or refer for contraceptive coverage to which they object on religious grounds.” Id. at 8,462-64.
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8. Final Rules On June 28, 2013, the pertinent federal agencies issued the Final Rules. 78 FED. REG. at 39,870-39,899. The Final Rules modify the language used to define an exempt “religious employer” to be “an organization that is organized and operates as a nonprofit entity and is referred to in § 6033(a)(3)(A)(1) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 FED. REG. at 39,874; 45 C.F.R. § 147.131(a). Because the Internal Revenue Code sections list churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order, the new language used did not change the substance of the exemption. 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). These employers are absolutely exempt from the Mandate. The Final Rules include the same accommodation for “eligible organizations” that originally appeared in the February 6, 2013 proposed rules, and make it applicable to all group health plans for plan years beginning on or after January 1, 2014. 78 FED. REG. at 8,462, 38,872, 39,874-75; 45 C.F.R. § 147.131(b). The Final Rules utilize the same four criteria set forth in the proposed rules to determine whether an entity qualifies as an “eligible organization,” thus allowing it to take advantage of the “self-certification” work-around: (1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under s 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies…..
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45 C.F.R. § 147.131(b). A self-certification form must be signed by an authorized representative of the organization and provided to the organization’s insurer. Id. at § 147.131(b)(4). Upon receipt of the self-certification form, the group health insurer must notify plan participants of the availability of separate payments for any contraceptive services required to be covered under § 147.130(a)(1)(iv). Id. at § 147.131(d). Such payments are to be made without any cost-sharing requirements or premium, fee, or other charge to the eligible organization, the group health plan, or the plan participants or beneficiaries. Id. at § 147.131(c)(2); 78 FED. REG. at 39,879-80.
B. Claims Presented in the Second Amended Complaint Geneva avers that the Final Rules’ self-certification requirement substantially
burdens its religious exercise by requiring it to act as the “sole trigger” of access to the objected to services. (ECF No. 98 ¶¶ 139, 159-60, 167, 174, 179, 181-82, 186, 188-90.) According to Geneva, under the self-certification accommodation, Geneva is the “central cog” in the government’s scheme to expand access to the objected to services, against its conscience and religious beliefs. (Id. ¶ 140.) Geneva asserts that it would play a central role in facilitating free access to the objected to services by coordinating notices with and providing employee information to its insurer. (Id. ¶¶ 160, 162, 164-65, 167.) Geneva argues that the Final Rules burden its employee recruitment and retention efforts by putting it at a competitive disadvantage were it to choose not to offer health insurance, rather than violate its beliefs by participating in the self-certification process. (Id. ¶¶ 187.) Geneva avers that eliminating health care coverage entirely would result in the imposition of significant monetary penalties, and would, itself, violate its religious duty to provide for the well-being of its employees and their families. (ECF No. 98 ¶¶ 52, 109-10, 183.)
19

C. Preliminary Injunction Standard The court considers four factors in determining whether to grant a preliminary
injunction. A party seeking a preliminary injunction must show: “(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)).
Although a party seeking preliminary injunctive relief must make “a clear showing that [it] is entitled to such relief,” Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22 (2008), demonstrating a likelihood of success on the merits requires only that the party “prove a prima facie case, not a certainty that he or she will win.” Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001) (citing 11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948.3 (2d ed. 1995)).
1. Likelihood of Success on the Merits a. Geneva’s Claim Pursuant to the RFRA
Pursuant to the RFRA, the government may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). The government may, however, substantially burden the exercise of religion if the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Geneva bears the initial burden under the RFRA of establishing that application of the Mandate would substantially burden a sincere religious exercise. O Centro, 546 U.S. at 426.
20

Before proceeding the court must consider the effect, if any, that the Court of Appeals for the Third Circuit’s precedential decision in Conestoga Wood has on the court’s substantive analysis of Geneva’s RFRA claim. Conestoga Wood, 724 F.3d 377 (3d Cir. 2013). Although the court of appeals’ decision was issued more than three months before the first brief on the instant motion was filed, neither party cited to it. Defendants cite only to the district court opinion in that case. (ECF No. 107 at 4-5.)
To reiterate, in Conestoga Wood, the Court of Appeals for the Third Circuit held that a for-profit, secular, closely-held corporation could not assert a RFRA claim because courts have not historically provided First Amendment free exercise protection to corporations. Conestoga Wood, 724 F.3d at 384. In doing so, the court explicitly distinguished the “rights of religious organizations.” Id. at 385-86. The holding in Conestoga Wood applies, by its own language, only to certain for-profit, secular, closely-held corporations,9 which the court distinguished from “religious organizations.” The appellate court did not decide on which side of the ledger nonprofit, non-secular corporations would fall. For this reason, Conestoga Wood does not conclusively bar this court’s consideration of Geneva’s RFRA claim.
Given that defendants presuppose Geneva’s right to bring a claim pursuant the RFRA in this case, and given that the eligible employer accommodation is premised on this same fundamental presumption, the court will proceed with a substantive analysis of Geneva’s claim. Korte, 735 F.3d at 674-75 (noting that the religious employer exemption and self-certification
9 This court previously noted the limited scope of the holding in Conestoga Wood in denying defendants’ motion for an indicative ruling. Geneva College v. Sebelius, No. 12-207, 2013 WL 5704948 (W.D. Pa. Oct. 18, 2013). This court found that the court of appeals’ decision in Conestoga Wood did not require that the Hepler injunction be vacated because the corporate structure of the Hepler corporate plaintiffs differed from Conestoga Wood Specialties Corp., and because Conestoga did not consider claims brought by individual family member-employees. Id. at *2.
21

accommodation assume that certain religious organizations have free exercise rights, but noting that the lines drawn by the government are “nowhere to be found in the text of RFRA,” and recognizing that the government analogizes these exemptions and accommodations to exemptions for religious employers under the Americans with Disabilities Act, 42 U.S.C. § 12113(d)(1)-(2), and Title VII, 42 U.S.C. § 2000e-2).
i. Substantial Burden Under the RFRA, exercise of religion is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2 (citing 42 U.S.C. § 2000cc-5). The Supreme Court has cautioned courts to be reluctant to “dissect religious beliefs” when engaging in a substantial burden analysis. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981). As the court acknowledged in its previous orders and factual and legal findings, a court must tread lightly when considering whether the mandate’s requirements substantially burden Geneva’s exercise of religion. (ECF Nos. 83 at 12 and 91 at 12-13); Geneva College, 2013 WL 3071481, at *7; Geneva College, 941 F.Supp.2d at 681. The court’s role is not to decide whether the commands of one’s faith have been correctly perceived; instead, it is enough that a claimant has an “honest conviction” that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Korte, 735 F.3d at 683 (quoting Thomas, 450 U.S. at 716). Two appellate courts considering the exact Mandate at issue in this case explained that a court must assess the intensity of the coercion and pressure from the government, not the merit of the belief. Korte, 735 F.3d at 683; Hobby Lobby, 723 F.3d at 1137.
22

A challenged law substantially burdens Geneva’s free exercise of religion if it
compels Geneva “to perform acts undeniably at odds with fundamental tenets of their religious
beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). A substantial burden also exists where
a law “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.”
Thomas, 450 U.S. at 718. Even “onerous” financial costs can rise to the level of a substantial
burden. See Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 392 (1990)
(declining to find a substantial burden, but recognizing that one could exist under certain
circumstances). The courts of appeals to reach the merits of RFRA challenges to the Mandate
specifically found that the substantial fines and penalties imposed upon an entity that either
refuses to offer health care coverage to its employees at all, or refuses to provide coverage for the
mandated preventative services constitutes a substantial burden. Korte, 735 F.3d at 683-84; Gilardi, 733 F.3d at 1217-18; Hobby Lobby, 723 F.3d at 1140-41.10
Defendants do not question the sincerity of Geneva’s religious beliefs, but they do
dispute whether the Mandate and the Final Rules impose a substantial burden on the exercise of
those beliefs. Defendants argue that the Final Rules’ self-certification accommodation does not
substantially burden Geneva’s exercise of religion because it requires Geneva to do no more than
submit a form informing its insurer that it refuses to provide coverage to its employees for
contraceptive services and ensures that Geneva is not responsible for contracting, arranging,
paying, or referring for such coverage. (ECF No. 109 at 11.) Defendants contend that Geneva
10 In Priests for Life, the district court explained, based on targeted supplemental briefing submitted by the government after oral argument, that if an eligible organization refuses to take advantage of the self-certification accommodation process, its insurer has an independent legal obligation under the ACA to include the objected to services in the organization’s group policy. Priests for Life, 2013 WL 66722400, at * 3 n.2. In other words, an eligible organization’s refusal to complete the self-certification process does not result in a $100 per employee, per day fine for failing to provide coverage for the objected to services; it results in the organization actually paying, through its group health insurance policy, for the objected to services. Id.
23

need not modify its behavior in any way under the Final Rules because Geneva would notify its insurer of this refusal before the ACA became law. (Id. at 11, 19.) Defendants assert that the self-certification accommodation “require[s] virtually nothing of Geneva” making any burden on Geneva de minimus, and that, in any event, any burden on Geneva’s free exercise rights is too attenuated to qualify as substantial. (Id. at 11, 18.)
Geneva argues that this court’s prior rulings with respect to the Hepler plaintiffs’ motion for a preliminary injunction and Geneva’s motion for a preliminary injunction concerning its student health plan dictate that Geneva’s instant motion be granted. (ECF No. 106 at 1, 2.) Geneva emphasizes that this court previously rejected defendants’ attenuation argument and ruled that the self-certification accommodation, which at the time was only a proposal, did not eliminate the Mandate’s substantial burden on Geneva’s religious desire to avoid complicity in grave moral evil. (Id. at 2, 7; ECF No. 111 at 8); Geneva College, 2013 WL 3071481, at *7-9. Geneva explains that under the Final Rules it is forced to become the “central cog” in “facilitating access” to the objected to services because the services only become available to its employees if Geneva: (1) offers a health insurance plan to its employees, as it is now required by law to do; and (2) submits the self-certification form to its insurer, which itself, by law, requires that the objected to services will be provided to employees. (ECF No. 106 at 5-6.)11
In its reply brief, Geneva responds directly to defendants’ claim that Geneva is required to do no more than it did before the Mandate became law, i.e, notify an insurer of its refusal to provide coverage for the objected to services. Geneva convincingly explains that the
11 According to briefing filed by the government in Priests for Life, under the ACA, Geneva’s employees will obtain insurance coverage for the objected to services so long as Geneva offers a health insurance plan to its employees, because if Geneva refuses to execute a self-certification form, then Geneva’s insurer is required, by law, to include the objected to services in the group plan, at Geneva’s expense. See supra note 10.
24

consequence of its prior notification was that its employees could not obtain coverage for the
objected to services, while the consequence of the Final Rules’ self-certification notification is
that its employees must be provided access to the objected to services. See Archdiocese of N.Y.,
2013 WL 6579764, at *14 & n.11 (noting that the self-certification form transforms a voluntary
act that plaintiffs believe to be consistent with their religious beliefs into a compelled act that
they believe forbidden); Zubik, 2013 WL 6118696, at *25 (analogizing that a person might be
willing to provide a neighbor with a knife to cut meat, but not to commit murder). The purpose for which the notification is provided, and the compulsion to file it, makes all the difference.12
Geneva is correct that, under the authority of Thomas, this court previously
rejected defendants’ recurrent argument that the burden in the present case is too attenuated to be
substantial. Geneva College, 2013 WL 3071481, at *9. Defendants identified no change in
factual or legal circumstances that would compel a different result here. The court is again
convinced by Geneva’s well-founded argument that its submission of the self-certification form
is not too attenuated from the provision of the objected to services. Instead, it is the necessary
stimulus behind their provision. See Korte, 735 F.3d at 684-85 (rejecting attenuation argument);
Gilardi, 733 F.3d at 1217-18 (same); Hobby Lobby, 723 F.3d at 1189-90 (same). Courts should
not undertake to dissect religious beliefs and second-guess where an objector draws the line
12 For this reason, the court respectfully disagrees with the district court’s conclusion, in Priests for Life, that the self-certification process cannot substantially burden an eligible organization’s religious exercise because it “need not do anything more than it did prior to the promulgation of the challenged regulations – this is, to inform its issuer that it objects to providing contraceptive coverage.” Priests for Life, 2013 WL 6672400, at *7. Prior to the ACA, the result of that notification was that employees could not obtain insurance coverage for the objected to services. After the ACA, the result of that notification is that employees must be provided insurance coverage for those same services. Under the ACA, Geneva has two choices: (1) provide insurance coverage to its employees, which will result in coverage for the objected to services; or (2) refuse to provide insurance coverage for its employees, which will result in fines, harm to its employees’ well-being, and competitive disadvantages. Both options require Geneva to act contrary to its religious duties and beliefs. See supra p. 11.
25

when analyzing substantial burden questions. Hobby Lobby, 723 F.3d at 1141. Here, Geneva draws the line at providing health insurance to its employees that includes coverage for the objected to services. The Mandate forces Geneva to facilitate access to the objected to services through the self-certification process. The court previously found that this is a not a line that the government can compel Geneva to cross. The court makes the same finding again.
In granting preliminary injunctive relief to the Hepler plaintiffs and to Geneva with respect to its student plan, this court explained how the Supreme Court’s decisions in Yoder, Sherbert and Thomas supported a finding that the Mandate, including the selfcertification accommodation, imposed a substantial burden under the RFRA. As it was under the proposed rules, under the Final Rules, Geneva is faced with having to choose between violating its deeply held religious beliefs and terminating its employee health insurance coverage entirely in order to avoid the ACA’s regulatory scheme, which it alleges also burdens its religious duty to care for the well-being of its employees, and will, in any event, result in substantial fines. (ECF No. 98 ¶¶ 109-10, 183.); Thomas, 450 U.S. at 718. Like in Yoder, Geneva will suffer a severe, direct financial hardship if forced to drop its employee health plan because of the fines that would be imposed on it. Geneva will also suffer indirect hardship in that a burden would be placed on its efforts to recruit and retain employees if it fails to offer health insurance at all. (ECF No. 98 ¶ 187); see Jimmy Swaggart Ministries, 493 U.S. at 392. These burdens are substantial.
The court concludes, again, that Geneva demonstrated that it is likely to succeed on the merits with respect to the substantial burden issue.
26

ii. Compelling Government Interest/Least Restrictive Means Because Geneva demonstrated that it is likely to succeed in showing that the Mandate’s and the Final Rules’ requirements impose a substantial burden on its exercise of religion, the court must determine whether these requirements serve “interests of the highest order.” Yoder, 406 U.S. at 215. The government bears the burden of demonstrating a compelling interest at this stage, since “the burdens at the preliminary injunction stage track the burdens at trial.” O Centro, 546 U.S. at 429-30 (analyzing the applicable burdens under the RFRA). Defendants assert that the Mandate and the self-certification accommodation of the Final Rules advance the compelling government interest in safeguarding public health and ensuring that women have equal access to health care. (ECF. No. 109 at 15.) These can be compelling governmental interests. (ECF No. 91 at 16-17.) Defendants concede, however, as they must, that this court previously concluded that a previous version of the regulations, which furthered the same governmental interests, did not satisfy strict scrutiny “[i]n light of the myriad exemptions” applicable to the Mandate. (Id. at 17-19.) Defendants, therefore, relegate their arguments in this regard to a footnote “merely to preserve them for appeal.” (ECF No. 109 at 27 n.11.) Given defendants’ concession, and given that they failed to identify any factual or legal distinctions between the current circumstances and the court’s prior rulings, defendants cannot establish that the Mandate and the Final Rules serve a compelling governmental interest. In particular, even though this deficiency in their position was identified in this court’s prior rulings, defendants still fail to show how exempting Geneva from the mandate will “seriously compromise [the government’s] ability to administer the program,” particularly where defendants have exempted religious employers and are actively trying to exempt entities like Geneva. O Centro, 546 U.S. at 435. The “myriad exemptions” to the Mandate’s requirements
27

still exist and demonstrate that the requirement is “woefully underinclusive” and therefore does not serve a compelling government interest. Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002).
2. Irreparable Harm to Geneva Irreparable harm is an injury that cannot be adequately compensated at a later date in the ordinary course of litigation. The Supreme Court has held, and defendants concede, that “[t]he loss of First Amendment freedoms,” or a violation of the RFRA, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). This is particularly true when Geneva made a strong showing that is likely to succeed on the merits of its RFRA claim. See Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581, 596 (W.D. Pa. 2009) (citing 11A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2948.1 (2d ed. 1995)). As demonstrated by the discussion above, the court concludes that because coverage must be obtained by January 1, 2014, Geneva will be irreparably harmed if it is forced either to forgo providing employee health insurance coverage or to violate its sincerely held religious beliefs by contracting for coverage that requires it to facilitate the provision of the objected to services to its employees. Although the fines imposed on Geneva should it chose to cancel its employee health insurance entirely could be compensable by monetary relief, the detrimental effect on Geneva’s recruitment and retention of employees by doing so, not to mention on the health and well-being of its employees, would be irreparable. This factor weighs strongly in favor of granting the requested relief.
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3. Irreparable Harm to Defendants Defendants will suffer little, if any, harm should the requested relief be granted. Defendants have already granted significant exemptions to the Mandate. The requested relief in the present case will maintain the status quo until the statutory and constitutional questions raised by Geneva and other similarly-situated individuals and entities can be resolved. Kos Pharms., 369 F.3d at 708 (citing Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990)). In that vein, although the court already found that the court of appeals’ decision in Conestoga Wood does not control this case, the Supreme Court’s imminent consideration of that case, and Hobby Lobby, could provide guidance to this court and to the Court of Appeals for the Third Circuit on some of the relevant questions to be answered on the merits. As noted in the court’s prior decisions, defendants, in other cases involving challenges to the Mandate, have acquiesced to the imposition of injunctive relief. (ECF No. 91 at 20.) Defendants cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in other cases. In light of these considerations, defendants stand to suffer little harm and this factor weighs strongly in favor of granting the requested relief. 4. Public Interest The public interest will likewise benefit if the court grants the requested relief, because “[t]here is a strong public interest in protecting fundamental First Amendment rights.” Trefelner, 655 F.Supp.2d at 598. That strong interest includes fundamental religious rights codified by statute in the RFRA. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). “‘As a practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff.’” Ramsey v. City of Pittsburgh, 764 F.Supp.2d 728, 734-35 (W.D. Pa. 2011) (citing
29

Am. Tel. and Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir.
1994)). Apart from the broader policy reasons for granting Geneva's requested relief,
pragmatic concerns dictate the same outcome. Forcing Geneva to drop its employee health insurance out of fear that the Final Rules, which Geneva asserts violate its religious beliefs, will impose a substantial burden on its employees, and their dependents, who rely upon employerprovided health insurance. (ECF No. 91 at 22.) This consideration, along with the public interest in preserving religious liberties, leads this factor to weigh heavily in favor of granting the requested relief.
5. Balancing Harms Geneva showed that it is likely to succeed on the merits of its RFRA claim; that it will suffer irreparable harm absent injunctive relief; and that the public interest favors granting injunctive relief. In light of the exemptions granted and the position taken by defendants in other similar cases, the harm to defendants is not significant. These showings lead the court to conclude that the balance of the factors weighs heavily in favor of granting the requested relief. IV. CONCLUSION For the reasons set forth herein, Geneva's motion for a preliminary injunction will be GRANTED. An appropriate order will follow.

December 23,2013

BY THE COURT:
:'\
/s/ Joy Flowers Conti Joy Flowers Conti Chief United States

30 


 
 · '

Case 2:12-cv-00207-JFC Document 115 Filed 12/23/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania Corporation; WLH ENTERPRJSES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler; and CARRIE E. KOLESAR
Plaintiff,
v.
KATHLEEN SEBELIUS in her official capacity as Secretary ofthe United States Department ofHealth and Human Services, HrLDA SOLIS in her official capacity as Secretary ofthe United States Department ofLabor, TIMOTHY GEITHNER in his official capacity as Secretary ofthe United States Department ofthe Treasury, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY

) 
 ) 
 ) 
 ) 
 ) 
 ) 

)
)
) ) )
) Case No. 12-0207
)
) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
 ) 
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 ) 
 ) 


ORDER GRANTING PRELIMINARY INJUNCTION

Upon consideration of the motion for preliminary injunction (ECF No.1 05) by plaintiff

Geneva College ("Geneva"), its memorandum in support, the parties' briefing, and this court's

prior opinions, orders and findings of fact and conclusions of law (ECF Nos. 74, 83, 91), and for

the reasons set forth in the accompanying findings of fact and conclusions of law;

IT IS HEREBY ORDERED that Geneva's motion for preliminary injunction is hereby

GRANTED;

IT IS FURTHER ORDERED that defendants, their agents, officers, and employees, are

hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.c. § 300gg­

. 
 .'

Case 2:12-cv-00207-JFC Document 115 Filed 12/23/13 Page 2 of 2

13(a)(4) by requiring that Geneva's employee health insurance plan, its plan broker, or its plan insurer provide abortifacients contrary to Geneva's religious objections.
IT IS FURTHER ORDERED that the injunction hereby granted shall remain in effect until this court makes a full determination on the merits of the case, or the United States Supreme Court or United States Court of Appeals for the Third Circuit renders a decision on the merits of this case or an adverse decision in a substantially similar case, whichever occurs first; and
IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate.

P SO ORDERED.
Dated: December _,2013

BY THE COURT:

Joy Flowers ti Chief United 'ates District Judge

 
 Case: 13-3536 Document: 003111874118 Page: 1 Date Filed: 02/11/2015
PRECEDENTIAL UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 13-3536, 14-1374, 14-1376, 14-1377
GENEVA COLLEGE; WAYNE HEPLER; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania
Corporation; WLH ENTERPRISES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler; CARRIE E. KOLESAR
v. SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY
UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE
TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 13-3536

Case: 13-3536 Document: 003111874118 Page: 2 Date Filed: 02/11/2015
GENEVA COLLEGE; WAYNE L. HEPLER, in his personal capacity and as owner and operator of the sole proprietorship WLH Enterprises; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania Corporation; CARRIE E.
KOLESAR
v.
SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY
UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE
TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,
Appellants in case no. 14-1374
MOST REVEREND LAWRENCE T. PERSICO, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS TRUSTEE OF THE ROMAN CATHOLIC DIOCESE OF
ERIE, A CHARITABLE TRUST; THE ROMAN CATHOLIC DIOCESE OF ERIE; ST. MARTIN CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION OF
CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; PRINCE OF PEACE CENTER, INC., AN AFFILIATE
NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; ERIE CATHOLIC PREPARATORY SCHOOL, AN AFFILIATE NONPROFIT CORPORATION OF THE ROMAN
CATHOLIC DIOCESE OF ERIE
2

Case: 13-3536 Document: 003111874118 Page: 3 Date Filed: 02/11/2015
v. SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF
UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 14-1376
MOST REVEREND DAVID A. ZUBIK, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as Trustee of the Roman Catholic Diocese of Pittsburgh, a
Charitable Trust; THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as the Beneficial Owner of the Pittsburgh series of The Catholic Benefits Trust; CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh v. SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
3

Case: 13-3536 Document: 003111874118 Page: 4 Date Filed: 02/11/2015
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 14-1377
On Appeal from the United States District Court for the Western District of Pennsylvania
(District Court Nos.: 1-13-cv-00303; 2-12-cv-00207 and 2-13-cv-01459)
District Judges: Honorable Joy Flowers Conti; Honorable Arthur J. Schwab
Argued on November 19, 2014
Before: McKEE, Chief Judge, RENDELL, SLOVITER, Circuit Judges
(Opinion filed: February 11, 2015)
Stuart F. Delery, Esquire David J. Hickton, Esquire Beth S. Brinkmann, Esquire Mark B. Stern, Esquire (ARGUED) United States Department of Justice Civil Division Room 7531 950 Pennsylvania Avenue, N.W. Washington, DC 20530
4

Case: 13-3536 Document: 003111874118 Page: 5 Date Filed: 02/11/2015
Michael A. Comber, Esquire Office of United States Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219
Bradley P. Humphreys, Esquire United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7130 Washington, DC 20530
Adam C. Jed, Esquire United States Department of Justice Civil Division Appellate Section, Room 7240 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Alisa B. Klein, Esquire United States Department of Justice Civil Division Appellate Section, Room 7325 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Patrick Nemeroff, Esquire United States Department of Justice Civil Division, Room 7217 950 Pennsylvania Avenue, N. W. Washington, DC 20530
5

Case: 13-3536 Document: 003111874118 Page: 6 Date Filed: 02/11/2015
Eric R. Womack, Esquire Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N. W. Room 7130 Washington, DC 20530
Counsel for Appellants Secretary United States Department of Health and Human Services; Secretary United States Department of Labor; Secretary United States Department Of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of the Treasury
Steven H. Aden, Esquire Gregory S. Baylor, Esquire (ARGUED) Matthew S. Bowman, Esquire Alliance Defending Freedom 801 G Street, N.W. Suite 509 Washington, DC 20001 Erik W. Stanley, Esquire Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 Kevin H. Theriot, Esquire Alliance Defending Freedom 15192 Rosewood Street Leawood, KS 66224
6

Case: 13-3536 Document: 003111874118 Page: 7 Date Filed: 02/11/2015
David A. Cortman, Esquire Alliance Defending Freedom 1000 Hurricane Shoals, N.E. Building D - Suite 1100 Lawrenceville, GA 30043
David J. Mongillo, Esquire Bradley S. Tupi, Esquire Tucker Arensberg 1500 One PPG Place Pittsburgh, PA 15222
Counsel for Appellees Geneva College; Seneca Hardwood Lumber Company, Inc.; Carrie E. Kolesar; Wayne Hepler
Paul M. Pohl, Esquire (ARGUED) John D. Goetz, Esquire Leon F. DeJulius, Jr., Esquire Ira M. Karoll, Esquire Alison M. Kilmartin, Esquire Mary Pat Stahler, Esquire Jones Day 500 Grant Street, Suite 4500 Pittsburgh, PA 15219
Counsel for Appellees Most Reverend Lawrence T. Persico, Bishop Of The Roman Catholic Diocese of Erie, as Trustee of the Roman Catholic Diocese Of Erie, a Charitable Trust; The Roman Catholic Diocese of Erie; ST. Martin Center, Inc., an affiliate Nonprofit Corporation of Catholic Charities of the Diocese of Erie; Prince of Peace Center, Inc.,
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Case: 13-3536 Document: 003111874118 Page: 8 Date Filed: 02/11/2015
an Affiliate Nonprofit Corporation Of Catholic Preparatory School, an Affiliate Nonprofit Corporation Of The Roman Catholic Diocese of Erie; Most Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, Roman Catholic Diocese of Pittsburgh, Catholic Charities Diocese Of Pittsburgh
Deborah J. Dewart, Esquire Liberty, Life and Law Foundation 620 East Sabiston Drive Swansboro, NC 28584
Counsel for Amicus Liberty, Life and Law Foundation
Witold J. Walczak, Esquire Sara J. Rose, Esquire American Civil Liberties Union 313 Atwood Street Pittsburgh, PA 15213
Brigitte Amiri, Esquire Jennifer Lee, Esquire American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004
Daniel Mach, Esquire American Civil Liberties Union Foundation 915 15th Street, 6th Floor Washington, DC 20005
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Case: 13-3536 Document: 003111874118 Page: 9 Date Filed: 02/11/2015
Counsel for Amicus Julian Bond, The American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania
Charles E. Davidow, Esquire Andree J. Goldsmith, Esquire Karin Dryhurst, Esquire Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W., Suite 600 Washington, DC 20006 Marcia D. Greenberger, Esquire Judith G. Waxman, Esquire Emily J. Martin, Esquire Gretchen Borchelt, Esquire Leila Abolfazli, Esquire National Women’ Law Center 11 DuPont Circle, NW, Suite 800 Washington, DC 20036
Counsel for Amicus National Women’s Law Center and Twenty Other National, State and Local Organizations
Ayesha N. Khan, Esquire American United For Separation of Church and State 1301 K Street, NW, Suite 850, East Tower Washington, DC 20005
Counsel for Amicus American United for Separation of Church and State
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Case: 13-3536 Document: 003111874118 Page: 10 Date Filed: 02/11/2015
Sarah Somers, Esquire Martha Jane Perkins, Esquire Dipti Singh, Esquire National Health Law Program 101 East Weaver Street, Suite G-7 Carrboro, NC 27510
Counsel for National Health Law Program, American Public Health Association, National Family Planning & Reproductive Health Association, National Women’s Health Network, National Latina Institute For Reproductive Health, National Asian Pacific American Women’s Forum, Asian Americans Advancing Justice, AAJC, Asian Americans Advancing Justice, Los Angeles, Asian & Pacific Islander American Health Forum, National Hispanic Medical Association, Forward Together, IPAS, Sexuality Information and Education Council of the U. S. (Siecus), HIV Law Project, and California Women’s Law Center as Amici Curiae
Kimberlee Wood Colby, Esquire Center for Law & Religious Freedom Christian Legal Society 8001 Graddock Road, Suite 302 Springfield, VA 22151
The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, National Association of Evangelicals, Ethics & Religious Liberty Commission of the Southern Baptist Convention, American Bible Society, The Lutheran
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Case: 13-3536 Document: 003111874118 Page: 11 Date Filed: 02/11/2015
Church – Missouri Synod, Institutional Religious Freedom Alliance, and Christian Legal Society in Support of Appellees and Urging Affirmance
O P I N I O N
RENDELL, Circuit Judge:
The appellees in these consolidated appeals challenge the preventive services requirements of the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4. Particularly, the appellees object to the ACA’s requirement that contraceptive coverage be provided to their plan participants and beneficiaries. However, the nonprofit appellees are eligible for an accommodation to the contraceptive coverage requirement, whereby once they advise that they will not pay for the contraceptive services, coverage for those services will be independently provided by an insurance issuer or third-party administrator. The appellees urge that the accommodation violates RFRA because it forces them to “facilitate” or “trigger” the provision of insurance coverage for contraceptive services, which they oppose on religious grounds. The appellees affiliated with the Catholic Church also object on the basis that the application of the accommodation to Catholic nonprofit organizations has the impermissible effect of dividing the Catholic Church, because the Dioceses themselves are eligible for an actual exemption from the
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contraceptive coverage requirement. The District Courts granted the appellees’ motions for a preliminary injunction, and, in one of the cases, converted the preliminary injunction to a permanent injunction. Because we disagree with the District Courts and conclude that the accommodation places no substantial burden on the appellees, we will reverse.
I. BACKGROUND A. Statutory and Regulatory Background
1. The Affordable Care Act, the Preventive Services Coverage Requirement, and the Accommodation for Religious Nonprofit Organizations
In 2010, Congress passed the ACA, which requires group health plans and health insurance issuers offering health insurance coverage1 to cover preventive care and screenings for women, without cost sharing (such as a copayment, coinsurance, or a deductible), as provided for in guidelines established by the Department of Health and
1 Eligible organizations may be either “insured” or “selfinsured.” An employer has an “insured” plan if it contracts with an insurance company to bear the financial risk of paying its employees’ health insurance claims. An employer has a “self-insured” plan if it bears the financial risk of paying its employees’ claims. Many self-insured employers use third-party administrators to administer their plans and process claims. See Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008). The appellees here fall into both categories.
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Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4).2

HHS requested assistance from the Institute of Medicine

(“IOM”), a nonprofit arm of the National Academy of

Sciences, to develop guidelines regarding which preventive

services for women should be required. 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, 8726 (Feb. 15,

2012) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and

45 C.F.R. pt. 147). The IOM issued a report recommending a

list of preventive care services, including all contraceptive

methods approved by the Food and Drug Administration

(“FDA”). The regulatory guidelines accordingly included

“[a]ll Food and Drug Administration . . . approved

contraceptive methods, sterilization procedures, and patient

education and counseling for all women with reproductive

capacity,” as prescribed by a health care provider. 77 Fed.

Reg. at 8725 (alteration in original). The relevant regulations

require coverage of the contraceptive services recommended

in the guidelines. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29

C.F.R.

§ 2590.715-2713(a)(1)(iv);

45

C.F.R.

§ 147.130(a)(1)(iv).

2 The ACA’s preventive care requirements apply only to nongrandfathered group health plans and health insurance issuers offering non-grandfathered health insurance coverage. See 45 C.F.R. § 147.140 (exempting “grandfathered” plans— “coverage provided by a group health plan, or a group or individual health insurance issuer, in which an individual was enrolled as of March 23, 2010,” the date on which the ACA was enacted “for as long as it maintains that status under the rules of this section”).

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Case: 13-3536 Document: 003111874118 Page: 14 Date Filed: 02/11/2015
The implementing regulations authorize an exemption from contraceptive coverage for the group health plan of a “religious employer.” 45 C.F.R. § 147.131(a). The regulations define a religious employer as a nonprofit organization described in the Internal Revenue Code provision referring to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. Id. (citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii)).
After notice-and-comment rulemaking, the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (the “Departments”) published final regulations in July 2013 that provided relief for organizations that, while not “religious employers,” nonetheless oppose coverage on account of their religious objections. These regulations include an “accommodation” for group health plans established or maintained by “eligible organizations” (and group health coverage provided in connection with such plans). See 26 C.F.R. § 54.98152713A(a), 29 C.F.R. § 2590-2713A(a), 45 C.F.R. § 147.131(b); Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pts. 2510 & 2590; and 45 C.F.R. pts. 147 & 156). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 C.F.R. § 147.131(b). To invoke this accommodation, an employer must certify that it is such an organization. Id. § 147.131(b)(4). Here, there is no dispute that the nonprofit religious organization appellees are eligible organizations under these regulations.
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Case: 13-3536 Document: 003111874118 Page: 15 Date Filed: 02/11/2015

To take advantage of the accommodation to the contraceptive coverage requirement, the eligible organization must complete the self-certification form, EBSA Form 700, issued by the Department of Labor’s Employee Benefits Security Administration, indicating that it has a religious objection to providing coverage for the required contraceptive services. The eligible organization then is to provide a copy of the form to its insurance issuer or third-party administrator. 78 Fed. Reg. at 39,875.3

3 After these suits had been filed, the Supreme Court granted

an injunction pending appeal in Wheaton College v. Burwell,

134 S. Ct. 2806 (2014), and ordered that the eligible

organization applicant need not use EBSA Form 700 to notify

its insurance issuer or third-party administrator of its religious

objection to the contraceptive coverage requirement; instead,

if the organization notifies the government in writing of its

objection, the government is enjoined from enforcing the

contraceptive coverage requirement against the organization.

Id. at 2807. In response, interim final regulations were issued

in August 2014 allowing an eligible organization to opt out

by notifying HHS directly, rather than notifying its insurance

issuer or third-party administrator; the eligible organization

also need not use EBSA Form 700. Coverage of Certain

Preventive Services Under the Affordable Care Act, 79 Fed.

Reg. 51,092 (Aug. 27, 2014) (codified at 26 C.F.R. pt. 54; 29

C.F.R. pts. 2510 & 2590; and 45 C.F.R. pt. 147); see also 29

C.F.R. § 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R.

§ 147.131(c)(1)(ii).

We conclude here that the

accommodation, even when utilizing EBSA Form 700, poses

no substantial burden. To the extent that the Supreme Court’s

order in Wheaton may be read to signal that the alternative

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The submission of the form has no real effect on the plan participants and beneficiaries. They still have access to contraception, without cost sharing, through alternate mechanisms in the regulations.4 Under these regulations, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it objects on religious grounds. 78 Fed. Reg. at 39,874. As a result, either the health insurance issuer or the third-party administrator is required by regulation to provide separate payments for contraceptive services for plan participants and beneficiaries. The ACA’s prohibition on cost sharing for preventive services, including contraception, bars the insurance issuer or third-party administrator from imposing any premium or fee on the group health plan, or plan participants and beneficiaries. Furthermore, the accommodation prohibits the insurance issuer or third-party administrator from imposing such fees on the eligible organization. See 42 U.S.C.
notification procedure is less burdensome than using EBSA Form 700, we also conclude that the alternative compliance mechanism set forth in the August 2014 regulations poses no substantial burden.
4 The Supreme Court has recognized that the accommodation ensures that employees of entities with religious objections have the same access to all FDA-approved contraceptives as employees of entities without religious objections to providing such coverage. “The effect of the HHS-created accommodation on the women employed . . . would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).
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§ 300gg-13(a); 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2)(ii); 45 C.F.R. § 147.131(c)(2)(ii). The insurance issuer or thirdparty administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the [eligible organization’s] group health plan” and “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 29 C.F.R. § 2590.7152713A(c)(2)(i)(A), (ii); 45 C.F.R. § 147.131(c)(2)(i)(A), (ii). The third-party administrator may seek reimbursement for payments for contraceptive services from the federal government. 29 C.F.R. § 2590.715-2713A(b)(3).
Furthermore, the health insurance issuer or third-party administrator, not the eligible organization, provides notice to the plan participants and beneficiaries regarding contraceptive coverage “separate from” materials that are distributed in connection with the eligible organization’s group health coverage, specifying that “the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services, and must provide contact information for questions and complaints.” See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d).5 This is in accordance with the preventive services requirement of the ACA.
5 As part of this separate notice regime, eligible organizations do not need to provide the names of their beneficiaries to their insurance issuers or third-party administrators, or otherwise coordinate notices with them. See Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254 (D.C. Cir. 2014) (agreeing that “[n]o regulation related to the
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2. RFRA Challenge to the Accommodation
The appellees challenge the ACA’s contraceptive coverage requirement as posing a substantial burden on their religious exercise, in violation of RFRA. RFRA places requirements on all federal statutes that impact a person’s exercise of religion, even when that federal statute is a rule of general applicability. 42 U.S.C. § 2000bb-1(a).6 Under RFRA, the “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. § 2000bb-1(b).
accommodation imposes any such duty on Plaintiffs”); see also 29 C.F.R. § 2590.715-2713A(b)(4) (“A third party administrator may not require any documentation other than a copy of the self-certification from the eligible organization or notification from the Department of Labor”); id. § 2590.7152713A(c)(1)(i) (“When a copy of the self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage . . . . An issuer may not require any further documentation from the eligible organization regarding its status as such.”).
6 Because the issue was not raised before us, we assume that RFRA is constitutional as applied to federal laws and regulations. But see City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (holding that Congress did not have authority under the Fourteenth Amendment to impose RFRA on state or local laws).
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Case: 13-3536 Document: 003111874118 Page: 19 Date Filed: 02/11/2015
Congress enacted RFRA in 1993 in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Supreme Court rejected the balancing test for evaluating claims under the Free Exercise Clause of the First Amendment set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), under which the Court asked whether the challenged law substantially burdened a religious practice and, if it did, whether that burden was justified by a compelling governmental interest. The Smith Court concluded that the continued application of the compellinginterest test would produce a constitutional right to ignore neutral laws of general applicability and would “open the prospect of constitutionally required religious exemptions from civil obligations of almost every conceivable kind,” which the First Amendment does not require. 494 U.S. at 888-89. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” Id. at 885 (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988)). Making an individual’s obligation to obey a generally applicable law contingent upon the individual’s religious beliefs, except where the state interest is compelling, permits that individual, “by virtue of his beliefs, ‘to become a law unto himself,’” which “contradicts both constitutional tradition and common sense.” Id. (quoting Reynolds v. United States, 98 U.S. 145, 167 (1878)).
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Case: 13-3536 Document: 003111874118 Page: 20 Date Filed: 02/11/2015
Congress then passed RFRA to legislatively overrule the Smith standard for analyzing claims under the Free Exercise Clause of the First Amendment. RFRA’s stated purposes are: (1) to restore the compelling-interest test as set forth in Sherbert and Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by the government. 42 U.S.C. § 2000bb(b). The Supreme Court has characterized RFRA as “adopt[ing] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
B. Factual Background and Procedural History7
We review here the following District Court opinions: two preliminary injunctions issued in Geneva College v. Sebelius, and a preliminary injunction and permanent injunction issued in the related cases of Most Reverend David A. Zubik v. Sebelius and Most Reverend Lawrence T. Persico v. Sebelius. The Zubik and Persico appeals were consolidated and now have also been consolidated with the Geneva appeal.
1. Geneva Appellee
Appellee Geneva College (“Geneva”) is a nonprofit institution of higher learning established by the Reformed Presbyterian Church of North America. Geneva believes that
7 The District Courts in these cases had jurisdiction pursuant to 28 U.S.C. § 1331, and this Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291, 1292(a)(1).
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it would be sinful and immoral for it to intentionally participate in, pay for, facilitate, enable, or otherwise support access to abortion (including emergency contraceptives Plan B and ella, and two intrauterine devices, all of which Geneva characterizes as causing abortion) because such participation violates religious prohibitions on murder. Geneva contracts with an insurance issuer for its student and employee health insurance plans.
2. Geneva District Court Opinions
The District Court granted Geneva’s motion for a preliminary injunction with respect to its student plan on June 18, 2013, and enjoined the government from applying or enforcing 42 U.S.C. § 300gg-13(a)(4) and requiring that Geneva’s student health insurance plan, its plan broker, or its plan insurer provide “abortifacients” contrary to Geneva’s religious objections. (J.A. 35-36.) The District Court began by stating that the Supreme Court has cautioned courts to be reluctant to “dissect religious beliefs” when engaging in a substantial burden analysis. (J.A. 24 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981)).)
The District Court concluded that Geneva had shown a likelihood of success on the merits with respect to the presence of a substantial burden under RFRA and found that three Supreme Court free exercise cases supported Geneva’s argument regarding the presence of a substantial burden under RFRA. First, it noted that in Yoder, 406 U.S. at 23435, a state compulsory education law for children up to age sixteen, with a penalty of a criminal fine, violated the free exercise rights of the Amish plaintiffs. Second, in Sherbert, 374 U.S. at 410, the state could not withhold unemployment
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benefits from a worker who refused employment on the grounds that working Saturdays violated her religious beliefs. Third, in Thomas, 450 U.S. at 719, the state could not deny unemployment benefits to a worker whose religious beliefs forbade his participation in manufacturing tanks for use by the military. The District Court interpreted these cases as standing for the proposition that these indirect burdens on religious exercise are substantial enough to be cognizable under RFRA. The District Court concluded that Geneva had only two choices under the regulations—either provide the objected-to coverage or drop its health insurance—and by being forced to choose between those two options, both repugnant to its religious beliefs,8 Geneva faced a substantial burden.
The District Court then granted Geneva’s second motion for a preliminary injunction, this time with respect to
8 We recognize that the appellees believe providing health insurance to their employees and students is part of their religious commitments. The appellees urge, at most, that dropping their health insurance coverage would be a violation of their moral beliefs, but they do not argue that it would be, in and of itself, another substantial burden imposed on their religious exercise. (Geneva Br. at 5 (“To fulfill its religious commitments and duties in the Christ-centered educational context, the College promotes the spiritual and physical wellbeing and health of its employees and students. This includes the provision of general health insurance to employees and their dependants and the facilitation of a student health plan.”); Zubik/Persico Br. at 6 (“As part of overseeing their affiliates and as part of Catholic social teaching, the Dioceses provide self-insured health plans for Diocesan entities, including the Affiliates.”).)
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its employee plan, on December 23, 2013. The District Court again enjoined the government from enforcing 42 U.S.C. § 300gg-13(a)(4) and requiring that Geneva’s employee health insurance plan, its plan broker, or its plan insurer provide “abortifacients” contrary to Geneva’s religious objections. (J.A. 67-68.) The District Court concluded that Geneva had shown a likelihood of success on the merits as to the presence of a substantial burden because the self-certification process forced Geneva to facilitate access to services it finds religiously objectionable. First, the District Court emphasized that a court must assess the intensity of the coercion and pressure from the government, rather than looking at the merits of the religious belief. (J.A. 58 (citing Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013), cert. denied sub nom. Burwell v. Korte, 134 S. Ct. 2903 (2014), and Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir.), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).) The District Court analogized to cases involving the contraceptive coverage mandate for entities not eligible for the accommodation, such as the Hobby Lobby opinion in the Court of Appeals for the Tenth Circuit, which found that the substantial fines and penalties imposed on an entity that refused to offer health care coverage to its employees at all, or refused to provide coverage for the mandated preventive services, constituted a substantial burden.
The District Court was convinced by Geneva’s explanation that, although Geneva must engage in the same conduct that it did before the ACA—namely, notify the insurance carrier that it would not provide coverage for the objected-to services—the effect of that conduct is now different. Before the ACA, Geneva’s notification resulted in
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its employees being unable to obtain coverage for contraceptive services; after the ACA, Geneva’s employees are still provided access to the services as a matter of law. “Under the ACA, Geneva has two choices: (1) provide insurance coverage to its employees, which will result in coverage for the objected to services; or (2) refuse to provide insurance coverage for its employees, which will result in fines, harm to its employees’ well-being and competitive disadvantages. Both options require Geneva to act contrary to its religious duties and beliefs.” (J.A. 61 n.12.)
Geneva argues that the District Court was correct that a substantial burden is present here because (1) complying with either the contraceptive coverage requirement or the accommodation would cause Geneva to “trigger,” “facilitate,” or be “complicit” in the commission of acts that it likens to abortion; and (2) the fines that Geneva faces for its refusal to comply with the contraceptive coverage requirement or the accommodation would pressure it to conform.
3. Zubik/Persico Appellees
Appellees in the Zubik and Persico cases include: the Bishop of Pittsburgh, David A. Zubik, and the Bishop of Erie, Lawrence T. Persico; the Diocese of Pittsburgh and the Diocese of Erie, both of which qualify for the exemption to the contraceptive coverage requirement under 45 C.F.R. § 147.131(a); and Catholic Charities of the Diocese of Pittsburgh, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, which are all nonprofit organizations affiliated with the Catholic Church. The Catholic religious nonprofit organizations are controlled by their respective Dioceses and operate in accordance with Catholic doctrine and teachings. The Bishops oversee the
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management of the affiliated nonprofits with regard to adherence to Catholic doctrine. The Catholic faith prohibits providing, subsidizing, initiating, or facilitating insurance coverage for sterilization services, contraceptives, other drugs that the Catholic Church believes to cause abortion, and related reproductive educational and counseling services. The Dioceses provide self-insured health plans to the nonprofits and contract with third-party administrators to handle claims administration of the plans. As a result of their provision of coverage to the nonprofits, the Dioceses, which are otherwise exempt, must comply with the contraceptive coverage requirement as to the nonprofits.
4. Zubik/Persico District Court Opinions
The District Court issued a preliminary injunction that applied to both the Zubik and Persico cases on November 21, 2013, and converted that injunction into a permanent injunction on December 20, 2013.
The District Court characterized the issue before it as “whether [the appellees], being non-secular in nature, are likely to succeed on the merits of proving that their right to freely exercise their religion has been substantially burdened by the ‘accommodation’ which requires the Bishops of two separate Dioceses . . . to sign a form which thereby facilitates/initiates the provision of contraceptive products, services, and counseling.” (J.A. 116.) The Zubik/Persico appellees conceded that they have provided similar information as is required by the self-certification form to their third-party administrator in the past. However, their past actions barred the provision of contraceptive products, services, or counseling. Now, under the ACA, this information will be used to “facilitate/initiate the provision of
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contraceptive products, services, or counseling – in direct contravention to their religious tenets.” (Id.) Accordingly, the District Court concluded that the government is impermissibly asking the appellees for documentation for what the appellees sincerely believe is an immoral purpose, and thus “they cannot provide it.” (J.A. 117.) In conclusion, the District Court acknowledged that the accommodation allows the appellees to avoid directly paying for contraceptive services by shifting responsibility for providing contraceptive coverage. Despite this fact, because the appellees had a sincerely held belief that this shift in responsibility did not exonerate them from the moral implications of the use of contraception, the accommodation imposed a substantial burden.

Furthermore, the District Court held that the differing

application of the exemption and the accommodation—the

former applying to the Catholic Church, and the latter

applying to Catholic nonprofit organizations—has the effect

of dividing the Catholic Church, thereby imposing a

substantial burden.

“[T]he religious employer

‘accommodation’ separates the ‘good works (faith in action)

employers’ from the ‘houses of worship employers’ within

the Catholic Church by refusing to allow the ‘good works

employers’ the same burden-free exercise of their religion”

under the exemption. (J.A. 118.) The District Court

questioned why religious employers who share the same

religious tenets are not exempt, or why all religious

employers do not fall within the accommodation, such that

“even though [the appellees] here share identical, religious

beliefs, and even though they share the same persons as the

religious heads of their organizations, the heads of [the

appellees’] service organizations may not fully exercise their

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right to those specific beliefs, when acting as the heads of the charitable and educational arms of the Church.” (J.A. 118, 120.) The District Court concluded that “the religious employer ‘exemption’ enables some religious employers to completely eliminate the provision of contraceptive products, services, and counseling through the Dioceses’ health plans and third parties,” whereas “the religious employer ‘accommodation’ requires other religious employers (often times the same member with the same sincerely-held beliefs) to take affirmative actions to facilitate/initiate the provision of contraceptive products, services, and counseling – albeit from a third-party.” (J.A. 120-21.)
The Zubik/Persico appellees argue that the District Court was correct in finding a substantial burden because (1) they interpret the accommodation to require them to authorize and designate a third party to add the objectionable coverage to their plans, in violation of their sincerely held religious beliefs that they cannot provide or facilitate that coverage; and (2) the different scope of the religious employer exemption and the accommodation impermissibly splits the Catholic Church.
The government, as appellant in both the Zubik/Persico and Geneva appeals, argues that the District Courts were incorrect and the appellees are not subject to a substantial burden, because the submission of the form is not in itself burdensome and does not give rise to the coverage. Rather, federal law requires third parties—insurance issuers and third-party administrators—to provide coverage after the appellees refuse to provide contraceptive coverage themselves. By invoking the accommodation process, the appellees do not facilitate the provision of contraceptive
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coverage by third parties. Rather, the third parties providing coverage do so as a result of legal obligations imposed by the ACA.
II. DISCUSSION
A. Standard of Review
We employ a tripartite standard of review for preliminary injunctions. “We review the District Court’s findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.” K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (quoting Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252 (3d Cir. 2002)). The same framework applies to the review of a grant of a permanent injunction. See United States v. Bell, 414 F.3d 474, 477-78 (3d Cir. 2005).9 Because we conclude that the appellees have not demonstrated a likelihood of success on the merits of their
9 “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). It is the plaintiff’s burden to establish every element in its favor. P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005). A permanent injunction requires actual success on the merits. See Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001).
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RFRA claim, we need not reach the other prongs of the injunction analysis.
B. Likelihood of Success as to Substantial Burden
1. Trigger/Facilitation/Complicity
Argument
We first must identify what conduct the appellees contend is burdensome to their religious exercise. It is not the act of filling out or submitting EBSA Form 700 itself. The appellees conceded at oral argument that the mere act of completing EBSA Form 700 does not impose a burden on their religious exercise.
The appellees’ essential challenge is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees and students. The appellees reframed this proposition at oral argument, stating that the accommodation requires them to be “complicit” in sin. Appellees urge that there is a causal link between providing notification of their religious objection to providing contraceptive coverage and the offering of contraceptive coverage by a third party. That link, they argue, makes them complicit in the provision of certain forms of contraception, which is prohibited by their religious beliefs.
Without testing the appellees’ religious beliefs, we must nonetheless objectively assess whether the appellees’ compliance with the self-certification procedure does, in fact, trigger, facilitate, or make them complicit in the provision of
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contraceptive coverage. Through RFRA’s adoption of the Supreme Court’s pre-Smith free exercise jurisprudence, Congress has required qualitative assessment of the merits of the appellees’ RFRA claims. See Korte, 735 F.3d at 705 (Rovner, J., dissenting).10 “It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant’s freedom to exercise religious rights.” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303 (1985). Furthermore, the Supreme Court has stated that “[a] governmental burden on religious liberty is not insulated from review simply because it is indirect; but the nature of the burden is relevant to the standard that the government must meet to justify the burden.” Bowen v. Roy, 476 U.S. 693, 706-07 (1986) (citation omitted). These principles were applied in Lyng, where the Supreme Court recognized that the Native American respondents’ beliefs were sincere, and that the government’s proposed actions would have severe adverse effects on their religious practice. However, the Court disagreed that the burden on the respondents’ belief was “heavy enough to violate the Free Exercise Clause unless the
10 We note that the Korte majority opinion may have been undermined by the later decision of the Court of Appeals for the Seventh Circuit in Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014), petition for cert. filed, No. 14392 (Oct. 3, 2014). The majority opinion in Notre Dame, decided after Korte but before Hobby Lobby, analyzes the mechanics of the accommodation and weakens the Korte majority’s urge for deference. This type of analysis remains good law after Hobby Lobby. See Priests for Life, 772 F.3d 229, 247 (D.C. Cir. 2014).
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Government can demonstrate a compelling need to complete the . . . road to engage in timber harvesting in the . . . [challenged] area.” 485 U.S. at 447 (emphasis added).
While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened? “[T]here is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept [the appellees’] characterization of the regulatory scheme on its face.” Mich. Catholic Conference & Catholic Family Servs., 755 F.3d 372, 385 (6th Cir. 2014) (quoting Roman Catholic Archbishop of Wash. v. Sebelius, 19 F. Supp. 3d 48, 71 (D.D.C. 2013)). We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving into the appellees’ beliefs. See, e.g., Korte, 735 F.3d at 710 (Rovner, J., dissenting). For example, the court in Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008), “[a]ccept[ed] as true the factual allegations that Kaemmerling’s beliefs are sincere and of a religious nature— but not the legal conclusion, cast as a factual allegations, that his religious exercise is substantially burdened.” The court further explained: “we conclude that Kaemmerling does not allege facts sufficient to state a substantial burden on his
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religious exercise because he cannot identify any ‘exercise’ which is the subject of the burden to which he objects.” Id.11
The Supreme Court in Hobby Lobby evaluated whether the requirement to provide contraceptive coverage absent the accommodation procedure substantially burdened the religious exercise of the owners of closely-held, for-profit corporations. The issue of whether there is an actual burden was easily resolved in Hobby Lobby, since there was little doubt that the actual provision of services did render the plaintiffs “complicit.” And in Hobby Lobby, the Court came to its conclusion that, without any accommodation, the contraceptive coverage requirement imposed a substantial burden on the religious exercise of the for-profit corporations, because those plaintiffs were required to either provide health insurance that included contraceptive coverage, in violation of their religious beliefs, or pay substantial fines.12 See 134
11 The Zubik/Persico appellees argue that we should not independently analyze the burdens imposed on them, or the substantiality of that burden, because the government stipulated to facts contained in the appellees’ declarations— particularly, that the appellees believe that participation in the accommodation, including signing the self-certification form, facilitates moral evil in violation of Catholic doctrine. The appellees are mistaken, because the government’s factual stipulation does not preclude this Court from determining the contours of the asserted burden or whether the burden is substantial. 12 Indeed, Justice Alito’s majority opinion in Hobby Lobby comments favorably on the accommodation procedure at issue here, which separates an eligible organization from the objected-to contraceptive services:
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HHS itself has demonstrated that it has at its

disposal an approach that is less restrictive than

requiring employers to fund contraceptive

methods that violate their religious beliefs. As

we explained above, HHS has already

established an accommodation for nonprofit

organizations with religious objections. Under

that accommodation, the organization can self-

certify that it opposes providing coverage for

particular contraceptive services. If the

organization makes such a certification, the

organization’s insurance issuer or third-party

administrator must “[e]xpressly exclude

contraceptive coverage from the group health

insurance coverage provided in connection with

the group health plan” and “[p]rovide separate

payments for any contraceptive services

required to be covered” without imposing “any

cost-sharing requirements . . . on the eligible

organization, the group health plan, or plan

participants

or

beneficiaries.”

We do not decide today whether an

approach of this type complies with RFRA for

purposes of all religious claims. At a minimum,

however, it does not impinge on the plaintiffs’

religious belief that providing insurance

coverage for the contraceptives at issue here

violates their religion, and it serves HHS’s

stated

interests

equally

well.

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S. Ct. at 2775-76; see also Priests for Life, 772 F.3d at 245. Here, the appellees are not faced with a “provide” or “pay” dilemma because they have a third option—notification pursuant to the accommodation—to avoid both providing contraceptive coverage to their employees and facing penalties for noncompliance with the contraceptive coverage requirement.
The appellees urge that a burden exists here because the submission of the self-certification form triggers, facilitates, and makes them complicit in the provision of objected-to services. But after testing that assertion, we cannot agree that the submission of the self-certification form has the effect the appellees claim. First, the self-certification form does not trigger or facilitate the provision of contraceptive coverage because coverage is mandated to be otherwise provided by federal law. Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services. As Judge Posner has explained, this is not a situation where the self-certification form enables the provision of the very contraceptive services that the appellees find sinful. Rather, “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” Notre Dame, 743 F.3d at 554. Thus, federal law, not the submission of the self-certification form, enables the provision of contraceptive coverage.
Hobby Lobby, 134 S. Ct. at 2782 (alterations in original) (footnotes omitted) (citations omitted).
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The Court of Appeals for the Sixth Circuit adopted Judge Posner’s logic that the obligation to cover contraception is not triggered by the act of self-certification. Rather, it is triggered by the force of law—the ACA and its implementing regulations. See Mich. Catholic Conference, 755 F.3d at 387 (“Submitting the self-certification form to the insurance issuer or third-party administrator does not ‘trigger’ contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.”). Most recently, and after the Supreme Court’s opinion in Hobby Lobby, the Court of Appeals for the D.C. Circuit agreed with these courts’ explanations of the mechanics of the accommodation. See Priests for Life, 772 F.3d at 252 (“As the Sixth and Seventh Circuits have also concluded, the insurers’ or [the third-party administrators’] obligation to provide contraceptive coverage originates from the ACA and its attendant regulations, not from Plaintiffs’ self-certification or alternative notice.”). Thus, submitting the self-certification form means only that the eligible organization is not providing contraceptive coverage and will not be subjected to penalties. By participating in the accommodation, the eligible organization has no role whatsoever in the provision of the objected-to contraceptive services.13
13 Geneva argues that there is no guarantee that its employees and students would obtain the objected-to contraceptive coverage if they were not enrolled in Geneva’s health plans. Therefore, Geneva asserts, the obligation to provide contraceptive coverage arises only because it sponsors an employee or student health plan. Geneva cites the following passage from Notre Dame in support: “By refusing to fill out
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Moreover, the regulations specific to the Zubik and Persico appellees’ self-insured plan are no different in this respect, and in no way cause the appellees to facilitate or trigger the provision of contraceptive coverage. Those Department of Labor regulations state that EBSA Form 700 “shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3-16(b). The Zubik/Persico appellees argue that these regulations cause it to “facilitate” the provision of contraceptives because the signed selfcertification form authorizes the third-party administrator to serve as the plan administrator. However, this purported
the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.” 743 F.3d at 554 (emphasis added). However, Geneva’s argument is unavailing. The provision of contraceptive coverage is not dependent upon Geneva’s contract with its insurance company. “Once [the appellees] opt out of the contraceptive coverage requirement, . . . contraceptive services are not provided to women because of [the appellees’] contracts with insurance companies; they are provided because federal law requires insurers and TPAs to provide insurance beneficiaries with coverage for contraception.” Priests for Life, 772 F.3d at 253. “RFRA does not entitle [the appellees] to control their employees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled.” Id. at 256.
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causal connection is nonexistent. The eligible organization has no effect on the designation of the plan administrator; instead, it is the government that treats and designates the third-party administrator as the plan administrator under ERISA. See Notre Dame, 743 F.3d at 555. “[The appellees] submit forms to communicate their decisions to opt out, not to authorize [the third-party administrators] to do anything on their behalf. The regulatory treatment of the form as sufficient under ERISA does not change the reality that the objected-to services are made available because of the regulations, not because [the appellees] complete a selfcertification.” Priests for Life, 772 F.3d at 254-55. Indeed, this “opt-out” is just that—an indication that the eligible organization chooses not to provide coverage for the objected-to services.
Moreover, the submission of the self-certification form does not make the appellees “complicit” in the provision of contraceptive coverage. If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage. Ultimately, the regulatory notice requirement does not necessitate any action that interferes with the appellees’ religious activities. “The organization must send a single sheet of paper honestly communicating its eligibility and sincere religious objection in order to be excused from the contraceptive coverage requirement.” Id. at 249. The appellees “need only reaffirm [their] religiously based opposition to providing contraceptive coverage, at which point third parties will provide the coverage separate and apart from [the appellees’] plan of benefits.” Priests for Life v. U.S. Dep’t of Health & Human Servs., 7 F. Supp. 3d 88,
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104 (D.D.C. 2013), aff’d, Priests for Life, 772 F.3d 229 (D.C. Cir. 2014). The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection. “RFRA does not grant [the appellees] a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.” Priests for Life, 772 F.3d at 251. “The fact that the regulations require the insurance issuers and third-party administrators to modify their behavior does not demonstrate a substantial burden on the [appellees].” Mich. Catholic Conference, 755 F.3d at 389.14
14 A hypothetical example serves as a useful tool to demonstrate the fallacy in the appellees’ characterization of the accommodation: Assume that a person, John Doe, has a job that requires twenty-four-hour coverage, such as an emergency room doctor or nurse. John Doe is unable to work his shift on a certain Tuesday, as that day is a religious holiday that mandates a day of rest. As a result, John Doe believes that it is inappropriate for anyone to work on that holiday. John Doe can request time off by filling out a certain form, but he will be penalized if he fails to show up for work without appropriately requesting time off. However, by filling out this form, he believes that he will facilitate or trigger or be complicit in someone else working in his place on the religious holiday. John Doe sincerely believes that the simple filling out of the time-off request imposes a substantial burden on his religious beliefs. In this example, John Doe, like the appellees, is able to express his religious objection to working on a religious holiday by declining to work that day.
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Thus, we cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise. The Supreme Court has consistently rejected the argument that an independent obligation on a third party can
John Doe’s time-off request indicates that he will not be complicit in working on the religious holiday. Furthermore, declining to work on that Tuesday does not serve as a trigger or facilitator because one of his other colleagues will be forced to work that day, regardless of whether John Doe works or not. However, just because John Doe does not wish to be associated with or play any role in the result (working on a religious holiday), does not mean the conduct to which he objects (filling out the time-off request form) substantially burdens his free exercise of religion. Just as we cannot conclude that John Doe’s religious exercise is being burdened by filling out the form, we cannot conclude that the appellees’ religious exercise is burdened by filling out the selfcertification form. Furthermore, any “coercive” force attached to John Doe’s refusal to fill out the time-off request is similar to the fines that the appellees face if they refuse to either participate in the accommodation or provide contraceptive coverage. In any event, such “coercive” force is relevant only if the conduct itself actually does substantially burden one’s religious exercise. That is not the case in this analogy, and it is not the case for the appellees.
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impose a substantial burden on the exercise of religion in violation of RFRA, as we discuss below. Pre-Smith free exercise cases, which RFRA was crafted to resurrect, have distinguished between what a challenged law requires the objecting parties to do, and what it permits another party— specifically, the government—to do.
In Bowen, the Supreme Court determined that the Free Exercise Clause did not require the government to accommodate a religiously based objection to the statutory requirement that a Social Security number be provided to applicants for certain welfare benefits. Roy, a Native American, argued that the government’s use of his daughter’s Social Security number would “‘rob the spirit’ of his daughter and prevent her from attaining greater spiritual power.” 476 U.S. at 696. Roy’s claim was unsuccessful because “[t]he Federal Government’s use of a Social Security number for . . . [his daughter] d[id] not itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion.” Id. at 700. Rather, Roy was attempting to use the Free Exercise Clause to dictate how the government should transact its business.
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist
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that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” . . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.
Id. at 699-700 (quoting Sherbert, 374 U.S. at 412 (Douglas, J., concurring)).
And, echoing the principles of Bowen, in Lyng, members of Native American tribes claimed that the federal government violated their rights under the Free Exercise Clause by permitting timber harvesting and construction on land used for religious purposes. 485 U.S. at 441-42. The Supreme Court concluded that the Free Exercise Clause “does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions.” Id. at 450-51.
Building on this line of cases, the Court of Appeals for the D.C. Circuit concluded that a federal prisoner failed to
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state a RFRA claim when he sought to enjoin application of the DNA Analysis Backlog Elimination Act on the basis that DNA sampling, storage, and collection without limitations violated his religious beliefs about the proper use of the “building blocks of life.” Kaemmerling, 553 F.3d at 674. Kaemmerling could not state a claim that his religious exercise was substantially burdened because he did not identify any religious exercise that was subjected to the burden to which he objected:
The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way—it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.”
Id. at 679 (alteration in original) (quoting Thomas, 450 U.S. at 718). “Like the parents in Bowen, Kaemmerling’s opposition to government collection and storage of his DNA profile does not contend that any act of the government pressures him to change his behavior and violate his religion, but only seeks to require the government itself to conduct its affairs in conformance with his religion.” Id. at 680.
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Thus, the case law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.
These cases confirm that we can, indeed should, examine the nature and degree of the asserted burden to decide whether it amounts to a substantial burden under RFRA. Furthermore, we must assess how the objected-to action relates to the appellees’ religious exercise, and whether the appellees’ objections focus on the action itself or the result of the action, i.e., the obligations placed upon a third party.
Far from “triggering” the provision of contraceptive coverage to the appellees’ employees and students, EBSA Form 700 totally removes the appellees from providing those services. “[T]he regulations provide an opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves [the appellees] of any obligation to contract, arrange, pay, or refer for access to contraception . . . .” Priests for Life, 772 F.3d at 252. The self-certification form requires the eligible organization or its plan to provide a copy to the organization’s insurance issuer or third-party administrator in
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order for the plan to be administered in accordance with both the eligible organization’s religious objection and the contraceptive coverage requirement. The ACA already takes into account beliefs like those of the appellees and accommodates them. “The accommodation in this case consists in the organization’s . . . washing its hands of any involvement in contraceptive coverage, and the insurer and the third-party administrator taking up the slack under compulsion of federal law.” Notre Dame, 743 F.3d at 557. The regulations accommodate the interests of religious institutions that provide health services, while not curtailing the public interest that motivates the federally mandated requirement that such services shall be provided to women free of charge. Id. at 551.
Because we find that the self-certification procedure does not cause or trigger the provision of contraceptive coverage, appellees are unable to show that their religious exercise is burdened. Even if we were to conclude that there is a burden imposed on the appellees’ religious exercise, we would be hard-pressed to find that it is substantial. Whether a burden is “substantial” under RFRA is a question of law, not a question of fact. See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011). RFRA’s reference to “substantial” burdens expressly calls for a qualitative assessment of the burden that the accommodation imposes on the appellees’ exercise of religion. Korte, 735 F.3d at 705 (Rovner, J., dissenting). RFRA calls for a threshold inquiry into the nature of the burden placed on the appellees’ free exercise of religion: “substantial” is a term of degree that invites the courts to distinguish between different types of burdens. Id. at 708.
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We have stated that a substantial burden exists where (1) “a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [persons] versus abandoning one of the precepts of his religion in order to receive a benefit”; or (2) “the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.” See Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007) (interpreting a related statute, the Religious Land Use and Institutionalized Persons Act, which applies to prisoner and land use cases). However, a government action does not constitute a substantial burden, even if the challenged action “would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” if the government action does not coerce the individuals to violate their religious beliefs or deny them “the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449. Under this definition, can the submission of the self-certification form, which relieves the appellees of any connection to the provision of the objectedto contraceptive services, really impose a “substantial” burden on the appellees’ free exercise of religion? We think not. While Hobby Lobby rejected the argument that the burden was too attenuated because the actual use of the objected-to contraceptive methods was a matter of individual choice, here, where the actual provision of contraceptive coverage is by a third party, the burden is not merely attenuated at the outset but totally disconnected from the appellees.
The reasoning of the District Courts was misguided in two ways. First, the District Courts accepted the appellees’ characterization of the accommodation as causing them to
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“facilitate,” act as the “central cog,” or serve as the “necessary stimulus” for the provision of the objected-to contraceptive services. (J.A. 60-61.) For the reasons we have detailed, we cannot accept that characterization as a matter of fact or law. Second, the District Courts focused on the coercive effect, i.e., the fact that the appellees faced a choice: submit the self-certification form and “facilitate” the provision of contraceptive coverage, or pay fines for noncompliance. However, now that we have dispelled the notion that the self-certification procedure is burdensome, we need not consider whether the burden is substantial, which involves consideration of the intensity of the coercion faced by the appellees. We will accordingly reverse the challenged injunctions.
2. Dividing the Catholic Church Argument
in Zubik/Persico
The appellees in Zubik/Persico argue that a second substantial burden is imposed on their religious exercise in that the contraceptive coverage regulatory scheme improperly partitions the Catholic Church by making the Dioceses eligible for the exemption, while the Catholic nonprofits can only qualify for the accommodation, even though all the Catholic entities share the same religious beliefs. The District Court agreed with the appellees and concluded that the contraceptive mandate “would cause a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations which fulfill portions of Dioceses’ mission. Further, any nonprofit, religious affiliated/related organizations expelled from the Dioceses’ health insurance plans would require significant
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restructuring of the plans which would adversely affect the benefits received from pooling resources.” (J.A. 76 (citation omitted).) We conclude that the inclusion of houses of worship in the exemption and religious nonprofits in the accommodation does not impose a substantial burden on the Zubik/Persico appellees.
The definition of a “religious employer” who receives an exemption from the contraceptive coverage requirement under the regulations is based on longstanding Internal Revenue Code provisions. See 45 C.F.R. § 147.131(a) (citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii)). “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, without these advantages being thought to violate the establishment clause.” Notre Dame, 743 F.3d at 560 (citation omitted) (citing Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 666, 672-73 (1970)). The Departments chose this definition from the Internal Revenue Code to categorize the entities subject to the exemption and the accommodation because that provision was a bright line that was already statutorily codified and frequently applied: “The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement.” 78 Fed. Reg. at 39,874; see also Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456, 8461 (proposed Feb. 6, 2013) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590, and 45 C.F.R. pts. 147, 148, & 156) (“[T]his definition was intended to focus the religious employer exemption on ‘the unique relationship between a house of worship and its
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employees in ministerial positions.’” (quoting 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, 46,623 (Aug. 3, 2011) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and 45 C.F.R. pt. 147))).
Furthermore, we are not persuaded that the challenged accommodation poses any burden on the exempted appellees’ religious exercise, particularly a burden that would require the appellees to “expel” the religious nonprofit organizations from the Dioceses’ health insurance plans. See, e.g., Roman Catholic Archdiocese of N.Y. v. Sebelius, 987 F. Supp. 2d 232, 252 (E.D.N.Y. 2013) (“First, it is not at all clear why the Diocesan plaintiffs would have to ‘expel’ their non-exempt affiliates from their health plans. . . . Second, even if the law did pressure the Diocesan plaintiffs to ‘expel’ their affiliates, plaintiffs do not state that the Diocesan plaintiffs’ religious beliefs require them to have all their affiliate organizations on a single health plan, such that ‘expelling’ the non-exempt affiliates would be an act forbidden by their religion.”).
Thus, we cannot agree that the different treatment afforded to the Catholic Church as a house worship versus the Catholic nonprofit organizations imposes a substantial burden in violation of RFRA.
III. CONCLUSION
We will reverse the District Courts’ orders granting the challenged injunctions. Because we conclude that the appellees have not shown a likelihood of success on the merits of their RFRA claim, based on the determination that
48

Case: 13-3536 Document: 003111874118 Page: 49 Date Filed: 02/11/2015 the accommodation does not impose a substantial burden on their religious exercise, we need not reach the question of whether the accommodation is the least restrictive means of furthering a compelling governmental interest.
49

 
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT April 21, 2015
Nos. 13-3536 & 14-1374
GENEVA COLLEGE; WAYNE HEPLER; THE SENECA HARDWOOD LUMBER COMPANY, INC.,
a Pennsylvania Corporation; WLH ENTERPRISES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler;
CARRIE E. KOLESAR
v.
SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY UNITED STATES
DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND
HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants (W.D. Pa. No. 2-12-cv-00207)
Present: MCKEE, Chief Judge, RENDELL and SLOVITER, Circuit Judges
1. Motion by Appellee Geneva College to Recall and Stay Mandate;
2. Response by Appellants to Motion to Recall and Stay Mandate.
Respectfully, Clerk/tmm
_________________________________ORDER________________________________
The foregoing Motion by Appellee Geneva College to Recall and Stay Mandate is temporarily granted pending action by the Supreme Court in Zubik v. Burwell, No. 14A1065 (S.Ct.).

Dated: May 6, 2015 tmm/cc: all counsel of record

By the Court,
s/MARJORIE O. RENDELL Circuit Judge

A True Copy:
Marcia M. Waldron, Clerk

 
 Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 1 of 26
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:12−cv−00207−JFC

CLOSED

GENEVA COLLEGE v. SEBELIUS et al Assigned to: Chief Judge Joy Flowers Conti Case in other court: 3rd circuit, 13−02814
3rd circuit, 13−03536 3rd circuit, 14−01374 Cause: 42:2000 Civil Rights: Other Plaintiff
GENEVA COLLEGE

Date Filed: 02/21/2012 Date Terminated: 07/12/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Bradley S. Tupi Tucker Arensberg 1500 One PPG Place Pittsburgh, PA 15222 594−5545 Email: btupi@tuckerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Cortman Alliance Defending Freedom 1000 Hurricane Shoals Road, NE Suite D−1100 Lawrenceville, GA 30043 (770) 339−0774 Fax: 770−339−6744 Email: dcortman@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik W. Stanley Alliance Defending Freedom 15100 N 90th St Scottsdale, AZ 85260 4804440020 Email: estanley@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory S. Baylor Alliance Defending Freedom 440 First Street NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 2023473622 Email: gbaylor@ADFlegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven H. Aden Alliance Defending Freedom 440 1st St., NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: saden@alliancedefendingfreedom.org TERMINATED: 03/19/2018

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 2 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

David J. Mongillo Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 412−566−1212 Fax: 412−594−5619 Email: dmongillo@tuckerlaw.com ATTORNEY TO BE NOTICED

Kevin H. Theriot Alliance Defending Freedom 15100 N 90th St Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: ktheriot@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Matthew S Bowman Alliance Defending Freedom 440 1st St., NW Ste 600 Washington, DC 20001 202−393−8690 Email: mbowman@alliancedefendingfreedom.org TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Plaintiff
WAYNE HEPLER in his personal capacity and as owner and operator of the sole proprietorship WLH Enterprises

represented by Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Gregory S. Baylor (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
THE SENECA HARDWOOD LUMBER COMPANY, INC. a Pennsylvania Corporation

represented by Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Gregory S. Baylor (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CARRIE E. KOLESAR

represented by Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Gregory S. Baylor (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 3 of 26

Defendant
KATHLEEN SEBELIUS in her official capacity as Secretary of the United States Department of Health and Human Services

represented by Adam Grogg U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave. NW Washington, DC 20037 202−514−2395 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave, N.W. Room 7219 Washington, DC 20530 (202) 514−3367 Fax: (202) 616−8470 Email: bradley.p.humphreys@usdoj.gov TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett U.S. Department of Justice 20 Massachusetts Avenue NW, Rm. 7310 Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert United States Attorney's Office 700 Grant Street Suite 400 Pittsburgh, PA 15219 (412) 644 3500 Email: albert.schollaert@usdoj.gov TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Eric R. Womack United States Department of Justice 20 Massachusetts Avenue NW Room 7140 Washington, DC 20001 202−514−4020 Fax: 202−616−8470 Email: eric.womack@usdoj.gov ATTORNEY TO BE NOTICED

Michael A. Comber United States Attorney's Office (PGH) 700 Grant Street Suite 4000 Pittsburgh, PA 15219 (412) 894−7485 Email: michael.comber@usdoj.gov ATTORNEY TO BE NOTICED

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 4 of 26

Defendant
HILDA SOLIS in her official capacity as Secretary of the United States Department of Labor TERMINATED: 10/18/2013

represented by Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert (See above for address) TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Eric R. Womack (See above for address) ATTORNEY TO BE NOTICED

Michael A. Comber (See above for address) ATTORNEY TO BE NOTICED

Defendant
TIMOTHY GEITHNER in his official capacity as Secretary of the United States Department of the Treasury TERMINATED: 10/18/2013

represented by Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert (See above for address) TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Eric R. Womack (See above for address) ATTORNEY TO BE NOTICED

Michael A. Comber (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Adam Grogg (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert (See above for address) TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 5 of 26

Eric R. Womack (See above for address) ATTORNEY TO BE NOTICED

Michael A. Comber (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF LABOR

represented by Adam Grogg (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert (See above for address) TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Eric R. Womack (See above for address) ATTORNEY TO BE NOTICED

Michael A. Comber (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF THE TREASURY

represented by Adam Grogg (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Albert W. Schollaert (See above for address) TERMINATED: 01/07/2013 ATTORNEY TO BE NOTICED

Eric R. Womack (See above for address)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 6 of 26

ATTORNEY TO BE NOTICED

Michael A. Comber (See above for address) ATTORNEY TO BE NOTICED

Defendant
THOMAS E. PEREZ in his official capacity as Secretary of the United States Department of Labor

represented by Adam Grogg (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JACOB J. LEW in his official capacity as Secretary of the United States Department of the Treasury

represented by Adam Grogg (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA ACLU of PA 313 Atwood Street Pittsburgh, PA 15213 412−681−7864 American Civil Liberties Union of Pennsylvania

represented by Witold J. Walczak ACLF of PA 313 Atwood Street Pittsburgh, PA 15213 (412) 681−7864 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 7 of 26

Date Filed 02/21/2012
02/21/2012 02/29/2012 03/02/2012
03/13/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012

# Docket Text
1 COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Filing fee $350, receipt number 0315−2264048), filed by GENEVA COLLEGE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Kathleen Sebelius, # 3 Summons for Hilda Solis, # 4 Summons for Timothy Geithner, # 5 Summons for US Department of Health and Human Services, # 6 Summons for US Department of Labor, # 7 Summons for US Department of the Treasury) (ksa) (Entered: 02/22/2012)
Summons Issued as to *TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY* (ksa) (Entered: 02/22/2012)
2 NOTICE of Appearance by David J. Mongillo on behalf of GENEVA COLLEGE. (Mongillo, David) (Entered: 02/29/2012)
3 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (smc ) (Entered: 03/02/2012)
4 MOTION for attorney Steven H. Aden to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2290940) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 03/13/2012)
ORDER granting 4 Motion for Steven H. Aden to Appear Pro Hac Vice for plaintiff. Signed by Judge Joy Flowers Conti on 3/16/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 03/16/2012)
5 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. KATHLEEN SEBELIUS served on 2/29/2012, answer due 3/21/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 03/16/2012)
6 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 2/29/2012, answer due 3/21/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 03/16/2012)
7 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. HILDA SOLIS served on 3/1/2012, answer due 3/22/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 03/16/2012)
8 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF LABOR served on 3/1/2012, answer due 3/22/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 03/16/2012)
9 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. TIMOTHY GEITHNER served on 2/29/2012, answer due 3/21/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 03/16/2012)
10 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF THE TREASURY served on 2/29/2012, answer due 3/21/2012. (Attachments: # 1 Exhibit) (Mongillo, David) Modified on 3/20/2012 ERROR: Wrong event selected. Document removed from public view and redocketed.

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 8 of 26

03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/16/2012 03/19/2012 03/19/2012 03/20/2012
03/21/2012 03/21/2012 03/21/2012 03/22/2012 03/22/2012

(ksa) (Entered: 03/16/2012)
13 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. KATHLEEN SEBELIUS served on 2/29/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
14 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 2/29/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
15 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. HILDA SOLIS served on 3/1/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
16 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF LABOR served on 3/1/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
17 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. TIMOTHY GEITHNER served on 2/29/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
18 SUMMONS/Return of Service Returned Executed by GENEVA COLLEGE. UNITED STATES DEPARTMENT OF THE TREASURY served on 2/29/2012, answer due 4/30/2012. (Attachments: # 1 Exhibit) "Document previously filed electronically" (ksa) (Entered: 03/20/2012)
11 MOTION for attorney Gregory S. Baylor to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2296718) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 03/19/2012)
12 Errata re 11 Motion to Appear Pro Hac Vice by GENEVA COLLEGE. Reason for Correction: correcting name on Pro Hac Vice motion. (Attachments: # 1 Proposed Order) (Tupi, Bradley) Modified on 5/2/2012. Errata was entered in error. ECF No. 11 was correct. Attorney will file this errata as a motion. (smc ) (Entered: 03/19/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 5 Summons/Returned Returned Executed, 8 Summons/Returned Returned Executed, 9 Summons/Returned Returned Executed, 7 Summons/Returned Returned Executed, 10 Summons/Returned Returned Executed, 6 Summons/Returned Returned Executed. ERROR: Wrong event selected. CORRECTION: Re−docketed as Summons/Return of Service Returned Executed USA. This message is for informational purposes only. (ksa) (Entered: 03/20/2012)
19 MOTION for attorney Erik W. Stanley to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2300493) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 03/21/2012)
ORDER granting 11 Motion for Gregory S. Baylor to Appear Pro Hac Vice for plaintiff. Signed by Judge Joy Flowers Conti on 3/21/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 03/21/2012)
20 MOTION for attorney David A. Cortman to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2301153) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 03/21/2012)
ORDER granting 19 Motion for Erik W. Stanley to Appear Pro Hac Vice for plaintiff. Signed by Judge Joy Flowers Conti on 3/22/2012. (smc ) (Entered: 03/22/2012)
ORDER granting 20 Motion for David A. Cortman to Appear Pro Hac Vice for pliantiff. Signed by Judge Joy Flowers Conti on 3/22/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 03/22/2012)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 9 of 26

04/30/2012 04/30/2012
04/30/2012 05/01/2012 05/01/2012
05/02/2012 05/02/2012 05/02/2012 05/03/2012 05/03/2012 05/03/2012 05/08/2012

21 NOTICE of Appearance by Eric R. Womack on behalf of TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Womack, Eric) (Entered: 04/30/2012)
22 MOTION to Dismiss 1 Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Womack, Eric) Modified on 5/1/2012 to add document linkage. (ksa) (Entered: 04/30/2012)
24 BRIEF in Support re 22 Motion to Dismiss, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (ksa) (Entered: 05/01/2012)
23 NOTICE of Appearance by Albert W. Schollaert on behalf of TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Schollaert, Albert) (Entered: 05/01/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 22 Motion to Dismiss. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Womack advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Brief in Support of Motion to Dismiss. This message is for informational purposes only. (ksa) (Entered: 05/01/2012)
25 MOTION for attorney Matthew S. Bowman to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2352746) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 05/02/2012)
26 MOTION for attorney Kevin H. Theriot to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2352771) by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Tupi, Bradley) (Entered: 05/02/2012)
27 NOTICE of Appearance by Bradley P. Humphreys on behalf of TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 05/02/2012)
ORDER granting 26 Motion for Kevin H. Theriot to Appear Pro Hac Vice for Plaintiff Geneva College. Signed by Judge Joy Flowers Conti on 5/3/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 05/03/2012)
ORDER granting 25 Motion for Matthew S. Bowman to Appear Pro Hac Vice for Plaintiff. Signed by Judge Joy Flowers Conti on 5/3/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 05/03/2012)
28 ORDER ON MOTION PRACTICE. Signed by Judge Joy Flowers Conti on 5/3/2012. (smc ) (Entered: 05/03/2012)
29 CASE MANAGEMENT ORDER: Rule 26 Meeting Report and Stipulation Selecting ADR Process due by 6/12/2012. Status Conference set for 7/12/2012 10:30 AM in Courtroom 5A before Judge Joy Flowers Conti. All counsel and unrepresented parties shall bring their calendars to the conference for scheduling purposes. The parties should be prepared to discuss settlement, the designation of an Alternative Dispute Resolution process and any other matter that will contribute to the prompt disposition of the case. The parties shall be prepared to address and argue all pending motions at

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 10 of 26

05/18/2012 05/22/2012 05/31/2012 05/31/2012 06/01/2012 06/07/2012 06/08/2012 07/12/2012
07/13/2012 07/17/2012 08/01/2012

the scheduling conference. Any party filing a motion prior to the scheduling conference to which a response is required but not filed shall file a motion for a continuance of the scheduling conference until the response is due. Signed by Judge Joy Flowers Conti on 5/8/2012. (smc ) (Entered: 05/08/2012)
30 First MOTION to Extend Time to amend complaint, respond to motion to dismiss, confer under Rule 26, file a report under Rule 26 by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Bowman, Matt) (Entered: 05/18/2012)
31 ORDER granting 30 Motion to Extend Time. Amended Pleadings due by 5/31/2012. Response to Motion due by 5/31/2012. Rule 26 Meeting Report and Stipulation Selecting ADR Process due by 7/2/2012. Status Conference set for 8/16/2012 04:45 PM in Courtroom 5A before Judge Joy Flowers Conti. Signed by Judge Joy Flowers Conti on 5/22/2012. (smc ) (Entered: 05/22/2012)
32 First AMENDED COMPLAINT against All Defendants, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Baylor, Gregory) Modified on 6/1/2012 to edit docket text. (ksa2) (Entered: 05/31/2012)
33 RESPONSE IN OPPOSITION to 22 Motion to Dismiss, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Baylor, Gregory) (Entered: 05/31/2012)
Update Answer Deadline: Answer due from TIMOTHY GEITHNER on 6/14/2012; KATHLEEN SEBELIUS on 6/14/2012; HILDA SOLIS on 6/14/2012; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES on 6/14/2012; UNITED STATES DEPARTMENT OF LABOR on 6/14/2012; UNITED STATES DEPARTMENT OF THE TREASURY on 6/14/2012. (ksa2) (Entered: 06/01/2012)
34 First MOTION for Extension of Time to File Answer by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 06/07/2012)
35 ORDER granting 34 Motion for Extension of Time to file response to Amended Complaint. Responsive pleading due 7/13/2012. The Rule 26(f) Report and Stipulation Selecting ADR Process shall be filed no later than August 1, 2012. The Initial Rule 16 Scheduling Conference will remain at 4:45 PM on August 16, 2012. Signed by Judge Joy Flowers Conti on 6/8/2012. (smc ) Modified on 6/11/2012. (smc ) (Entered: 06/08/2012)
36 Second MOTION for Extension of Time to File Response/Reply re 32 Amended Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) Modified on 7/13/2012 document linkage corrected. Document linked to document 32 . (ksa2) (Entered: 07/12/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 36 Motion for Extension of Time to File Response/Reply. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (ksa2) (Entered: 07/13/2012)
37 ORDER granting 36 Motion for Extension of Time. Answer due 8/2/2012. Disclosure pursuant to Rule 26(a)(1) due 8/7/2012. The Rule 26(f) Report and Stipulation Selecting ADR Process shall be filed no later that 8/21/2012. The Initial Rule 16 Scheduling Conference set for 8/16/2012 is reset for 8/22/2012 at 4:30 PM. Signed by Judge Joy Flowers Conti on 7/16/2012. (smc ) Modified on 7/18/2012 to add additional docket text. (ksa2) (Entered: 07/17/2012)
ORDER denying as moot 22 Motion to Dismiss. The motion to dismiss (ECF No. 22 ) is hereby denied as moot, plaintiffs having filed an amended complaint subsequent to the filing of the motion to dismiss. Signed by Judge Joy Flowers Conti on 8/1/2012.

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 11 of 26

08/02/2012 08/02/2012 08/02/2012 08/09/2012 08/09/2012
08/09/2012 08/10/2012
08/10/2012 08/10/2012 08/13/2012 08/14/2012

Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (tcg) (Entered: 08/01/2012)
38 MOTION for Leave to File Excess Pages by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 08/02/2012)
39 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative, to dismiss claims seven through twelve for failure to state a claim by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 08/02/2012)
40 BRIEF in Support re 39 Motion to Dismiss/Lack of Jurisdiction, or, in the alternative, to dismiss claims seven through twelve for failure to state a claim filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 08/02/2012)
41 NOTICE of Change of Firm Name by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES (Baylor, Gregory) (Entered: 08/09/2012)
42 MOTION for Extension of Time to File Response/Reply to 39 Motion to Dismiss and for Expansion of Page Limit by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Attachments: # 1 Proposed Order) (Baylor, Gregory) Modified on 8/10/2012 ERROR: MULTIPLE RELIEF MOTION FILED AS ONE RELIEF; RE−FILED BY COURT. Document linkage corrected. Document linked to document 39 (ksa2) (Entered: 08/09/2012)
MOTION for Leave to File Excess Pages by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Filed with document 42 ) (ksa2) (Entered: 08/10/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 42 Motion for Extension of Time to File Response/Reply. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney Baylor advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added/docketed Motion to File Excess Pages. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE re 42 Motion for Extension of Time to File Response/Reply. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (ksa2) (Entered: 08/10/2012)
43 ORDER granting 42 Motion for Extension of Time and Page Limit re 39 MOTION to Dismiss. Responses due by 9/13/2012. Signed by Judge Joy Flowers Conti on 08/10/2012. (smc ) (Entered: 08/10/2012)
Set/Reset Hearings: Case Management set for 8/22/2012 is reset for 10/11/2012 at 04:30 PM in Courtroom 5A before Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) (Entered: 08/10/2012)
44 ORDER granting 38 Motion for Leave to File Excess Pages. Signed by Judge Joy Flowers Conti on 8/8/2012. (smc ) (Entered: 08/13/2012)
45 MOTION to File Amicus Brief by AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA. (Attachments: # 1 Exhibit 1. Proposed Brief Amicus Curiae, # 2 Exhibit 2. Corporate Disclosure Statement, # 3 Proposed Order) (Walczak, Witold) (Entered: 08/14/2012)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 12 of 26

08/14/2012 08/15/2012 08/15/2012 08/21/2012 08/21/2012
09/07/2012 09/13/2012 09/13/2012 09/17/2012
09/19/2012
09/20/2012 09/26/2012

46 MOTION for attorney Brigitte Amiri to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2472580) by AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Walczak, Witold) (Entered: 08/14/2012)
ORDER granting 46 Motion for Brigitte Amiri to Appear Pro Hac Vice for the American Civil Liberties Union Foundation. Signed by Judge Joy Flowers Conti on 8/15/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 08/15/2012)
47 RESPONSE IN OPPOSITION to 45 Motion to File Amicus Brief, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Bowman, Matt) (Entered: 08/15/2012)
48 REPORT of Rule 26(f) Planning Meeting. (Baylor, Gregory) (Entered: 08/21/2012)
49 MOTION to Stay Discovery Pending Resolution of Defendants' Motion to Dismiss by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 08/21/2012)
50 RESPONSE IN OPPOSITION to 49 Motion to Stay, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 09/07/2012)
ORDER denying 49 Motion to Stay. After careful consideration of Defendants' Motion to Stay Discovery and the response thereto, the motion is DENIED. Signed by Judge Joy Flowers Conti on 9/12/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) Modified on 9/14/2012 to correct typos. (ksa2) (Entered: 09/13/2012)
51 RESPONSE IN OPPOSITION to 39 Motion to Dismiss/Lack of Jurisdiction, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Attachments: # 1 Affidavit of Wayne L. Hepler) (Baylor, Gregory) (Entered: 09/13/2012)
52 MOTION for Leave to File Reply Brief in Support of Motion to Dismiss by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 09/17/2012)
ORDER granting 52 Motion for Leave to File Reply Brief in Support of Motion to Dismiss by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Defendants shall file a reply brief in support of their motion to dismiss by 10/4/2012 not to exceed twenty pages in length. Signed by Judge Joy Flowers Conti on 9/18/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 09/19/2012)
Set/Reset Hearings: Status Conference / Motion hearing set for 10/11/2012 is reset for 10/31/2012 05:00 PM in Courtroom 5A before Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) (Entered: 09/20/2012)
53 ORDER denying 45 Motion to File Amicus Brief by American Civil Liberties Union of Pennsylvania and American Civil Liberties Union. Signed by Judge Joy Flowers Conti on 09/26/2012. (dmm) (Entered: 09/26/2012)

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10/04/2012 10/31/2012
11/14/2012 12/03/2012
12/03/2012 12/03/2012 12/04/2012 12/10/2012 12/18/2012 12/18/2012

54 REPLY in Support re 39 Motion to Dismiss/Lack of Jurisdiction, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) Modified on 10/5/2012 to edit docket text. (ksa2) (Entered: 10/04/2012)
Minute Entry for proceedings held before Judge Joy Flowers Conti: Motion Hearing held on 10/31/2012 re 39 MOTION to Dismiss for Lack of Jurisdiction or, in the alternative, to dismiss claims seven through twelve for failure to state a claim filed by UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. The court heard argument with respect to defendants' Motion to Dismiss. The court ordered supplemental briefing as set forth on the record. Defendants' brief due by 11/14/2012; plaintiffs' brief due by 12/03/2012. Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (Court Reporter: Karen Earley) (dmm) (Entered: 11/01/2012)
55 SUPPLEMENTAL BRIEF in Support re 39 Motion to Dismiss/Lack of Jurisdiction, pursuant to the Court's October 31, 2012 Order filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) Modified on 11/15/2012 to add additional docket text. (ksa2) (Entered: 11/14/2012)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on October 31, 2012, before Judge Joy Flowers Conti. Court Reporter Karen Earley, Telephone number 412−201−2660. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 12/10/2012. Redaction Request due 12/24/2012. Redacted Transcript Deadline set for 1/3/2013. Release of Transcript Restriction set for 3/4/2013. (kme, ) (Entered: 12/03/2012)
57 BRIEF in Opposition re 39 Motion to Dismiss/Lack of Jurisdiction, pursuant to the Court's October 31, 2012 Order, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Bowman, Matt) Modified on 12/4/2012 ERROR: Wrong event selected. Document removed from public view and redocketed. (ksa) (Entered: 12/03/2012)
58 RESPONSE to 55 Brief in Support of Motion, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. "Document previously filed electronically" (ksa) (Entered: 12/04/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 57 Brief in Opposition to Motion. ERROR: Wrong event selected. CORRECTION: Re−docketed as Response (other). This message is for informational purposes only. (ksa) (Entered: 12/04/2012)
59 NOTICE of Supplemental Authority by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES (Baylor, Gregory) (Entered: 12/10/2012)
60 RESPONSE to 59 Notice, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 12/18/2012)
61 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED

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12/19/2012 12/19/2012 12/20/2012 12/31/2012 01/07/2013 01/12/2013
01/12/2013 01/15/2013 01/16/2013 01/25/2013

STATES DEPARTMENT OF THE TREASURY re 39 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit Korte v. Sebelius, # 2 Exhibit Hobby Lobby Stores, Inc. v. Sebelius) (Humphreys, Bradley) (Entered: 12/18/2012)
62 RESPONSE and Notice of New Supplemental Authority to 61 Notice, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Attachments: # 1 Exhibit 1 (Wheaton/BAC Order)) (Bowman, Matt) (Entered: 12/19/2012)
NOTICE of Additional Supplemental Authority by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Filed with document 62 ) (ksa2) (Entered: 12/20/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 62 Response. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Bowman advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Notice of Additional Supplemental Authority. This message is for informational purposes only. (ksa2) (Entered: 12/20/2012)
63 NOTICE of Supplemental Authority, 7th Circuit Korte Opinion, by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES (Attachments: # 1 Exhibit 7th Cir Opinion Korte) (Bowman, Matthew) (Entered: 12/31/2012)
64 NOTICE of Substitution of Attorney Appearance by Michael A. Comber on behalf of TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Attorney Albert W. Schollaert terminated. (Comber, Michael) (Entered: 01/07/2013)
65 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 39 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit University of Notre Dame v. Sebelius, # 2 Exhibit Diocese of Peoria v. Sebelius, # 3 Colorado Christian University v. Sebelius) (Humphreys, Bradley) (Entered: 01/12/2013)
66 RESPONSE to Plaintiffs' Notice of Supplemental Authority to 63 Notice,, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Autocam Corporation v. Sebeliu, # 2 Exhibit Annex Medical, Inc. v. Sebelius) (Humphreys, Bradley) (Entered: 01/12/2013)
67 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 39 Motion to Dismiss/Lack of Jurisdiction. (Attachments: # 1 Exhibit Conestoga Wood Specialties Corp. v. Sebelius) (Humphreys, Bradley) (Entered: 01/15/2013)
68 RESPONSE to 67 Notice, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Bowman, Matthew) (Entered: 01/16/2013)
69 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 39 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit Persico v. Sebelius) (Humphreys, Bradley) (Entered: 01/25/2013)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 15 of 26

01/31/2013 02/12/2013 02/18/2013 02/18/2013 03/06/2013 03/11/2013 03/11/2013 03/14/2013
03/14/2013 03/22/2013 03/22/2013

70 NOTICE of Supplemental Authority by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES (Attachments: # 1 Exhibit 7th Circuit Decision) (Bowman, Matthew) (Entered: 01/31/2013)
71 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 39 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit Conestoga Specialities Corporation v. Sebelius) (Humphreys, Bradley) (Entered: 02/12/2013)
72 RESPONSE to 71 Notice, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES. (Bowman, Matthew) (Entered: 02/18/2013)
73 NOTICE of Supplemental Authority by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC., WLH ENTERPRISES (Attachments: # 1 Exhibit 1 Eighth Circuit Annex Medical, # 2 Exhibit 2 ND Tex Fort Worth) (Bowman, Matthew) (Entered: 02/18/2013)
74 MEMORANDUM OPINION and ORDER granting in part and denying in part 39 Motion to Dismiss for Lack of Jurisdiction, as set forth in the accompanying memorandum opinion and order. Signed by Judge Joy Flowers Conti on 3/6/2013. (dmm) Modified on 3/7/2013 to add additional docket text. (ksa2) (Entered: 03/06/2013)
75 MOTION for Preliminary Injunction by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Bowman, Matthew) (Entered: 03/11/2013)
76 BRIEF in Support re 75 Motion for Preliminary Injunction filed by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Exhibit 1 Affidavit of Wayne L. Hepler, # 2 Exhibit 2 Affidavit of Carrie E. Kolesar) (Bowman, Matthew) (Entered: 03/11/2013)
77 CASE MANAGEMENT ORDER: Rule 26 Meeting Report and Stipulation Selecting ADR Process due by 4/11/2013. Status Conference set for 4/18/2013 03:30 PM in Courtroom 5A before Judge Joy Flowers Conti. All counsel and unrepresented parties shall bring their calendars to the conference for scheduling purposes. The parties should be prepared to discuss settlement, the designation of an Alternative Dispute Resolution process and any other matter that will contribute to the prompt disposition of the case. The parties shall be prepared to address and argue all pending motions at the scheduling conference. Any party filing a motion prior to the scheduling conference to which a response is required but not filed shall file a motion for a continuance of the scheduling conference until the response is due. Signed by Judge Joy Flowers Conti on 3/14/2013. (smc ) Modified on 3/15/2013 to indicate correct date Rule 26 Meeting Report and Stipulation Selecting ADR Process are due by. (ksa2) (Entered: 03/14/2013)
ORDER Response/Briefing Schedule re 75 Motion for Preliminary Injunction. Response to Motion due by 3/22/2013. Signed by Judge Joy Flowers Conti on 3/14/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 03/14/2013)
78 BRIEF in Opposition re 75 Motion for Preliminary Injunction filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Gilardi v. Sebelius (D.C. Cir.)) (Humphreys, Bradley) (Entered: 03/22/2013)
79 NOTICE of Supplemental Authorities by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. re 75 Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1 Lindsay Consent PI, # 2 Exhibit 2 Sharpe Consent to PI) (Bowman, Matthew) (Entered: 03/22/2013)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 16 of 26

03/25/2013
03/25/2013
04/03/2013 04/05/2013 04/10/2013
04/12/2013 04/18/2013
04/19/2013 04/19/2013 04/19/2013
05/08/2013

ORDER setting telephone Status Conference for 3/25/2013 at 05:00 PM before Judge Joy Flowers Conti. The parties should contact chambers prior to the call and provide a telephone number at which they can be reached at that time. Signed by Judge Joy Flowers Conti on 3/25/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dmm) (Entered: 03/25/2013)
Minute Entry for proceedings held before Judge Joy Flowers Conti: Status Conference held on 3/25/2013. The parties indicated that they do not require any additional discovery and will submit the pending motion for preliminary injunction to the court on the briefing. Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (dmm) (Court Reporter: Juliann Kienzle) (Entered: 03/25/2013)
80 NOTICE of Supplemental Authorities by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. re 75 Motion for Preliminary Injunction (Attachments: # 1 Exhibit 1 Gilardi Injunction (D.C. Cir.), # 2 Exhibit 2 Hall Consent Injunction, # 3 Exhibit 3 Bick Consent Injunction) (Bowman, Matthew) (Entered: 04/03/2013)
81 MOTION for Reconsideration re 74 Order on Motion to Dismiss/Lack of Jurisdiction, by GENEVA COLLEGE. (Attachments: # 1Exhibit 1 Declaration of Kenneth A. Smith) (Baylor, Gregory) Modified on 4/8/2013. (jsp) (Entered: 04/05/2013)
ORDER Setting Response: Response to Motion Deadline. The court hereby ORDERS that Defendants' response to Plaintiff Geneva College's Motion for Reconsideration (ECF No. 81 ) shall be due by 4/19/2013. Signed by Judge Joy Flowers Conti on 4/10/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dmm) (Entered: 04/10/2013)
82 PROPOSED DISCOVERY PLAN pursuant to Rule 26(f) by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Bowman, Matthew) (Entered: 04/12/2013)
Minute Entry for proceedings held before Judge Joy Flowers Conti: Status Conference held on 4/18/2013. The parties discussed the direction of the case and the court exempted the parties from ADR. Once the court has ruled on the motion for reconsideration, a conference call will be scheduled. Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (dmm) (Court Reporter: Juliann Kienzle) (Entered: 04/19/2013)
83 FINDINGS OF FACT AND CONCLUSIONS OF LAW with respect to plaintiffs' motion for preliminary injunction (ECF No. 75 ). An appropriate order will follow. Signed by Judge Joy Flowers Conti on 4/19/2013. (dmm) (Entered: 04/19/2013)
84 ORDER granting 75 Motion for Preliminary Injunction, as set forth in the accompanying order. Signed by Judge Joy Flowers Conti on 4/19/2013. (dmm) (Entered: 04/19/2013)
85 BRIEF IN OPPOSITION to 81 Motion for Reconsideration, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) Modified on 4/22/2013 to edit docket text. (ksa2) (Entered: 04/19/2013)
86 MEMORANDUM OPINION and ORDER granting 81 Motion for Reconsideration, as set forth in the accompanying memorandum opinion and order. It is FURTHER ORDERED that defendants' motion to dismiss ECF No. 39 is Granted in Part, as follows: The claims set forth in count III and count IV are dismissed without prejudice; The arbitrary and capricious and contrary to law claims set forth in count VI are dismissed without prejudice; and the claim set forth in count V is dismissed with prejudice. It is FURTHER ORDERED that in all other respects defendants' motion to dismiss counts I, II, and VI is DENIED. Signed by Judge Joy Flowers Conti on 5/8/2013. (dmm) Modified on 5/9/2013 to add additional docket text. (ksa2) (Entered: 05/08/2013)

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05/22/2013 05/22/2013 05/24/2013 06/05/2013 06/17/2013
06/18/2013 06/18/2013 08/17/2013
09/12/2013
09/12/2013

87 MOTION for Preliminary Injunction by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 05/22/2013)
88 BRIEF in Support re 87 Motion for Preliminary Injunction filed by GENEVA COLLEGE. (Attachments: # 1 Affidavit of Timothy R. Baird) (Baylor, Gregory) (Entered: 05/22/2013)
ORDER re 87 Motion for Preliminary Injunction filed by GENEVA COLLEGE. It is HEREBY ORDERED that defendants' Response to Plaintiff's Motion for Preliminary Injunction is due by 6/5/2013. Signed by Judge Joy Flowers Conti on 5/24/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dmm) (Entered: 05/24/2013)
89 Memorandum in Opposition to Motion re 87 MOTION for Preliminary Injunction by Geneva College filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) Modified on 6/6/2013 to correctly title document. (ksa) (Entered: 06/05/2013)
90 NOTICE OF APPEAL as to 84 Order on Motion for Preliminary Injunction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporters: Karen Earley and Juliann Kienzle. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) Modified on 6/18/2013 to add name of additional court reporter. (ksa) (Entered: 06/17/2013)
91 FINDINGS OF FACT AND CONCLUSIONS OF LAW with respect to plaintiff Geneva College's motion for preliminary injunction (ECF No. 87 ). An appropriate order will follow. Signed by Judge Joy Flowers Conti on 6/18/2013. (dmm) (Entered: 06/18/2013)
92 ORDER granting 87 Motion for Preliminary Injunction, as set forth in the accompanying order. Signed by Judge Joy Flowers Conti on 6/18/2013. (dmm) (Entered: 06/18/2013)
94 NOTICE OF APPEAL as to 92 Order on Motion for Preliminary Injunction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporters: Karen Earley and Juliann Kienzle. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) Modified on 8/19/2013 to edit court reporters. (ksa) (Entered: 08/17/2013)
96 MOTION for an Indicative Ruling Under Federal Rule of Civil Procedure 62.1 re 84 Order on Motion for Preliminary Injunction, 92 Order on Motion for Preliminary Injunction if Remanded by the United States Court of Appeals for the Third Circuit by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) Modified on 10/4/2013 to correctly title motion. (ksa) (Entered: 09/12/2013)
97 BRIEF in Support re 96 Motion to Vacate, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 09/12/2013)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 18 of 26

10/02/2013
10/02/2013 10/02/2013 10/02/2013 10/03/2013
10/03/2013 10/03/2013 10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/22/2013

99 MOTION to Stay All Deadlines In Light of Lapse of Appropriations by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 10/02/2013)
100 RESPONSE IN OPPOSITION to 99 Motion to Stay, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 10/02/2013)
101 MOTION for Leave to File Second Amended Complaint by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 10/02/2013)
MOTION for Injunction if Stay is Granted by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Filed with document 100 ) (ksa) (Entered: 10/03/2013)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 100 Response in Opposition. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Baylor advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Motion for Injunction if Stay is Granted. This message is for informational purposes only. (ksa) (Entered: 10/03/2013)
102 NOTICE of Orders by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. re 99 Motion to Stay. (Attachments: # 1 Exhibit 1 PFL order re stay, # 2 Exhibit 2 Legatus order re stay, # 3 Exhibit 3 Archdiocese order re stay) (Bowman, Matthew) Modified on 10/4/2013 to edit docket text. (ksa) (Entered: 10/03/2013)
103 BRIEF in Opposition re 96 Motion to Vacate, if remanded −− i.e. motion for indicative order filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC.. (Attachments: # 1 Affidavit Exh 1 WLH Affidavit) (Bowman, Matthew) (Entered: 10/03/2013)
98 Second AMENDED COMPLAINT against All Defendants, filed by CARRIE E. KOLESAR, WAYNE HEPLER, GENEVA COLLEGE, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Baylor, Gregory) Modified on 10/2/2013 to edit docket text. (ksa) (Entered: 10/01/2013)
ORDER denying as moot 99 Motion to Stay. Signed by Chief Judge Joy Flowers Conti on 10/18/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (ten) (Entered: 10/18/2013)
ORDER granting 101 Motion for Leave to File amended complaint. The amended complaint previously filed at 98 shall be deemed filed on this date. Signed by Chief Judge Joy Flowers Conti on 10/18/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (ten) (Entered: 10/18/2013)
104 ORDER denying 96 Motion for an Indicative Ruling pursuant to Federal Rule of Civil Procedure 62.1. Signed by Chief Judge Joy Flowers Conti on 10/18/2013. (ten) (Entered: 10/18/2013)
ORDER denying as moot Motion to Stay, filed with 100 . Signed by Chief Judge Joy Flowers Conti on 10/18/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (ten) (Entered: 10/18/2013)
Set/Reset Hearings: Status Conference set for 11/12/2013 03:30 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc )

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 19 of 26

10/28/2013 10/28/2013 11/05/2013 11/12/2013 11/12/2013 11/12/2013
12/03/2013 12/03/2013
12/03/2013
12/03/2013 12/03/2013

(Entered: 10/22/2013)
Set/Reset Hearings: Status Conference set for 11/12/2013 is reset for 11/13/2013 at 10:00 AM in Courtroom 5A before Chief Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) Modified on 10/28/2013. Corrected time of conference. (smc ) (Entered: 10/28/2013)
Remark: The correct time for the Status Conference set for 11/13/2013 is 10:00 AM. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) (Entered: 10/28/2013)
Set/Reset Hearings: Status Conference set for 11/13/2013 is reset for 11/12/2013 at 04:30 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) (Entered: 11/05/2013)
105 Second MOTION for Preliminary Injunction by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 11/12/2013)
106 BRIEF in Support re 105 Motion for Preliminary Injunction filed by GENEVA COLLEGE. (Baylor, Gregory) (Entered: 11/12/2013)
Minute Entry for proceedings held before Chief Judge Joy Flowers Conti: Scheduling Conference held on 11/12/2013. Response to 105 GENEVA COLLEGE'S Second Motion for Preliminary Injunction due December 3, 2013. Reply in support due December 6, 2013. Parties advised of requirements for filing Cross−Motions for Summary Judgment, as set forth on the record. Any such motions will be disposed of separately from the Motion for Preliminary Injunction. (Court Reporter: Virgina Pease). Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (ten) (Entered: 11/12/2013)
107 BRIEF in Opposition re 105 Motion for Preliminary Injunction filed by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 12/03/2013)
108 MOTION to Dismiss or, in the Alternative, for Summary Judgment by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Defendants' Statement of Material Facts, # 2 Proposed Order) (Humphreys, Bradley) Modified on 12/4/2013 ERROR: MULTIPLE RELIEF DOCUMENT FILED AS ONE RELIEF; RE−FILED BY COURT. (ksa) (Entered: 12/03/2013)
109 BRIEF in Support re 108 Motion to Dismiss, or, in the Alternative, for Summary Judgment filed by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Humphreys, Bradley) (Entered: 12/03/2013)
MOTION for Summary Judgment by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Filed with document 108 ) (ksa) (Entered: 12/04/2013)
110 CONCISE STATEMENT OF MATERIAL FACTS re Motion for Summary Judgment, by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (ksa) (Entered: 12/04/2013)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 20 of 26

12/04/2013
12/06/2013 12/11/2013 12/13/2013
12/20/2013 12/23/2013 12/23/2013 01/03/2014 01/03/2014 01/06/2014 02/11/2014
04/02/2014

CLERK'S OFFICE QUALITY CONTROL MESSAGE re 108 Motion to Dismiss. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney Humphreys advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added/docketed Motion for Summary Judgment. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE re 108 Motion to Dismiss. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Humphreys advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Concise Statement of Material Facts. This message is for informational purposes only. (ksa) (Entered: 12/04/2013)
111 REPLY Brief in support of 105 Motion for Preliminary Injunction, 107 Brief in Opposition to Motion, filed by GENEVA COLLEGE. (Baylor, Gregory) Modified on 12/9/2013 to edit docket text. (ksa) (Entered: 12/06/2013)
112 Consent MOTION for Extension of Time to File Response/Reply as to 108 MOTION to Dismiss or, in the Alternative, for Summary Judgment by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 12/11/2013)
ORDER granting 112 Motion for Extension of Time to File its opposition to Defendants' re 108 MOTION to Dismiss or, in the alternative, for Summary Judgment. The Opposition must filed no later than 1/3/2014. Signed by Chief Judge Joy Flowers Conti on 12/13/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 12/13/2013)
113 NOTICE of Supplemental Authority by GENEVA COLLEGE (Attachments: # 1 Roman Catholic Archdiocese of NY v. Sebelius Opinion) (Baylor, Gregory) (Entered: 12/20/2013)
114 FINDINGS OF FACT AND CONCLUSIONS OF LAW re: 105 Second MOTION for Preliminary Injunction filed by GENEVA COLLEGE. Signed by Chief Judge Joy Flowers Conti on 12/23/2013. (ten) Modified on 12/26/2013 to correctly title document. (ksa) (Entered: 12/23/2013)
115 ORDER granting 105 Motion for Preliminary Injunction. Signed by Chief Judge Joy Flowers Conti on 12/23/2013. (ten) (Entered: 12/23/2013)
116 RESPONSE IN OPPOSITION to 108 Motion to Dismiss and Motion for Summary Judgment filed by GENEVA COLLEGE. (Baylor, Gregory) Modified on 1/6/2014 document linkage corrected. Document also linked to Motion for Summary Judgment filed with document 108 . (ksa) (Entered: 01/03/2014)
117 RESPONSE IN OPPOSITION to 110 Concise Statement of Material Facts, filed by GENEVA COLLEGE. (Baylor, Gregory) (Entered: 01/03/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 116 Response in Opposition. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (ksa) (Entered: 01/06/2014)
118 NOTICE OF APPEAL as to 115 Order on Motion for Preliminary Injunction by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporters: Karen Earley, Juliann Kienzle and Virginia Pease. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) Modified on 2/12/2014 to add names of court reporters. (ksa) (Entered: 02/11/2014)
120 ORDER of USCA as to 118 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW,

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 21 of 26

05/27/2014
08/28/2014
09/04/2014 09/08/2014 09/19/2014 10/07/2014 10/10/2014 10/10/2014
10/10/2014

TIMOTHY GEITHNER, 94 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER granting Motion by appellants to consolidate for the purposes of filing a single opening brief and a single reply brief. (ksa) Modified docket text on 9/9/2014. (tt) (Entered: 04/02/2014)
ORDER denying, without prejudice, 108 Motion to Dismiss or for Summary Judgment. The court will schedule a time for the re−submission of any such motion(s) following issuance of the mandates in the appeals pending at the Court of Appeals for the Third Circuit: Appeal No. 13−2814, which appeal is being held in abeyance pending the Supreme Court's decision in Conestoga Wood Specialties (S.Ct. No. 13−356); and Appeal No. 13−3536, which has been consolidated with Appeal Nos. 14−1374, 14−1376 and 14−1377, for which a consolidated appellate briefing schedule was set on May 1, 2014. Signed by Chief Judge Joy Flowers Conti on 5/27/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (ten) (Entered: 05/27/2014)
123 ORDER of USCA as to 90 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW, TIMOTHY GEITHNER that the foregoing motion to lift the stay is Denied at this time. The government shall advise the Court of its position not later than 9/5/2014. (ksa) (Entered: 09/16/2014)
121 ORDER of USCA as to 90 Notice of Appeal, filed by UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, dismissing case pursuant to Fed. R. App. P. 42(b). Modified docket text on 9/9/2014. (tt) (Entered: 09/04/2014)
122 MOTION for Status Conference by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC.. (Bowman, Matthew) (Entered: 09/08/2014)
Set/Reset Hearings: Status Conference set for 10/10/2014 at 01:00 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc ) (Entered: 09/19/2014)
124 STATUS REPORT Joint by Defendants and by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Bowman, Matthew) (Entered: 10/07/2014)
125 PERMANENT INJUNCTION. Signed by Chief Judge Joy Flowers Conti on 10/10/2014. (ten) (Entered: 10/10/2014)
126 JUDGMENT in favor of Wayne L. Hepler, individually, and in his capacity as sole proprietor of WLH Enterprises, Carrie E. Kolesar, and The Seneca Hardwood Lumber Company, Inc. and against Sylvia Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services, Thomas Perez, in his official capacity as Secretary of the United States Department of Labor, Jacob Lew, in his official capacity as Secretary of the United States Department of the Treasury, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of the Treasury. Signed by Chief Judge Joy Flowers Conti on 10/10/2014. (ten) (Entered: 10/10/2014)
Minute Entry for proceedings held before Chief Judge Joy Flowers Conti: Status Conference held on 10/10/2014. Court heard argument and indicated that a permanent injunction and judgment will be entered in favor of Wayne Hepler, Carrie Kolesar, and the Seneca Hardwood Lumber Company, Inc. (Court Reporter: Deborah Rowe). Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (ten) (Entered: 10/10/2014)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 22 of 26

11/20/2014 11/25/2014 01/08/2015 02/11/2015
03/03/2015 03/05/2015 03/06/2015 04/13/2015
04/15/2015

127 Joint MOTION to Extend Time to Extend Attorneys' Fees Petition Deadline by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 11/20/2014)
128 ORDER granting 127 Motion to Extend Attorneys' Fees Petition Deadline. Any petition by the Hepler Plaintiffs for attorneys fees or costs shall be filed on or before 1/8/2015, and that any response or opposition to such petition shall be filed on or before 2/13/2015. Signed by Chief Judge Joy Flowers Conti on 11/25/2014. (smc ) (Entered: 11/25/2014)
129 NOTICE of Settlement of Hepler Fees and Costs Petition by WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Bowman, Matthew) Modified on 1/9/2015. (jsp) (Entered: 01/08/2015)
130 JUDGMENT OF USCA as to 118 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW, TIMOTHY GEITHNER, 94 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER Reversing judgments/orders of the district court. Mandate will follow. (pdb3, ) (Entered: 02/11/2015)
131 NOTICE of Appearance by Adam Grogg on behalf of JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Grogg, Adam) (Entered: 03/03/2015)
132 MOTION to Withdraw as Attorney by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 03/05/2015)
ORDER granting 132 Defendants' Motion to Withdraw Bradley P. Humphreys as Attorney of record. Attorney Bradley P. Humphreys terminated. Signed by Chief Judge Joy Flowers Conti on 3/6/2015. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc ) (Entered: 03/06/2015)
135 ORDER of USCA as to 90 Notice of Appeal, filed by UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, 118 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW, TIMOTHY GEITHNER, 94 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER denying petitions for rehearing by the panel and the Court en banc. (ksa) (Entered: 02/11/2016)
133 MANDATE of USCA issued as to 118 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW, TIMOTHY GEITHNER, 94 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY,

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 23 of 26

05/06/2015 06/20/2016
01/16/2017 01/17/2017 08/16/2017 08/16/2017
08/21/2017 03/16/2018 03/19/2018 03/20/2018 03/20/2018

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER. IT IS HEREBY ORDERED and ADJUDGED that the judgments of the District Court entered 6/18/2013, 12/20/2013 and 12/23/2013 be and the same are hereby reversed. (Attachments: # 1 mandate letter, # 2 opinion) (tmm3, ) Modified on 4/16/2015 to add additional docket text. (ksa) (Entered: 04/15/2015)
134 USCA ORDER Motion by Appellee Geneva College to Recall and Stay Mandate is temporarily granted pending action by the Supreme Court in Zubik v. Burwell, No. 14A1065 (S. Ct.). (Entered: 05/06/2015)
136 ORDER of USCA as to 118 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, THOMAS E. PEREZ, JACOB J. LEW, TIMOTHY GEITHNER, 94 Notice of Appeal, filed by HILDA SOLIS, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER recalling the mandate issued on 4/15/2015 in light of the U.S. Supreme Court's decision vacating the judgment of this Court and remanding for further proceedings. (ksa) (Entered: 06/22/2016)
137 MOTION to Withdraw as Attorney by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Bowman, Matthew) (Entered: 01/16/2017)
138 ORDER granting 137 Motion to Withdraw as Counsel. Attorney Matthew S Bowman terminated. Signed by Chief Judge Joy Flowers Conti on 1/17/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc) (Entered: 01/17/2017)
139 NOTICE of Appearance by Michelle Bennett on behalf of JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Bennett, Michelle) (Entered: 08/16/2017)
140 MOTION to Withdraw as Attorney by TIMOTHY GEITHNER, JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Proposed Order) (Grogg, Adam) (Entered: 08/16/2017)
141 ORDER granting 140 Motion to Withdraw as Attorney. Attorney Adam Grogg granted leave to withdraw as counsel for defendants. Signed by Chief Judge Joy Flowers Conti on 8/21/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc) (Entered: 08/21/2017)
142 MOTION to Withdraw as Attorney Steve H. Aden by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 03/16/2018)
143 ORDER granting 142 Motion to Withdraw as Attorney. Attorney Steven H. Aden terminated. Signed by Chief Judge Joy Flowers Conti on 3/19/2018. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc) (Entered: 03/19/2018)
144 MOTION for Permanent Injunction and Declaratory Relief by GENEVA COLLEGE. (Attachments: # 1 Proposed Order, # 2 Proposed Judgment) (Baylor, Gregory) Modified on 3/21/2018 to add additional docket tet and edit docket text. (ksa) (Entered: 03/20/2018)
145 BRIEF in Support re 144 Motion for Permanent Injunction filed by GENEVA COLLEGE. (Baylor, Gregory) (Entered: 03/20/2018)

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 24 of 26

04/10/2018 04/16/2018 05/24/2018 05/31/2018 06/01/2018 06/01/2018
06/01/2018 06/01/2018 06/04/2018
06/20/2018 06/27/2018
06/27/2018 07/05/2018 07/05/2018

146 RESPONSE to Motion re 144 MOTION for Permanent Injunction and Declaratory Relief filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Bennett, Michelle) (Entered: 04/10/2018)
147 ORDER of USCA re 94 Notice of Appeal, 118 Notice of Appeal, dismissing case pursuant to Fed. R. App. P. 42(b). (tmm3) Modified on 4/23/2018. (tt) (Entered: 04/16/2018)
Set/Reset Hearings: Status Conference set for 6/19/2018 04:30 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. (msp) (Entered: 05/24/2018)
148 Consent MOTION to Continue Reschedule Status Conf. and to Appear Telephonically by GENEVA COLLEGE. (Mongillo, David). Added MOTION to appear telephonically 6/1/2018 (jv). (Entered: 05/31/2018)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 148 Motion to Continue. ERROR: Proposed Order was not attached. CORRECTION: Attorney is advised to file a proposed order by using the Proposed Order event and linking it to the document in question. This message is for informational purposes only. (jv) (Entered: 06/01/2018)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 148 Motion to Continue, Motion to appear telephonically. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added Motion to appear telephonically. This message is for informational purposes only. (jv) (Entered: 06/01/2018)
149 Proposed Order re 148 Motion to Continue, Motion to Appear Telephonically, by GENEVA COLLEGE. (Mongillo, David) (Entered: 06/01/2018)
150 Proposed Order re 148 Motion to Continue, Motion to Reschedule Status Conference, by GENEVA COLLEGE. (Mongillo, David) (Entered: 06/01/2018)
151 ORDER granting 148 Motion to Reschedule Status Conference and to Appear Telephonically. Status Conference set for 6/19/2018 is reset for 6/27/2018 at 04:30 PM before Chief Judge Joy Flowers Conti. Parties may participate in the conference by telephone. Parties shall provide chambers with their contact information prior to the conference. Signed by Chief Judge Joy Flowers Conti on 6/4/2018. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (smc) (Entered: 06/04/2018)
Set/Reset Hearings: Telephone Status Conference set for 6/27/2018 at 4:30 PM is reset for 6/27/2018 at 02:00 PM before Chief Judge Joy Flowers Conti. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (smc) (Entered: 06/20/2018)
Minute Entry for proceedings held before Chief Judge Joy Flowers Conti: Telephonic Status Conference held on 6/27/2018, court addressed matter of pending motion for permanent injunctive and declaratory relief. Court will circulate proposed order to parties for their comment. A Telephonic Status Conference is set for 6/5/2018 at 01:30 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. All as more fully stated on the record. (Court Reporter: Barbara Leo) Text−only entry; no PDF document will issue. This text−only entry constitutes a Minute of the Court or Notice on the matter. (msp) (Entered: 06/27/2018)
Telephonic Status Conference set for 6/5/2018 at 1:30 PM reset for 7/5/2018 at 01:30 PM in Courtroom 5A before Chief Judge Joy Flowers Conti. (msp) (Entered: 06/27/2018)
152 MEMORANDUM OPINION re 144 MOTION for Permanent Injunction and Declaratory Relief filed by GENEVA COLLEGE, indicating for the reasons stated therein, the motion will be granted. Signed by Chief Judge Joy Flowers Conti on 7/5/2018. (msp) (Entered: 07/05/2018)
153 ORDER granting 144 MOTION for Permanent Injunction and Declaratory Relief filed by GENEVA COLLEGE. As stated more fully in the attached order, IT IS HEREBY

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07/09/2018 07/09/2018 07/09/2018 07/10/2018
07/12/2018 08/16/2018 08/20/2018

ORDERED that the motion of Geneva College for permanent injunction and declaratory relief is hereby GRANTED. IT IS HEREBY DECLARED that defendants−the United States Departments of Health and Human Services, Treasury, and Labor, along with their respective Secretaries−violated Geneva College's rights under RFRA, 42 U.S.C. § 2000bb−1 et seq., by promulgating and enforcing 42 U.S.C. § 300gg−13 and regulations pursuant to 42 U.S.C. § 300gg−13, including the accommodation procedure, against Geneva College and requiring Geneva College, its health insurance plan or its insurer to provide, pay for, make accessible or otherwise facilitate or cause access to coverage or payments through an insurance company or other third party for contraceptive coverage services to which Geneva College has religious objections (including those Geneva College views as abortion, abortifacients, embryo−harming pharmaceuticals, and related education and counseling). IT IS FURTHER ORDERED that defendants, their respective successors in office, their agents, officers, employees and all others in active concert or participation with them are hereby PERMANENTLY ENJOINED AND RESTRAINED from 1) applying or enforcing the requirements of 42 U.S.C. § 300gg−13(a)(4), and implementing regulations and accommodation process, and 2) pursuing any enforcement actions against, or imposing any penalties upon Geneva College, its insurers and third−party administrators pursuant to 26 U.S.C. § 4980D and 29 U.S.C. § 1132 for noncompliance of Geneva College, its insurers and third−party administrators with the requirement imposed in 42 U.S.C. § 300gg−13(a)(4), implementing regulation or the accommodation process with respect to providing, paying for, making accessible or otherwise facilitating or causing coverage, access or payments for contraceptive coverage services to which Geneva College has religious objections (including those Geneva College views as abortion, abortifacients, embryo−harming pharmaceuticals, and related education and counseling). IT IS FURTHER ORDERED that any request for attorneys fees on behalf of Geneva College shall be submitted within 45 days of the date of this order. FINALLY, IT IS ORDERED that this court shall retain jurisdiction to enforce this order. Signed by Chief Judge Joy Flowers Conti on 7/5/2018. (msp) (Entered: 07/05/2018)
154 Consent MOTION for Voluntary Dismissal of Plaintiffs' Remaining Claims by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Baylor, Gregory) (Entered: 07/09/2018)
155 JUDGMENT in favor of Geneva College and against defendants on Count I of the Second Amended Complaint for violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb. Signed by Chief Judge Joy Flowers Conti on 7/9/2018. (msp) (Entered: 07/09/2018)
156 BRIEF in Support re 154 Motion for Voluntary Dismissal of Plaintiffs' Remaining Claims, filed by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. "Document previously filed electronically" (ksa) (Entered: 07/10/2018)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 154 Motion for Voluntary Dismissal of Plaintiffs' Remaining Claims. ERROR: Document should have been filed as two separate documents. CORRECTION: Attorney Baylor advised in future that documents of that nature are to be filed as separate documents. Clerk of Court docketed Brief in Support of Consent Motion for Voluntary Dismissal. This message is for informational purposes only. (ksa) (Entered: 07/10/2018)
157 ORDER granting 154 Motion for Voluntary Dismissal of Plaintiffs' Remaining Claims. The Plaintiffs' remaining claims are hereby DISMISSED WITHOUT PREJUDICE, pursuant to Rule 41(a)(2), Fed. R. Civ. P. The clerk shall mark this case closed. Signed by Chief Judge Joy Flowers Conti on 7/12/2018. (smc) Modified on 7/13/2018 to correct typo. (ksa) (Entered: 07/12/2018)
158 Unopposed MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by GENEVA COLLEGE, WAYNE HEPLER, CARRIE E. KOLESAR, THE SENECA HARDWOOD LUMBER COMPANY, INC. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 08/16/2018)
159 ORDER granting 158 Motion for Extension of Time to File Petition for Atthorneys' Fees and Costs. Plaintiffs Petition for Attorneys Fees and Costs accordingly must be

Case: 2:12-cv-00207-JFC As of: 03/13/2019 11:53 PM EDT 26 of 26

10/03/2018 10/04/2018 10/11/2018

filed no later than 10/4/2018. Signed by Chief Judge Joy Flowers Conti on 8/20/2018. (smc) Modified on 8/21/2018 to correct typo. (ksa) (Entered: 08/20/2018)
160 Unopposed MOTION to Extend Time to File Petition for Attorneys' Fees and Costs by GENEVA COLLEGE. (Attachments: # 1 Proposed Order) (Baylor, Gregory) (Entered: 10/03/2018)
161 ORDER granting 160 Motion to Extend Time to File Petition for Attorneys Fees and Costs. Plaintiff's Petition for Attorneys' Fees and Costs must be filed no later than 10/11/2018. Signed by Chief Judge Joy Flowers Conti on 10/4/2018. (smc) Modified on 10/5/2018 to edit docket text. (ksa) (Entered: 10/04/2018)
162 NOTICE of Settlement of Attorneys' Fees and Expenses by GENEVA COLLEGE (Baylor, Gregory) (Entered: 10/11/2018)

 
 Case 2:12-cv-00207-JFC Document 147 Filed 04/16/18 Page 1 of 1

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 13-3536 and 14-1374 Geneva College, et al v. Secretary Department of Health, et al
(Originating Court No. 2-12-cv-00207)
O R D E R
In accordance with the agreement of the parties in the above-captioned case, the matter is hereby dismissed pursuant to Fed. R. App. P. 42(b), without cost to either party. A certified copy of this order is issued in lieu of a formal mandate.
For the Court,

s/ Patricia S. Dodszuweit Clerk
Date: April 16, 2018
cc: Megan BarberoEsq. Gregory S. BaylorEsq. Charles E. DavidowEsq. Deborah J. DewartEsq. Adam C. JedEsq. Richard B. KatskeeEsq. Alisa B. KleinEsq. Laura MyronEsq. Patrick NemeroffEsq. Sara J. RoseEsq. Joshua M. SalzmanEsq. Sarah SomersEsq. Mark B. SternEsq.

A True Copy:
Patricia S. Dodszuweit, Clerk Certified Order Issued in Lieu of Mandate

 
  Case 2:12-cv-00207-JFC Document 157 Filed 07/12/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania corporation; )

and CARRIE E. KOLESAR,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR, II, in his official capacity as )

Secretary of the United States Department of )

Health and Human Services; R. ALEXANDER )

ACOSTA, in his official capacity as Secretary )

of the United States Department of Labor;

)

STEVEN T. MNUCHIN, in his official capacity )

as Secretary of the United States Department of )

the Treasury; UNITED STATES

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES; UNITED STATES

)

DEPARTMENT OF LABOR; and UNITED )

STATES DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

)

)

Case No. 2:12-00207-JFC

ORDER ON PLAINTIFFS’ CONSENT MOTION FOR VOLUNTARY DISMISSAL OF PLAINTIFFS’ REMAINING CLAIMS Before the Court is Plaintiffs’ Motion for Voluntary Dismissal of Plaintiffs’ Remaining Claims. Having considered the procedural history of this action set forth in Plaintiffs’ motion and given the uncontested nature of the motion, Plaintiffs’ motion is GRANTED. The Plaintiffs’ remaining claims are hereby DISMISSED WITHOUT PREJUDICE, pursuant to Rule 41(a)(2), Fed. R. Civ. P.
7KH&OHUNVKDOOPDUNWKLVFDVHFORVHG

1

 Case 2:12-cv-00207-JFC Document 157 Filed 07/12/18 Page 2 of 2 SO ORDERED this __W_Kday of __-_X_O\________, 2018. V-R\)ORZHUV&RQWL Hon. Joy Flowers Conti United States District Judge
2

 
 Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GENEVA COLLEGE; WAYNE L. HEPLER; )

THE SENECA HARDWOOD LUMBER

)

COMPANY, INC., a Pennsylvania Corporation; )

WLH ENTERPRISES, a Pennsylvania Sole

)

Proprietorship of Wayne L. Hepler; and

)

CARRIE E. KOLESAR,

)

)

Plaintiffs,

)

)

)

)

v.

) Case No. 2:12-cv-00207

)

ALEX M. AZAR, II, in his official capacity as )

Secretary of the United States Department of )

Health and Human Services, R. ALEXANDER )

ACOSTA, in his official capacity as Secretary )

of the United States Department of Labor,

)

STEVEN T. MNUCHIN, in his official capacity )

as Secretary of the United States Department of )

the Treasury, UNITED STATES

)

DEPARTMENT OF HEALTH AND HUMAN )

SERVICES, UNITED STATES

)

DEPARTMENT OF LABOR, and UNITED

)

STATES DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

MEMORANDUM OPINION Plaintiff Geneva College (“Geneva”) is a non-profit institution of higher learning with a religious mission central to its institutional identity and activities. Pending before the court is Geneva’s motion for permanent injunction and declaratory relief with respect to count one1 of the second amended complaint alleging that, with respect to Geneva, enforcement of 42 U.S.C. 300gg-13(a)(4) (referred to as the “Mandate”), which is part of the Patient Protection and
1 Count one is referred to in the second amended complaint as “First Claim for Relief.” (ECF No. 98, ¶¶ 219-229.
1

Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 2 of 6
Affordable Care Act of 2010 (“ACA”) and requires that coverage for certain preventative
services involving abortifacient products, services and counseling be provided as part of the
health insurance Geneva provides to its employees and students, constitutes a violation of the
Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb. (ECF No. 144).
Additionally, Geneva contends that the self-certification accommodation process established as
part of the Final Rules issued by the pertinent federal agencies, 45 C.F.R. § 147.131(a),2
requiring Geneva to submit a form to the government or insurer stating that it objects on
religious grounds to providing coverage for certain contraceptive or abortafacients and thereby
triggering and facilitating provision of that coverage by third-parties, creates a substantial burden
on its exercise of religion because in so certifying that which is objected to on religious grounds
is then provided by third parties. Geneva filed a brief in support of its motion (ECF No. 145),
and defendants3 filed a response to the motion. (ECF No. 146).
2 This regulation and others were amended by interim final rules issued on October 13, 2017, 82 Fed. Reg. 47792, 47838, which have been enjoined by the United States District Court for the Eastern District of Pennsylvania in Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017), appeal filed at Third Cir. Appeal Nos. 17-3752 (Dec. 21, 2017) and 18-1253 (Feb. 15, 2018), and California v. Department of Health and Human Services, 281 F. Supp. 3d 806 (N.D. Cal. 2017), appeal filed at California v. Azar, Ninth Cir. Appeal No. 18-15255 (Feb. 16, 2018). As indicated by California v. Department of Health and Human Services, 281 F. Supp. 3d at 832, the injunction against application of the interim final rules does not conflict with “the plaintiffspecific injunctions issued by the courts in the Zubik cases or any other case.” California v. Health and Human Services, 281 F. Supp. 3d at 832. Pennsylvania v. Trump, 281 F. Supp. 3d at 585 (injunction preserves status quo prior to enforcement of interim final rules and “those with injunctions preventing enforcement of the Contraceptive Mandate maintain their injunctions.”).
3Federal Rule of Civil Procedure 25(d) provides:
(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but the
2

Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 3 of 6
This court previously issued opinions, orders and findings of fact and conclusions of law (ECF Nos. 86, 91, 92, 114, 115), Geneva College v. Sebelius, 941 F. Supp. 2d 672, 680-86 (W.D. Pa. 2013), determining that Geneva had shown a likelihood of success on the merits with respect to Geneva’s contention that enforcement of the mandate against it violated RFRA.
On June 18, 2013, with respect to Geneva’s student health insurance plan, this court ordered preliminary injunctive relief providing that:
[d]efendants, their agents, officers, and employees, are hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.C. § 300gg-13(a)(4) by requiring that Geneva’s student health insurance plan, its plan broker, or its plan insurer provide abortifacients contrary to Geneva’s religious objections. (ECF No. 92 at 1-2). On December 23, 2013, this court ordered the same preliminary injunctive relief with respect to Geneva’s employee health insurance plan. (ECF No. 115 at 1-2). Defendants appealed the orders granting preliminary injunctive relief, and the Court of Appeals for the Third Circuit reversed on April 15, 2015 in Geneva College v. Secretary of Health and Human Services, 778 F.3d 422 (3d Cir. 2015). Geneva appealed the Court of Appeals for the Third Circuit’s decision and order, and the United States Supreme Court on May 16, 2016, after granting certiorari, and consolidating several appeals from various circuits with Geneva’s appeal, issued its decision in Zubik v. Burwell, 136 S. Ct. 1557 (2016). That decision vacated the decision and mandate issued by the Court of Appeals for the Third Circuit, remanded the matter, and instructed the appellate court to afford the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage,
absence of such an order does not affect the substitution. FED. R. CIV. P. 25(d). Accordingly, the present secretaries of the departments sued have been substituted for their predecessors by operation of Rule 25(d).
3

Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 4 of 6
including contraceptive coverage.” 136 S. Ct. at 1560-61. On June 20, 2016, on remand, the Court of Appeals for the Third Circuit recalled its prior mandate in light of the Supreme Court’s opinion. (ECF No. 136). On April 16, 2018, by agreement of the parties and pursuant to Federal Rule of Appellate Procedure 42(b), the Court of Appeals for the Third Circuit dismissed the appeal with respect to this court’s grant of preliminary injunctive relief to Geneva College. (ECF No. 147).
In the midst of appellate process with respect to this court’s order of preliminary injunctive relief, there was a change in presidential administrations. In this context, on March 20, 2018, Geneva filed its present motion. (ECF No. 144). In response to Geneva’s motion for permanent injunction and declaratory relief, defendants specifically state that
[t]he Government is not raising a substantive defense of the Mandate or the accommodation process with respect to Plaintiffs’ Religious Freedom Restoration Act (“RFRA”) challenge. The Government has concluded that requiring employers with sincerely held religious objections to comply with the Mandate or the accommodation process would violate RFRA. (ECF No. 146 at 1). In determining whether to grant a permanent injunction, the Court of Appeals for the Third Circuit in Shields v. Zuccarini, 254 F.3d 476 (3d Cir. 2001), instructs: the district court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest. 254 F.3d at 482. Given the present posture of this matter, the government’s position conceding that enforcement of the ACA’s Mandate and accommodation process against Geneva would violate RFRA and indicating that it does not intend to offer a substantive defense with respect to that
4

Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 5 of 6
matter, and the court’s prior orders, opinions and findings of fact and conclusions of law, the court concludes that Geneva showed: 1) actual success on the merits with respect to its claim under RFRA; 2) it will be irreparable injured by the denial of injunctive relief; 3) no greater harm to defendants will result by grant of the permanent injunction; and 4) the injunction is in the public interest. Accordingly, the motion for permanent injunctive relief and for declaratory relief will be granted. Accord Reaching Souls International, Inc. v. Azar, Case No. Civ-13-1092, 2018 WL 1352186 (W.D. Okl. March 15, 2018); Wheaton College v. Azar, Case No. 13-cv-8910 (W.D. Okl. Feb. 22, 2018); Catholic Benefits Association LCA v. Hargan, Case Nos. CIV-14240-R, CIV-14-685-R (W.D. Okl. Mar. 7, 2018).
The court observes, however, that the proposed injunction and declaratory relief requested by Geneva in its present motion is broader than the relief requested in the second amended complaint, (ECF No. 98), and does not refer to the requirements of the mandate and accommodation that Geneva showed violated Geneva’s rights under RFRA. A more narrowly tailored injunction and declaration is appropriate based upon Geneva’s claim in the second amended complaint for violation of RFRA, (ECF No. 98, ¶¶ 219-229), the filings and the court’s prior findings.
Specifically, the court finds that Geneva is entitled to permanent injunctive relief against application of the mandate, 42 U.S.C. § 300gg-13, regulations and accommodation process by defendants to Geneva, or to the health insurance plan of or insurer for Geneva, with respect to Geneva providing, paying for, making accessible, or otherwise facilitating or causing access to coverage or payments through an insurance company or any other third party for contraceptive coverage services to which Geneva has religious objections (including those Geneva College
5

Case 2:12-cv-00207-JFC Document 152 Filed 07/05/18 Page 6 of 6

views as abortion, abortifacients, embryo-harming pharmaceuticals, or related education and counseling).
Additionally, the court finds that Geneva is entitled to declaratory relief that defendants’ enforcement of the mandate, 42 U.S.C. § 300gg-13, and implementing regulations against Geneva and requiring its compliance with the accommodation procedure with respect to providing, paying for, making accessible, or otherwise facilitating or causing access to coverage or payments through an insurance company or other third party for contraceptive coverage services to which Geneva College has religious objections (including those Geneva College views as abortion, abortifacients, embryo-harming pharmaceuticals, or related education and counseling) violates Geneva’s rights under RFRA, 42 U.S.C. § 2000bb-1 et seq.
Accordingly, the court will enter an appropriate order, including the permanent injunction and declaratory relief note above.

Dated: July 5, 2018

BY THE COURT:
/s/Joy Flowers Conti Joy Flowers Conti United States District Judge

6

 
 (ORDER LIST: 577 U. S.)

FRIDAY, NOVEMBER 6, 2015

14-1418 14-1453 14-1505 15-35 15-105 15-119 15-191
15-109
15-145 15-5238

CERTIORARI GRANTED ZUBIK, DAVID A. ET AL. V. BURWELL, SEC. OF H&HS, ET AL. PRIESTS FOR LIFE, ET AL. V. DEPT. OF H&HS, ET AL. ROMAN CATHOLIC ARCHBISHOP V. BURWELL, SEC. OF H&HS, ET AL. E. TX BAPTIST UNIV., ET AL. V. BURWELL, SEC. OF H&HS LITTLE SISTERS, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. SOUTHERN NAZARENE UNIV., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. GENEVA COLLEGE V. BURWELL, SEC. OF H&HS, ET AL.
The petition for a writ of certiorari in No. 14-1418 is granted limited to Question 1 presented by the petition. The motion of Association of American Physicians & Surgeons, et al. for leave to file a brief as amici curiae and the petition for a writ of certiorari in No. 14-1453 are granted. The petitions for writs of certiorari in Nos. 14-1505, 15-35, 15-119, and 15-191 are granted. The petition for a writ of certiorari in No. 15-105 is granted limited to Questions 1 and 2 presented by the petition. The cases are consolidated. SIMMONS, JERMAINE, ET AL. V. HIMMELREICH, WALTER J.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. HUSKY ELECTRONICS, INC. V. RITZ, DANIEL L.
The petition for a writ of certiorari is granted. NICHOLS, LESTER V. UNITED STATES
The motion of petitioner for leave to proceed in forma

1

pauperis is granted. The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
2

 
 Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

May 16, 2016

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Third Circuit 601 Market Street, Room 21400 Philadelphia, PA 19106

Re: David A. Zubik, et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al. No. 14-1418 (Your No. 14-1376, 14-1377)

Dear Clerk:
The opinion of this Court was announced today in the above stated case. A copy of the opinion is available on the Court’s website at www.supremecourt.gov.
The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing.

Sincerely,
Scott S. Harris, Clerk by Cynthia Rapp Deputy Clerk (202) 479-3031

(Slip Opinion)

Cite as: 578 U. S. ____ (2016)

1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL., 
 PETITIONERS 


2

ZUBIK v. BURWELL

Per Curiam

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[May 16, 2016]

Cite as: 578 U. S. ____ (2016)

3

Per Curiam
PER CURIAM.
Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14–15.
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clari-

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ZUBIK v. BURWELL

Per Curiam
fication and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.
The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them. This Court has taken similar action in other cases in the past. See, e.g., Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam) (vacating and remanding for the Second Circuit to “address, in the first instance, whether to revisit its ruling on sovereign immunity in light of [a] new factual development, and—if necessary— proceed to address other questions in the case consistent with its sovereign immunity ruling”); Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam) (vacating and remanding for the D. C. Circuit to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments”); Villarreal v. United States, 572 U. S. ___ (2014) (vacating and remanding to the Fifth Circuit “for further consideration in light of the position asserted by the Solicitor General in his brief for the United States”).
The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened,

Cite as: 578 U. S. ____ (2016)

5

Per Curiam
whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.
Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ___ (slip op., at 2). Nothing in this opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.

Cite as: 578 U. S. ____ (2016)

1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL.,

PETITIONERS

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

2

ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE FIFTH CIRCUIT


LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT

[May 16, 2016]


JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring.
I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petition-

Cite as: 578 U. S. ____ (2016)

3

SOTOMAYOR, J., concurring
ers’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest. Ante, at 4–5. Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”). Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”). On remand in these cases, the Courts of Appeals should not make the same mistake.
I also join the Court’s opinion because it allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage “ ‘to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’ ” Ante, at 3. The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a “separate policy, with a separate enrollment process.” Supp. Brief for Petitioners 1; Supp. Reply Brief for Petitioners 5. Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation. See Supp. Reply Brief

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ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
for Respondents 3–4. Requiring standalone contraceptiveonly coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would “impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.” Id., at 6.
Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. Ante, at 4. As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.