Case 3:12-cv-01589-B Document 1 Filed 05/21/12 Page 1 of 47 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

THE ROMAN CATHOLIC DIOCESE OF )

DALLAS,

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Plaintiff,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; HILDA SOLIS, in her official )

capacity as Secretary of the U.S.

)

Department of Labor, TIMOTHY

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GEITHNER, in his official capacity as

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Secretary of the U.S. Department of

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Treasury; U.S. DEPARTMENT OF

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HEALTH AND HUMAN SERVICES;

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U.S. DEPARTMENT OF LABOR; and )

U.S. DEPARTMENT OF TREASURY, )

)

Defendants.

)

)

)

Civil Action No. ____________ DEMAND FOR JURY TRIAL

PLAINTIFF’S ORIGINAL COMPLAINT 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to

practice one’s religion without government interference. It is not about whether people have a

right to abortion-inducing drugs, sterilization, and contraception. Those services are freely

available in the United States, and nothing prevents the Government itself from making them

more widely available. Here, however, the U.S. Government seeks to require The Roman Catholic Diocese of Dallas1 (“Plaintiff,” “Diocese of Dallas,” or the “Diocese”) to violate its

sincerely held religious beliefs by providing, paying for, and/or facilitating access to those

1 The Roman Catholic Diocese of Dallas is a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas. The Diocese is a Roman Catholic religious entity under the pastoral care of Bishop Kevin J. Farrell, D.D.

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services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiff therefore seeks relief in this Court to protect this most fundamental of American rights.
2. Since the founding of this country, religious organizations such as Plaintiff have been free to fulfill their religious beliefs through service to the underprivileged and underserved. As a result, the Diocese currently serves thousands of people whom the Government does not or cannot serve. Without Plaintiff’s assistance, many of the recipients of Plaintiff’s services would be without shelter, food, prenatal health, medical care, and vital educational opportunities. Plaintiff is compelled by its religious beliefs to provide these services. Plaintiff is also compelled by its religious beliefs to avoid the provision of abortion-inducing drugs and the facilitation of sterilization services and contraception. But the U.S. Government has now promulgated regulations that attempt to force Plaintiff to violate its religious beliefs by either scaling back its social service or violating its beliefs on the sanctity of life. This government interference with Plaintiff’s religious beliefs violates the U.S. Constitution and federal law.
3. The U.S. Constitution and federal statutes protect religious organizations from governmental interference with their religious views—particularly minority religious views. The Constitution and federal law thus stand as a bulwark against oppressive government actions even if supported by a majority of citizens. This “wall of separation between church and state” is critical to the preservation of religious freedom. As the Supreme Court has recognized, “[t]he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority.”
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4. The Government is now attacking Plaintiff’s religious liberties. Current Federal law described below (the “U.S. Government Mandate”) requires religious organizations such as Plaintiff to violate their centuries’ old teachings on the sanctity of human life by providing coverage for abortion-inducing drugs, sterilization services, contraception, and related counseling services. The Government has not shown any compelling need to force religious organizations to provide coverage for these services, and in fact, has chosen to make exemptions to the law both for religious and non-religious reasons. If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government’s power to interfere with the free practice of one’s religious beliefs.
5. Such trampling of religious freedom violates Plaintiff’s clearly established federal constitutional and statutory rights. The First Amendment also prohibits the Government from becoming excessively entangled in religious affairs and from interfering with a religious institution’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. The U.S. Government Mandate tramples all of these rights.
BACKGROUND 6. Plaintiff is a Catholic religious entity that provides a wide range of spiritual, educational, and social services to the greater Dallas community and surrounding counties, serving Catholics and non-Catholics alike. The Diocese not only provides pastoral care and spiritual guidance for over 1 million Catholics, but also educates close to 12,000 students through the Diocesan school system and meets many other needs through the numerous charitable programs undertaken by the parishes within the Diocese. For example, Bishop Dunne Catholic School—a school within the Diocese—is devoted to teaching a religiously and
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ethnically diverse student body with a significant number of children from families with limited financial resources.
7. Plaintiff serves many people, regardless of faith or financial condition. Cardinal James Hickey, retired Archbishop of Washington, once commented on the role of Catholic educators: “We do not educate our students because they are Catholic; we educate them because we are Catholic.” Bishop Farrell echoed this sentiment regarding the emphasis Catholic educators must place on serving the needs of those less fortunate: “In the end, one’s life is not judged by what one acquires but what one does with it. Catholic education calls on the student to model his or her life after the One who ‘came to serve, not be served.’” Most Reverend Kevin J. Farrell, D.D., Catholic Schools Week (Jan. 19, 2012), available at http://bishopkevinfarrell.org/blog/2012/01/catholic-schools-week-2/ (last visited Apr. 17, 2012).
8. Plaintiff’s work is guided by and consistent with Roman Catholic belief, including the requirement that it serve those in need, regardless of their religion or financial condition. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict has more recently put it, “Love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to her [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006). Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
9. Artificial interference with the creation of life, including through abortion-inducing drugs, sterilization, and contraceptives, is contrary to Catholic values and beliefs.
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10. Defendants have promulgated various rules (collectively, the “U.S. Government Mandate”), that force Plaintiff to violate its sincerely held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to provide health plans to employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption to this Mandate for certain “religious employers” who can convince the Government that they satisfy four criteria:
● “The inculcation of religious values is the purpose of the organization”; ● “The organization primarily employs persons who share the religious tenets of the
organization”; ● “The organization primarily serves persons who share the religious tenets of the
organization”; and ● “The organization is a nonprofit organization as described in section 6033(a)(1)
and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” Thus, in order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that the employers are sufficiently “religious.” 11. The Diocese does not know whether the Government will conclude that it satisfies the definition of a “religious employer” under the impermissibly vague terms of the exemption. This narrow definition of “religious employer” could be read to exclude the Diocese even though it is a “religious” organization under any reasonable definition of the term. And in order for Plaintiff to learn whether or not it qualifies, it must submit to an intrusive and potentially costly governmental investigation into whether, in the Government’s view, the Plaintiff’s “purpose” is the “inculcation of religious values”; whether it “primarily” employs “persons who share [its] religious tenets,” even though it hires many Catholics and non-Catholics; and whether it
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“primarily” serves such people, even though its schools, parishes, and social services include individuals of all faiths.
12. Consequently, even to attempt to qualify for the exemption directly, Plaintiff may be required to stop providing educational opportunities to non-Catholics, to stop serving nonCatholics, to fire non-Catholic employees, and to cease hiring non-Catholic persons—actions that would betray its religious commitment to serving all in need without regard to religious belief. Plaintiff’s only other options are to violate its own beliefs and teachings or to disobey the U.S. Government Mandate.
13. The U.S. Government Mandate, including the exemption for certain “religious employers,” is irreconcilable with the First Amendment, the Religious Freedom Restoration Act, and other laws. The Government has not shown any compelling need to force Plaintiff to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiff to submit to an intrusive governmental examination of its religious missions and related services. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing any interest in increasing access to these drugs and services, since these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly-enacted law. The Government, therefore, cannot justify its decision to force Plaintiff to provide, pay for, and/or facilitate access to these drugs and services in violation of its sincerely held religious beliefs.
14. Accordingly, Plaintiff seeks a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiff, an injunction barring its enforcement, and an order vacating the Mandate.
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I. PRELIMINARY MATTERS 15. The Roman Catholic Diocese of Dallas is a nonprofit religious organization
organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas. The Diocese includes a community of Roman Catholic parishes, schools, and organizations in and around Dallas, Texas, under the pastoral care of Most Reverend Bishop Kevin J. Farrell, D.D. The principal office of the Diocese is located in Dallas, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
16. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity.
17. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
18. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
19. Defendant U.S. Department of Health and Human Services (“HHS”) is an executive agency of the United States within the meaning of the RFRA and the Administrative Procedure Act (“APA”).
20. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of the RFRA and the APA.
21. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of the RFRA and the APA.
22. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
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23. An actual, justiciable controversy currently exists between Plaintiff and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiff is uncertain as to its rights and duties in planning, negotiating, and/or implementing its group health insurance plan, its hiring and retention programs, and its social, educational, and charitable programs and ministries, as described below.
24. Plaintiff has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
25. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
26. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). II. FACTUAL BACKGROUND
27. The Diocese of Dallas encompasses 69 parishes and 5 quasi-parishes and serves a region comprised of 9 counties in North Texas, with a population of approximately 3.7 million, including over 1 million Roman Catholics. The counties within the Diocese are Collin, Dallas, Ellis, Fannin, Grayson, Hunt, Kaufman, Navarro, and Rockwall Counties. Originally covering 108,000 square miles of Texas—stretching from Texarkana to El Paso, a distance of 812 miles— the Diocese of Dallas was created by Pope Leo XIII in 1890. In addition to its current 74 parishes and quasi-parishes, the Diocese also contains 38 Catholic elementary and secondary schools. The charitable work of the Diocese is also performed through a number of affiliated corporations.
28. The Diocese has been led since 2007 by Bishop Kevin J. Farrell, D.D., formerly the Auxiliary Bishop of the Archdiocese of Washington, D.C. He is active in the United States through the U.S. Conference of Catholic Bishops (“USCCB”) and provides leadership for
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various initiatives at the national level, including as a consultant to the USCCB Committee on Migration.
29. Bishop Farrell is assisted in his ministry by two auxiliary bishops and by a staff of clergymen, religious brothers and sisters, and lay people. The Diocese has over 100 employees at its Pastoral center, nearly 90 of whom are benefits-eligible.
30. The Diocese itself carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its parishes. Through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the Dallas area. It also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at University of Dallas and Southern Methodist University, as well as hospital ministries at 10 hospitals and medical centers within its borders.
31. The Catholic educational mission is evident in the Diocesan schools. The first Catholic school opened in Dallas nearly 140 years ago, before the city had a public school system. The Diocese’s schools educate diverse student bodies to form Catholic, person-centered learning communities; provide academic excellence through educational programs infused with Catholic doctrine and social teachings; serve and support society in the parish, civic, and global communities; and graduate students who are critical thinkers and productive moral citizens. The schools of the Diocese follow curriculum standards based upon national education standards, core curriculum standards, and the social teachings of the Catholic Church.
32. There are 38 Catholic elementary and secondary schools, which educate over 15,000 students, located within the Diocese. The Diocese and/or its parishes operate 31 of these
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schools—3 secondary schools and 28 elementary schools—serving over 12,000 students, and employing over 900 teachers in addition to other school staff. All of these 28 elementary schools are “parochial schools,” owned and operated by one of the parishes within the Diocese. Three of the secondary schools operated by the Diocese are incorporated separately from the Diocese but are considered “Diocesan schools.” The remaining three elementary schools and four secondary schools are independent from, but located within, the Diocese and fall under the spiritual jurisdiction of Bishop Farrell.
33. The Diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. In order to make a Catholic education available to as many children as possible, the Diocese expends substantial funds in tuition assistance programs; it awarded over $700,000 in tuition assistance for the 2011–2012 school year. Fifteen percent of the students in parochial elementary schools are minorities.
34. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. For example, Bishop Dunne Catholic School (“Bishop Dunne”), located in Southwest Dallas, serves a diverse student body which reflects that of the entire Dallas community. Serving children in Dallas proudly for over 110 years, Bishop Dunne has a student population of approximately 600 students, over 75% of whom are minorities and nearly 50% of whom are not Catholic. Schools like Bishop Dunne are no less an expression and outgrowth of genuine Catholic belief because they serve a significant number of non-Catholics. Indeed, quite the opposite: the Diocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education. As Bishop Dunne recognizes, “Concern for the poor is at the heart of our educational mission, where we are determined to provide educational opportunities for as many materially poor students as possible
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and continue to look for new ways to increase our efforts on their behalf. We work to sensitize the entire school community to the needs of the poor, both locally and globally. In the 21st century, this attitude is crucial. We strive to address the needs of our students who experience learning, personal or social problems.” Bishop Dunne Catholic School, What We Believe (Special Concern for the Poor and Marginalized), available at http://www.bdhs.org/podium/default.aspx?t=138556 (last visited May 17, 2012).
35. The schools of the Diocese offer a unique educational experience unlike any other in the area. In the words of Bishop Farrell, “Academics is more than the curriculum, it includes the learning environment, the quality of the teaching and how to incorporate one’s educational experience into a Christian value-centered life. Information is not knowledge and knowledge that is not applied is betrayed.” Most Reverend Kevin J. Farrell, D.D., Catholic Schools Week (Jan. 19, 2012), available at http://bishopkevinfarrell.org/blog/2012/01/catholic-schools-week-2/ (last visited Apr. 17, 2012). To that end, the Diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. Service, the giving of one’s time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential. In recent years, many Diocesan schools have received Blue Ribbon recognition from the National Catholic Educational Association. Remarkably, for over a decade, 100% of graduates from Bishop Dunne have achieved acceptance for college admission. Nationally, over 99% of students in Catholic high schools graduate.
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36. Much of the social service work of the Diocese is performed through its 74 parishes and quasi-parishes. The parishes within the Diocese maintain their own charitable efforts, serving the needs of their communities with programs including parish chapters of the St. Vincent DePaul Society, counseling for youth and adults, English as a second language classes, meals served to the homeless, and visits to nursing homes. Several parishes in the Diocese spread their good works beyond the Dallas community through mission trips to Mexico and Ecuador, and through several medical and youth missions each year to Trujillo, Honduras. The Diocese oversees all of the social service work undertaken by its parishes. Neither the Diocese nor its parishes keep a tally of persons served through these outreach programs, nor do they ever request to know the religious affiliation of those served.
37. In summary, the Diocese of Dallas, a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas, has over 100 employees at its Pastoral center, nearly 90 of whom are benefits-eligible. As noted above, the Diocese includes 31 Diocesan schools and oversees 7 other affiliated schools. These schools serve over 15,000 students, including Catholics and nonCatholics alike. These schools employ approximately 1,300 teachers. And through its parishes, the Diocese serves an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of material, educational, or other assistance, without regard to religious belief. The Diocese does not know how many of those whose needs are met through the social service programs of its parishes are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it serves. That inquiry, however, would substantially burden the Diocese’s exercise of religion.
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38. It is therefore unclear whether the Government will conclude that the Diocese qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
39. Moreover, determining whether an organization—such as the Diocese—qualifies for the exemption will require the Government to engage in an intrusive inquiry, based on an understanding of religion inconsistent with the Catholic faith, into whether, in the view of the Government, (1) the Diocese’s “purpose” is the “inculcation of religious values,” (2) the Diocese “primarily” employs “persons who share [its] religious tenets,” even though it hires many Catholics and non-Catholics, and (3) the Diocese “primarily” serves such people, even though its schools and social services are open to individuals of all faiths.
40. Regardless of outcome, the Diocese strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
41. Finally, the Diocese operates a self-insured health plan. That is, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees. Instead, the Diocese itself functions as the insurance company underwriting its employees’ medical costs through a plan administered by a Third-Party Administrator, Aetna.
42. The self-insured health plan offered by the Diocese to its employees does not cover abortion-inducing drugs, sterilization, or contraceptives used to prevent pregnancy.
43. The Diocese’s self-insured health plan does not meet the definition of a “grandfathered” plan within the meaning of the Patient Protection and Affordable Care Act. The Diocese has not included a statement that the plan is believed to be a grandfathered plan, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
44. The plan year for the Diocese begins on January 1.
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III. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 45. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
46. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for— (4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or copayment.
47. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010); 42 U.S.C. § 18011. These so-called
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“grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. The Government estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
48. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
49. Under the Internal Revenue Code, employers who fail to provide all coverage required by the U.S. Government Mandate will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
50. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventive Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
51. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
52. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as
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incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these fines can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
53. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states that “nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii). Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
54. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however,
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lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Executive Order 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). The Act was, therefore, passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption 55. In less than two years, Defendants promulgated the U.S. Government Mandate,
subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules governing the promulgation and implementation of rules of this magnitude.
56. In particular, on July 19, 2010, Defendants issued initial interim final rules concerning § 300gg-13(a)(4)’s requirement that group health plans provide coverage for women’s “preventive care.” Interim Final Rules, 75 Fed. Reg. 41,726. Defendants dispensed with notice-and-comment rulemaking for these rules. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act
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and that “it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed.” Id. at 41,730.
57. The interim final rules referred to the Affordable Care Act’s statutory language. They indicated that “a group health plan . . . must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: . . . (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147.130(a)(iv)).
58. The interim final rules, however, failed to identify the women’s “preventive care” that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg13(a)(4). Instead, Defendants noted that “[t]he Department of HHS [was] developing these guidelines and expects to issue them no later than August 1, 2011.” Interim Final Rules, 75 Fed. Reg. at 41,731.
59. Defendants permitted concerned entities to provide written comments about the interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id. at 41,730.
60. In response, several groups engaged in a lobbying effort to persuade Defendants to include various abortion-inducing drugs and contraceptives in the “preventive care” requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned Parenthood Supports Initial White House Regulations on Preventive Care (July 14, 2010),
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available at http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm. Other commenters noted that “preventive care” could not reasonably be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be “prevented,” and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations. See, e.g., Comments of U.S. Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
61. On August 1, 2011, HHS announced the “preventive care” services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost (Aug. 1, 2011), available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register.
62. The press release made clear that the guidelines were developed by a nongovernmental “independent” organization, the Institute of Medicine. See id. In developing the guidelines, the Institute of Medicine invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of contraception, abortion, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women app. B at 217-21 (2011), http://www.nap.edu/openbook.php?record_id=13181&page=R1.
63. The Institute of Medicine’s own report, in turn, included a dissent that suggested that the Institute of Medicine’s recommendations were made on an unduly short time frame
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dictated by political considerations and without the appropriate transparency for all concerned persons.
64. In direct contradiction of the central compromise necessary for the Affordable Care Act’s passage and President Obama’s promise to protect religious liberty, HHS’s guidelines required insurers and group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See Health Res. Servs. Admin., Women’s Preventive Services, Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited April 25, 2012). FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent a fertilized embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions of living embryos.
65. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Defendants issued the amendments again without notice-and-comment rulemaking on the same grounds that they had provided for bypassing the APA with the original rules. See id. at 46,624.
66. When announcing the amended regulations, Defendants ignored the view that “preventive care” should exclude abortion-inducing drugs, sterilization, or contraceptives that do not prevent disease. Instead, they noted only that “commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their
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faith deems contrary to its religious tenets would impinge upon their religious freedom.” Id. at 46,623.
67. Defendants then sought “to provide for a religious accommodation that respect[ed]” only “the unique relationship between a house of worship and its employees in ministerial positions.” Id.
68. Specifically, the regulatory exemption ignored definitions of religious employers already existing in federal law and, instead, covered only those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals of the same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).
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69. The exemption excludes the health plans of all other religiously affiliated employers that view their missions as providing charitable, educational, and employment opportunities to all those who request it, regardless of their religious faith.
70. Moreover, determining whether an organization is sufficiently “religious” to qualify for the exemption requires an unconstitutionally invasive inquiry into an organization’s religious beliefs and practices. For example, the Government must determine the “religious tenets” of an organization and the individuals it employs and serves; it must determine whether the organization “primarily” employs and “primarily” serves individuals who “share” the organization’s “religious tenets”; and it must determine whether “the purpose” of the organization is the “inculcation of religious values.”
71. When issuing this interim final rule, Defendants did not explain why they constructed such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other “longstanding Federal laws to protect conscience” that President Obama’s executive order previously had promised to respect. See Executive Order 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). ERISA, for example, has long excluded “church plans” from its requirements, more broadly defined to cover organizations that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act’s requirement that all individuals maintain minimum essential coverage excludes those individuals who have a religious objection to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2). Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers to include services in their health plans that were contrary to their religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
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72. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations expressed the same concerns that they had before, noting that the mandated services should not be viewed as “preventive care.” They also explained that the religious exemption was “narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of U.S. Conference of Catholic Bishops, at 1-2 (Aug. 31, 2011), available at http://www.usccb.org/about/generalcounsel/rulemaking/upload/comments-to-hhs-on-preventive-services-2011-08.pdf.
73. Three months later, “[a]fter evaluating [the new] comments” to the interim final rules, Defendants gave their response. They did not request further discussion or make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short, Friday-afternoon press release, announcing, with little analysis or reasoning, that HHS had decided to keep the exemption unchanged, but creating a temporary enforcement safe harbor whereby “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. As noted by Bishop Farrell, the release effectively gave objecting religious institutions “one year to violate their consciences.” Most Reverend Kevin J. Farrell, D.D., The War Against Religious Freedom Escalates (Jan. 23, 2012), available at http://bishopkevinfarrell.org/blog/2012/01/the-waragainst-religious-freedom-escalates/ (last visited Apr. 17, 2012). Taken together, these various rules and press releases amount to a mandate that requires many religiously affiliated
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organizations to provide coverage for services to their employees that are directly contrary to their religious beliefs.
74. On February 10, 2012, after a continuing public outcry against the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had come up with a policy to “accommodate” religious objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion-inducing drugs, sterilization, or contraceptives “will be required to directly offer . . . contraceptive care [to plan participants] free of charge.” White House, Fact Sheet: Women’s Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.whitehouse.gov/the-pressoffice/2012/02/10/fact-sheet-women-s-preventive-services-and-religious-institutions.
75. Despite objections that this “accommodation” did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: “No, this is our plan.” David Eldridge & Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, http://www.washingtontimes.com/news/2012/feb/12/white-house-birth-controlcompromise-will-stand/print/.
76. Defendants subsequently explained in the Federal Register that they “plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing.” Group Health Plans and Health Insurance Issuers Relating to Coverage of
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Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012). The Federal Register further asserted that the rulemaking would “achieve the same goals for self-insured group health plans.” Id.
77. Defendants then “finalize[d], without change,” the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced “temporary enforcement safe harbor” for “non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8725; see Ctr. for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf.
78. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an “independent entity” to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage “for free.” Moreover, even if these proposals were adopted, they would still require religious organizations to provide, pay for, and/or facilitate access to the objectionable services. Finally, it is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
79. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form of an ANPRM does not, in fact, change the law. The U.S. Government Mandate
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is therefore the current, operative law. Plaintiff has until the start of the next plan year following August 1, 2013, to come into compliance with this law. IV. THE U.S. GOVERNMENT MANDATE IMPOSES AN IMMEDIATE AND
SUBSTANTIAL BURDEN ON PLAINTIFF’S RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiff’s Religious
Beliefs 80. Responding to the U.S. Government Mandate, Bishop Farrell stated that it is “an attempt by the government to impose upon Catholic institutions a requirement to be a party to an act their long-standing teaching and tradition considers contrary to the moral law.” Most Reverend Kevin J. Farrell, D.D., Moral Principles Cannot Be Compromised (Feb. 14, 2012), available at http://bishopkevinfarrell.org/blog/2012/02/moral-principles-cannot-becompromised/ (last visited Apr. 17, 2012). Noting, “it is possible to compromise situations but never moral principles,” Bishop Farrell calls the Church’s response to the U.S. Government Mandate an “effort to protect religious liberty and freedom of conscience for all.” Id. Indeed, since the founding of this country, one of the basic freedoms central to our society and legal system is that individuals and institutions are entitled to freedom of conscience and religious practice. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.” Thomas Jefferson, Letter to the Society of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809). 81. The U.S. Government Mandate seeks to require Plaintiff to provide, pay for, and/or facilitate access to services that are contrary to its religious beliefs. It thus substantially burdens Plaintiff’s firmly held religious beliefs. 82. The U.S. Government Mandate also seeks to compel Plaintiff to fund “patient education and counseling for all women with reproductive capacity.” It therefore compels
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Plaintiff to pay for, provide, and/or facilitate speech that is contrary to its firmly held religious beliefs.
83. Although the U.S. Government Mandate contains a narrow religious exemption, in order to qualify, religious organizations must submit to an invasive governmental inquiry regarding their purpose and religious beliefs. Requiring Plaintiff to submit to this governmentconducted religious test likewise substantially burdens its firmly held religious beliefs.
84. It is unclear how the Government defines or will interpret “the purpose” of an organization.
85. It is unclear how the Government defines or will interpret vague terms, such as “primarily,” “share,” and “religious tenets.”
86. It is unclear how the Government will ascertain the “religious tenets” of an organization, those it employs, and those it serves.
87. It is unclear how much overlap the Government will require for religious tenets to be “share[d].”
88. Any attempt by Plaintiff to qualify for the narrow religious employer exemption by restricting its charitable and educational mission to coreligionists would have devastating effects on the communities Plaintiff serves.
89. Indeed, the Government does not even allow Plaintiff to avoid the U.S. Government Mandate by exiting the health care market. Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose Plaintiff to substantial fines. It is no “choice” to leave those employees scrambling for health insurance while subjecting Plaintiff to significant fines for
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breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiff to adhere to its religious beliefs.
90. Nor would the opaque, promised “accommodation”—even if it were law, which it is not—relieve Plaintiff from the unconscionable position in which the U.S. Government Mandate currently puts it, for numerous reasons.
91. First, the promised “accommodation” would not alter the fact that Plaintiff would be required to facilitate practices that run directly contrary to its beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
92. Second, any requirement that insurance companies or other independent entities provide preventive services “free of charge” is illusory. For-profit entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the proposed accommodation, doctors will still have to be paid to prescribe the objectionable services, and drug companies and pharmacists will still have to be paid for providing them. Hypothetical future savings cannot be used to pay those fees; rather, the money will necessarily be derived from increased premiums or fees.
93. Third, the “accommodation” does not affect the narrow exemption applicable to “religious employers.” To qualify for that narrow exemption, religious organizations must submit to an invasive governmental inquiry. Requiring Plaintiff to submit to this governmentconducted test to determine if Plaintiff is sufficiently religious is inappropriate and substantially burdens its firmly held religious beliefs.
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94. Finally, as noted herein, the U.S. Government Mandate is burdening Plaintiff’s religious beliefs right now. Plaintiff cannot possibly wait until August 1, 2013, to determine how to respond to the U.S. Government Mandate.
95. In short, while the President claimed to have “f[ou]nd a solution that works for everyone” and that ensures that “[r]eligious liberty will be protected,” in reality, his promised “accommodation” does neither.
96. Accordingly, unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiff’s religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 97. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
98. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements.
99. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by religious organizations that have, as their “purpose,” the “inculcation of religious values”; that “primarily” serve individuals that share their “religious tenets”; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B).
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100. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of varying religious beliefs, provide vital social services to the individuals of varying religious beliefs, and employ individuals of varying religious beliefs. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of varying faiths.
101. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius declared that “we are in a war,” presumably with those entities, like Plaintiff, whose beliefs differ from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser.
102. Consequently, on information and belief, Plaintiff alleges that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
103. The U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest.
104. The U.S. Government has no compelling interest in forcing Plaintiff to violate its sincerely held religious beliefs by requiring it to provide, pay for, or facilitate access to abortion-
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inducing drugs, sterilizations, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiff does inhibits any individual from exercising that right.
105. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiff to violate its religious beliefs. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiff to violate its conscience is the least restrictive means of furthering its interest.
106. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiff provides. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiff do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
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107. That is unconscionable. Accordingly, Plaintiff seeks a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiff, an injunction barring its enforcement, and an order vacating the Mandate.
D. The U.S. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government In Religion And Interferes With Religious Institutions’ Religious Doctrine
108. The U.S. Government Mandate’s religious employer exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
109. In order to determine whether Plaintiff—or any other religious organization— qualifies for the exemption, the Government would have to identify the organization’s “religious tenets” and determine whether “the purpose” of the organization is to “inculcate” people into those tenets.
110. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organization ultimately employs, educates, and serves.
111. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are “share[d].”
112. Regardless of outcome, this inquiry is unconstitutional, and Plaintiff strongly objects to such an intrusive governmental investigation into an organization’s religious mission.
113. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.
114. The Government should not base an exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose.
115. By limiting that legitimate purpose to inculcation, at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious
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autonomy. Religious institutions have the right to determine their own religious purpose, including religious purposes broader than inculcation, without Government interference and without losing their religious liberties.
116. Defining religion based on employing and serving primarily people who share the organization’s religious tenets directly contradicts Plaintiff’s sincerely held religious beliefs regarding its religious mission to serve all people, regardless of whether or not they share the same faith.
E. The U.S. Government Mandate Is Causing Present Hardship to Plaintiff That Should Be Remedied by a Court
117. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiff that merits judicial relief now.
118. Health plans do not take shape overnight. Many analyses, negotiations, and decisions must occur each year before Plaintiff can offer a health benefits package to its employees. For example, an employer using an outside insurance issuer must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. An employer that is selfinsured—like Plaintiff—after consulting with its actuaries, must similarly negotiate with its third-party administrator.
119. Under normal circumstances, Plaintiff must begin the process of determining its health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
120. For example, if Plaintiff decides that the only tolerable option is to attempt to qualify as a “religious employer” under the U.S. Government Mandate, it will need to undertake
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a major overhaul of its organizational structure, hiring practices, and the scope of its programming. This process could take years.
121. In addition, if Plaintiff does not comply with the U.S. Government Mandate, it may be subject to annual government fines and penalties. Plaintiff requires time to budget for any such additional expenses.
122. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiff’s ability to hire and retain employees.
123. Plaintiff therefore needs judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on it.
CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA
124. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 125. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 126. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 127. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 128. The U.S. Government Mandate requires Plaintiff to provide, pay for, and/or facilitate practices and speech that are contrary to its religious beliefs.
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129. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiff must submit to an intrusive government inquiry into its religious beliefs.
130. The U.S. Government Mandate substantially burdens Plaintiff’s exercise of religion.
131. The Government has no compelling governmental interest to require Plaintiff to comply with the U.S. Government Mandate.
132. Requiring Plaintiff to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
133. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiff, Defendants have violated RFRA.
134. Plaintiff has no adequate remedy at law. 135. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 136. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 137. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 138. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 139. The U.S. Government Mandate requires Plaintiff to provide, pay for, and/or facilitate practices and speech that are contrary to its religious beliefs.
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140. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiff must submit to an intrusive government inquiry into its religious beliefs.
141. The U.S. Government Mandate substantially burdens Plaintiff’s exercise of religion.
142. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception and related education and counseling.
143. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiff’s exercise of religion.
144. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
145. The Government has no compelling governmental interest to require Plaintiff to comply with the U.S. Government Mandate.
146. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
147. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiff’s religious exercise in violation of the Free Exercise Clause of the First Amendment.
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148. Plaintiff has no adequate remedy at law. 149. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT III Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 150. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 151. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government. 152. This prohibition on excessive entanglement protects organizations as well as individuals. 153. In order to qualify for the exemption to the U.S. Government Mandate for “religious employers,” entities must submit to an invasive government investigation into an organization’s religious beliefs, including whether the organization’s “purpose” is the “inculcation of religious values” and whether the organization “primarily employs” and “primarily serves” individuals who share the organization’s religious tenets. 154. The U.S. Government Mandate thus requires the Government to engage in intrusive inquiries and judgments regarding questions of religious belief or practice. 155. The U.S. Government Mandate results in an excessive entanglement between religion and Government. 156. The U.S. Government Mandate is therefore unconstitutional and invalid. 157. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 158. Plaintiff has no adequate remedy at law.
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159. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment 160. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 161. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 162. This mandate of equal treatment protects organizations as well as individuals. 163. The U.S. Government Mandate’s narrow exemption for certain “religious employers” but not others discriminates on the basis of religious views or religious status. 164. The U.S. Government Mandate’s definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities’ religious beliefs or practices. 165. The U.S. Government Mandate’s definition of religious employer furthers no compelling governmental interest. 166. The U.S. Government Mandate’s definition of religious employer is not narrowly tailored to further a compelling governmental interest. 167. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 168. Plaintiff has no adequate remedy at law. 169. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
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COUNT V Interference in Matters of Internal Church Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment 170. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 171. The Free Exercise Clause and Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 172. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 173. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 174. Plaintiff is a religious organization affiliated with the Roman Catholic Church. 175. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 176. Plaintiff has abided and must continue to abide by the decision of the Catholic Church on these issues. 177. The Government may not interfere with, or otherwise question, the decision of the Catholic Church that its religious organizations may not support, promote, or materially cooperate in abortion, sterilization, and contraception services. 178. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
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179. Plaintiff has therefore made the internal decision that the health plan it offers to its employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
180. The U.S. Government Mandate interferes with Plaintiff’s internal decisions concerning its structure and mission by requiring it to facilitate practices that directly conflict with Catholic beliefs.
181. The U.S. Government Mandate’s interference with Plaintiff’s internal decisions affects its faith and mission by requiring it to facilitate practices that directly conflict with its religious beliefs.
182. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiff in a manner that affects Plaintiff’s faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
183. Plaintiff has no adequate remedy at law. 184. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 185. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 186. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 187. The First Amendment protects organizations as well as individuals against compelled speech. 188. Expenditures are a form of speech protected by the First Amendment. 189. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious or ideological beliefs.
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190. The U.S. Government Mandate would compel Plaintiff to provide health care plans to its employees that include or facilitate coverage of practices that violate its religious or ideological beliefs.
191. The U.S. Government Mandate would compel Plaintiff to subsidize, promote, and facilitate education and counseling services regarding these practices.
192. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiff to publicly subsidize or facilitate the activity and speech of private entities that are contrary to its religious beliefs.
193. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
194. The U.S. Government Mandate furthers no compelling governmental interest. 195. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 196. Plaintiff has no adequate remedy at law. 197. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of the APA 198. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 199. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide.
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200. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
201. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
202. Defendants, instead, delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the Institute of Medicine.
203. The Institute of Medicine did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the Institute of Medicine report noted both that the Institute of Medicine conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
204. Within two weeks of the Institute of Medicine issuing its guidelines, Defendant HHS issued a press release announcing that the Institute of Medicine’s guidelines were required under the Affordable Care Act.
205. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
206. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim final rules and the final rule incorporating the guidelines.
207. Defendants’ stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute “good cause.” Providing public notice
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and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
208. By enacting the “preventive care” guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
209. Plaintiff has no adequate remedy at law. 210. The enactment of the U.S. Government Mandate without observance of a procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VIII Arbitrary and Capricious Action in Violation of the APA 211. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 212. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 213. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 214. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 215. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer. 216. Defendants failed to consider the suggestion of many commenters that abortioninducing drugs, sterilization, and contraception could not be viewed as “preventive care.”
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217. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened.
218. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions they made.
219. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
220. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
221. Defendants’ promulgation of the U.S. Government Mandate violates the APA. 222. Plaintiff has no adequate remedy at law. 223. The U.S. Government Mandate imposes an immediate and ongoing harm on the Plaintiff that warrants declaratory relief.
COUNT IX Acting Illegally in Violation of the APA 224. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 225. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 226. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA. 227. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the
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health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d), 125 Stat. 786, 1111 (2011).
228. The Affordable Care Act states that “nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). It adds that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]” Id. § 18023(b)(1)(A)(ii).
229. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be required to provide such plans.
230. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing drugs, sterilization, contraception, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
231. The U.S. Government Mandate violates RFRA. 232. The U.S. Government Mandate violates the First Amendment. 233. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 234. Plaintiff has no adequate remedy at law.
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235. The enactment of the U.S. Government Mandate that is not in accordance with law and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
JURY DEMAND 236. Plaintiff respectfully demands a jury trial in this matter.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiff’s rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiff’s rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting Defendants from enforcing the U.S.
Government Mandate against Plaintiff; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiff attorneys’ fees and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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Case 3:12-cv-01589-B Document 1 Filed 05/21/12 Page 47 of 47 PageID 47 Respectfully submitted, this the 21st day of May, 2012.

HUI-150758

By: /s/ Terence M. Murphy Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com Thomas K. Schroeter Texas State Bar No. 24056279 tkschroeter@jonesday.com Katherine J. Lyons Texas State Bar No. 24070191 kjlyons@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
James S. Teater Texas State Bar No. 19757425 jsteater@jonesday.com JONES DAY 717 Texas Street Suite 3300 Houston, Texas 77002-2712 (832) 239-3939 (832) 239-3600 facsimile
Counsel for Plaintiff

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

THE ROMAN CATHOLIC DIOCESE §

OF DALLAS,

§

§

Plaintiff,

§

§

v.

§

§

KATHLEEN SEBELIUS, HILDA SOLIS, §

TIMOTHY GEITHNER, U.S.

§

DEPARTMENT OF HEALTH AND

§

HUMAN SERVICES, U.S. DEPARTMENT §

OF LABOR, and U.S. DEPARTMENT OF §

TREASURY,

§

§

Defendants.

§

CIVIL ACTION NO. 3:12-CV-1589-B

MEMORANDUM OPINION & ORDER Before the Court is Defendants’ Motion to Dismiss for Lack of Jurisdiction (doc. 9), filed August 6, 2012. Finding that the Plaintiff has standing to bring this suit, the Court nonetheless concludes that the issues raised in the Complaint are not ripe for review. Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion as follows.
I. BACKGROUND In one of many similar cases threading their way through the federal courts, Plaintiff The Roman Catholic Diocese of Dallas has sued the United States Departments of Health and Human Services (“HHS”), Labor, and Treasury, as well as their respective Secretaries, Kathleen Sebelius, Hilda Solis, and Timothy Geithner in their official capacities (collectively, “Defendants”), to
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challenge certain provisions of the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010), and the regulations issued by each of the Defendants implementing it. Specifically, Plaintiff avers that the ACA and its implementing regulations, once enforced, will require Plaintiff to provide its employees with health insurance coverage for services and medications that defy the religious tenets held by Plaintiff. Plaintiff files this pre-enforcement challenge to the ACA for declaratory and injunctive relief. A. Statutory and Regulatory Background
In March 2010, Congress enacted the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), which was amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively referred to as the “ACA”). The ACA established requirements for insured and self-insured “employee welfare benefit plans,” as defined in the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1002(1). See 42 U.S.C. § 300gg-91(a)(1). Under the ACA, the group health plans must provide coverage for women’s “preventive care and screenings” as defined by the comprehensive guidelines set forth by the Health Resources and Services Administration (“HRSA”), an agency within the HHS. 42 U.S.C. § 300gg-13(a). The “preventive care” coverage may not impose any cost-sharing requirements on the patient. 42 U.S.C. § 300gg-13(a)(4). Should an employer violate the ACA, it may be subject to monetary fines under the Internal Revenue Code, 26 U.S.C. §§ 4980D(b), 4980H(a), (c)(1); Health Insurance Portability and Accountability Act, 42 U.S.C. § 300gg22(b)(2)(C)(i); and ERISA, 29 U.S.C. § 1132(a)(1)(B). The health care requirements are waived for “grandfathered” group health plans, which are generally defined as plans that existed prior to
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March 23, 2010 and have not undergone designated changes. 26 C.F.R. § 54.9815-1251T(a)(1)(i)
(Treasury); 29 C.F.R. § 2590.715-1251(a)(1)(i)(Labor); 45 C.F.R. § 147.140(a)(1)(i)(HHS).
On July 19, 2010, the government issued interim final rules implementing the preventive
services coverage provision and announced that HHS was developing the HRSA-supported
comprehensive guidelines to define preventive care coverage under the ACA. 75 Fed. Reg. 41,726
(July 19, 2010). HHS commissioned the government-funded Institute of Medicine to recommend
the substance of the guidelines. The Institute of Medicine recommended that “preventive care”
should include Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.1 See Inst.
of Med., Clinical Preventive Services for Women: Closing the Gaps (2011). On August 1, 2011, the
Defendants adopted the guidelines advanced by the Institute of Medicine. 76 Fed. Reg. 46,621 (Aug.
3, 2011).
On August 3, 2011, the HRSA also implemented an amendment that exempted certain
religious employers from the comprehensive guidelines and requirements to cover contraceptive
services. Id.; 45 C.F.R. § 147.130(a)(1)(iv)(A). The regulation defined a “religious employer” as:
an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as
1Employers are not required to cover abortion services, 42 U.S.C. § 18023(b)(1)(A)(i), and federal agencies will lose funding should they require that an employer provide coverage for abortions. Pub. L. No. 112-74, 125 Stat. 786 (2011); Exec. Order 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
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amended.2 45 C.F.R. § 147.130(a)(1)(iv)(B). Together, Defendants adopted this version of the religious employer exemption in the final regulations on February 15, 2012.
Aware that some religious entities may not qualify for the “religious employer” exemption, the government issued a bulletin announcing a one-year “temporary enforcement safe harbor” for certain non-profit organizations. An organization meeting the following criteria is said to be safe from enforcement during the safe-harbor period: (1) the employer is a non-exempt, non-profit organization, (2) due the organization’s religious objections, the health care plan has not offered contraceptive coverage from February 10, 2012 onward, (3) the plan year begins between August 1, 2012 and August 1, 2013, and (4) the organization self-certifies that it meets the above criteria. HHS, Guidance on the Temporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012); 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012); 77 Fed. Reg. 16,501 (Mar. 21, 2012). The purported purpose of the oneyear safe-harbor provision was to give the government time “to develop and propose changes to the[] final regulations that would meet two goals–providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” Id. at 8727. The safe harbor began February 10, 2012 and continues through the first plan year for any plan that begins on or before August 1, 2012, effectively protecting qualified entities from enforcement until their new plan year initiating on or after August 1, 2013. The government pledges to work with non-exempt religious organizations to issue amended regulation(s) that accommodate religious coverage concerns. Id. at 8728-8729.
2Internal Revenue Code § 6033(a)(3)(A)(i) and (iii) apply to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.”
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On March 21, 2012, the government published an Advanced Notice of Proposed Rule Making (“ANPRM”), notifying the public of its intent to reconsider the ACA implementing regulations, including ways to accommodate non-exempt religious organizations. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM stated that the departments “intend to finalize these amendments to the final regulations such that they are effective by the end of the temporary enforcement safe harbor.” Id. at 16,503. The ANPRM recognized the need to “to help identify issues relating to the accommodation to be developed with respect to non-exempt, non-profit religious organizations with religious objections to contraceptive coverage.” Id. The ANPRM further outlined the process for amendment, including an ANPRM comment period, publication of an proposed rule, a comment period on the proposed rule, and promulgation of amended final regulations. Id.
When this action was filed, no actual or concrete proposals to amend the ACA implementing regulations had been promulgated, though the government had made numerous public statements that the proposed amendments would be finalized in the first quarter of 2013. Doc. 31-1, Resp. to Notice at 3 n.3. The government had also represented to numerous federal courts that amendment would be forthcoming and that they would never enforce the current regulations against certain nonexempt religious entities. See, e.g., Wheaton Coll. v. Sebelius, No. 12-5273 and 12-5291, 703 F.3d 551, __, 2012 U.S. App. LEXIS 26716, at *7-8 (D.C. Cir. Dec. 18, 2012).
Approximately eight months after Plaintiff filed this action and five months after Defendant’s Motion to Dismiss was fully briefed, Defendants issued a Notice of Proposed Rulemaking (“NPRM”), 78 Fed. Reg. 8456 (Feb. 6, 2013). The NPRM offers a proposed amendment to the ACA implementing regulations and requests comment on the same. The NPRM comment period remains open until April 8, 2013. Id. Among other suggestions, the NPRM outlines an amended definition
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of “religious employer” for the exemption at 45 C.F.R. § 147.130(a)(1)(iv)(B). The proposed amendment eliminates the first three prongs of the religious employer test, requiring only that the employer “is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461. The explained purpose of the amendment is as follows: “[T]he proposed rules would amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths.” Id. at 8459. The NPRM also declares that “[t]he Departments intend to finalize all such proposed amendments before the end of the temporary enforcement safe harbor.” Id. at 8459. B. The Roman Catholic Diocese of Dallas
Plaintiff is a nonprofit organization existing under the Code of Canon Law of the Roman Catholic Church. Doc. 1, Compl. ¶ 15. It operates seventy-four parishes and quasi-parishes, thirtyeight elementary and secondary schools, and other 501(c)(3) charitable enterprises in the Dallas, Texas area. Id. ¶ 27. Plaintiff provides its benefits-eligible employees with a self-insured health plan through which Plaintiff underwrites employee health costs using a third-party plan administrator, Aetna. Id. ¶ 41. Plaintiff’s religious principles do not support the use of “abortion-inducing drugs,” the “facilitation of sterilization services,” “contraception,” or related counseling services. Id. ¶¶ 2, 4. As such, Plaintiff’s employee health care plan does not presently include coverage for those services. Id. ¶ 42.
Plaintiff certifies that its health care plan does not meet the definition of a “grandfathered” plan under 26 C.F.R. § 54.9815-1251T(a)(1)(i) (Treasury); 29 C.F.R. § 2590.715-
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1251(a)(1)(i)(Labor); 45 C.F.R. § 147.140(a)(1)(i)(HHS). Id. ¶43. Plaintiff maintains that it “does not know” whether it falls within the protection of the current regulatory exemption for religious employers, because under the second and third prongs of that definition, religious employers must primarily employ and serve persons who share the organization’s faith.3 45 C.F.R. § 147.130(a)(1)(iv)(B). Plaintiff’s Catholic mission, however, requires it to hire and serve nonCatholics. For example, Plaintiff operates parochial schools that educate over 15,000 students; in one such establishment, Bishop Dunne Catholic School, half of its students are non-Catholics. Id. ¶¶ 32, 34. Plaintiff also oversees significant social service work for the homeless, immigrants, and the elderly, but does not keep records of the persons served nor request to know their religious affiliation. Id. ¶¶ 36-37. Third, Plaintiff employs 90 benefits-eligible employees at its Pastoral Center and approximately 1,300 benefits-eligible teachers, but Plaintiff similarly does not request nor keep track of its employees’ religious affiliation. Id. ¶ 37. Because it serves and employs non-Catholics, Plaintiff fears that it would not qualify for an exemption under the ACA implementing regulations and will be forced to provide coverage for services involving artificial interference with the creation of human life, contrary to its sincerely-held values and religious beliefs. Id. ¶ 9. Plaintiff does not dispute that it qualifies for the temporary enforcement safe harbor and thus will not be required to comply with the ACA coverage mandates until January 1, 2014, when its health care plan year begins. C. Federal Cases Reviewing ACA Challenges
Numerous federal district courts have been faced with nearly identical ACA challenges by
3Given the recency of the NPRM, Plaintiff has not taken a position as to whether it would fall under the religious employer exemption proposed in the NPRM. However, Plaintiff admits that “[i]t is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.” Doc. 1, Compl. ¶ 15.
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Catholic entities, universities, and other religiously-oriented groups. The vast majority of cases have found that challenges to the ACA and the regulations are nonjusticiable because the plaintiffs lack standing and the claims are unripe. See Archdiocese of St. Louis v. Sebelius, No. 4:12-CV-00924-JAR, 2013 WL 32926 (E.D. Mo. Jan. 29, 2013); Univ. of Notre Dame v. Sebelius, No. 3:12CV253RLM, 2012 U.S. Dist. LEXIS 183267 (N.D. Ind. Dec. 31, 2012); Zubik v. Sebelius, No. 2:12-CV-00676 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 U.S. Dist. LEXIS 166152 (M.D. Tenn. Nov. 21, 2012); Legatus v. Sebelius, No. 12-12061, 2012 U.S. Dist. LEXIS 156144 ( E.D. Mich. Oct. 31, 2012) (Catholic organization did not have standing, but private individual did; ripeness not at issue); Nebraska v. HHS, 877 F. Supp. 2d 777 (D. Neb. 2012). Only two courts have found the challenge justiciable. Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12-CV-314-Y (N.D. Tex. Jan. 31, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542 (BMC), 2012 U.S. Dist. LEXIS 172695 (E.D.N.Y. Dec. 4, 2012) (finding justiciable a nonprofit’s ACA challenge, but dismissing the claims by the Diocese and Catholic Charities for lack of standing). The only circuit court to review an ACA decision held that the plaintiffs had standing to challenge the ACA and implementing regulations, but determined that the issues were not ripe given the government’s representations that the regulations would be amended. Wheaton Coll., 703 F.3d at 551 (holding case in abeyance rather than dismissing it).4 Following the D.C. Circuit Court’s ruling, several courts avoided deciding ACA challenges based on standing, but granted dismissal on ripeness grounds. See Roman Catholic Archbishop of Wash. v. Sebelius, No. 12-0815, 2013 WL 285599
4The Circuit Court consolidated and reversed in part Belmont Abbey Coll. v. Sebelius, No. 11-1989 (JEB), 2012 U.S. Dist. LEXIS 125519 (D.D.C. Sept. 5, 2012), and Wheaton Coll. v. Sebelius, No. 12-1169 (ESH), 2012 U.S. Dist. LEXIS 120187 (D.D.C. Aug. 24, 2012), both of which granted motions to dismiss on standing and ripeness grounds.
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(D.D.C. Jan. 25, 2013); Persico v. Sebelius, No. 1:12-CV-123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colo. Christian Univ. v. Sebelius, 2013 U.S. Dist. LEXIS 2677 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, No. 12-1276, 2013 U.S. Dist. LEXIS 1261 (C.D. Ill. Jan. 3, 2013); Catholic Diocese of Biloxi, Inc. v. Sebelius, No. 1:12CV158-HSO-RHW, 2012 U.S. Dist. LEXIS 183771 (S.D. Miss. Dec. 20, 2012). No court has issued a decision on a relevant ACA challenge since the NPRM was published.5 D. Plaintiff’s Civil Action
On May 21, 2012, Plaintiff filed a Complaint against Defendants alleging the following causes of action: the ACA and implementing regulations constitute a substantial burden on Plaintiff’s religious exercise in violation of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4 (count I); the ACA and implementing regulations constitute a substantial burden on Plaintiff’s religious exercise in violation of the Free Exercise Clause of the First Amendment to the U.S. Constitution (count II); the ACA and implementing regulations require the government’s excessive entanglement into religion in violation of the Free Exercise and Establishment Clauses of the First Amendment (count III); the ACA and implementing regulations constitute religious discrimination in violation of the Free Exercise and Establishment Clauses (count IV); the ACA and implementing regulations constitute interference in Plaintiff’s internal church governance in violation of the Free Exercise and Establishment Clauses (count V); the ACA and implementing regulations require compelled speech in violation of the Free Speech Clause of the First Amendment (count VI); the implementing regulations to the ACA were promulgated without
5Throughout this litigation, the parties have laudably updated the Court on the outcome of each ACA case.
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notice-and-comment rulemaking and the government delegated its obligations to the Institute of Medicine in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. (count VII); the ACA and implementing regulations require the government to take action that is arbitrary and capricious in violation of the APA (count VIII); and the ACA and implementing regulations are unlawful, in violation of the APA (count IX). Doc. 1, Compl. ¶¶ 124-235. The Complaint requests declaratory judgments finding that the ACA and implementing regulations violate the RFRA and the First Amendment as applied to Plaintiff; a declaratory judgment that the ACA and implementing regulations violate the APA; an injunction prohibiting the government from enforcing the ACA and implementing regulations against Plaintiff; an order vacating the ACA and implementing regulations; and expert and attorney’s fees. Id. at ¶¶ 14, 107, prayer.
Following the Complaint, Defendants jointly filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Doc. 9, Mot. The Motion seeks dismissal on the basis that Plaintiff lacks standing to challenge the ACA and implementing regulations and that the issues raised within the Complaint are nonjusticiable as they are not yet ripe. Id. Following the parties’ substantial briefing, the Court requested and received supplemental briefing on several key issues.6 Docs. 42, 49, and 50. The Motion has now been fully briefed. By prior Order, this Court denied without prejudice a motion (doc. 12) by the American Center for Law and Justice and seventy-nine Members of the United States Congress to appear as amicus curiae, concluding that the named parties adequately and sufficiently presented the arguments and perspectives relevant to the Motion to Dismiss and that the Movants’ proposed amicus curiae brief would not further assist
6During the supplemental briefing period, the government issued the NPRM. The Court did not request further briefing, though Defendants applied the NPRM to this case in their additional brief. Doc. 49.
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the Court in resolving the issues at hand. Doc. 17. II.
LEGAL STANDARDS Federal courts have the power to decide only actual cases or controversies. U.S. Const. art. III, § 2; Chafin v. Chafin, __ U.S. __, No. 11-1347, 2013 U.S. LEXIS 1122, at *12-13 (Feb. 19, 2013). “The justiciability doctrines of standing, mootness, political question, and ripeness all originate in Article III’s case or controversy language.” Choice Inc. v. Greenstein, 691 F.3d 710, 715 (5th Cir. 2012) (internal quotation marks omitted). Defendants base their Motion to Dismiss for Lack of Jurisdiction on Plaintiff’s alleged lack of standing and the nonjusticiability of Plaintiff’s unripe claims. Standing and ripeness are required elements of subject matter jurisdiction and are therefore properly challenged on a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss. See Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989); WesternGeco L.L.C. v. Ion Geophysical Corp., 776 F. Supp. 2d 342, 350 (S.D. Tex. 2011). A court must dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) where it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A party moving for dismissal under Rule 12(b)(1) may bring either a “facial” or “factual” attack on the existence of subject matter jurisdiction. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); see Barrett Computer Servs., Inc. v. PDA, Inc., 884 F.2d 214, 220 n.5 (5th Cir. 1989). Defendants here base their jurisdictional contest on the face of Plaintiff’s Complaint. Doc. 9, Mot. at 10-11. When a facial attack is raised against subject matter jurisdiction, “the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised–the court must consider the allegations in the plaintiff’s complaint as true.”
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Williamson, 645 F.2d at 412; King v. Life Sch., 809 F. Supp. 2d 572, 577 (N.D. Tex. 2011). Accordingly, the Court treats Plaintiff’s allegations as true, but disregards legal conclusions couched as statements of fact. See Papasan v. Allain, 478 U.S. 265, 286 (1986). It is the party invoking jurisdiction, and not the party moving for dismissal, who bears the burden to establish the court’s subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); In re Eckstein Marine Serv., 672 F.3d 310, 314 (5th Cir. 2012).
III. ANALYSIS The government moves to dismiss this action on standing and ripeness grounds. The Court addresses each issue, in turn, below. A. Standing The standing inquiry is a threshold jurisdictional issue and focuses on the ability of a particular party to bring claims before a federal court, not on the issues on which adjudication is sought. Warth v. Seldin, 422 U.S. 490, 498 (1975). The standing doctrine is in place to ensure that “there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party” because, “[w]here that need does not exist, allowing courts to oversee legislative or executive action would significantly alter the allocation of power away from a democratic form of government.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (internal quotation marks and alteration omitted). For Article III standing to exist, three fundamental constitutional prerequisites must be satisfied: (1) the plaintiff must have suffered an injury in fact, (2) the injury must have a causal connection to the defendant’s conduct, and (3) it must be likely, and not merely speculative, that the injury suffered will be redressed by a decision favorable to the plaintiff. Defenders of Wildlife,
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504 U.S. at 560-61. Certain prudential requirements also bear on the question of standing. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). A party may not raise claims on behalf of third-parties not before the court or complain of generalized grievances, and the complainant must fall within the zones of injury and interest contemplated by the statute or constitutional provision at issue. Id.; Apache Bend Apartments, Ltd. v. United States, 987 F.2d 1174, 1176 (5th Cir. 1993) (en banc). These constitutional and prudential limitations exist in injunctive and declaratory relief cases. Camreta v. Greene, 131 S. Ct. 2020, 2041 (2011); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27 (2007); Summers, 555 U.S. at 493.
A plaintiff’s standing to bring a cause of action is assessed at the time the suit was filed. Davis v. FEC, 554 U.S. 724, 734 (2008) (“While the proof required to establish standing increases as the suit proceeds, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” (citing cases)); Defenders of Wildlife, 504 U.S. at 571 n.4 (noting the Court’s “longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed”); Pederson v. La. State Univ., 213 F.3d 858, 870 (5th Cir. 2000). Events that occur subsequent to the filing of a complaint will not prevent a plaintiff from establishing standing which existed at the time of the pleadings. See Smith v. Sperling, 354 U.S. 91, 93 (1957)(“It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.” (citing Mollan v. Torrance, 22 U.S. 537, 539 n.1 (1824))); Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (“We have consistently held that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events.”); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
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(TOC), Inc., 528 U.S. 167, 189-92 (2000) (comparing standing with the doctrine of mootness, which is affected by subsequent events).
The government does not challenge Plaintiff’s ability to demonstrate the traceability or redressability elements of the constitutional standing doctrine, nor does it argue against Plaintiff’s prudential standing. The sole inquiry is whether Plaintiff has actually suffered or will imminently suffer an injury in fact from Defendants’ enactment of the ACA and implementing regulations.
An “injury in fact” is an injury that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Defenders of Wildlife, 504 U.S. at 560. “A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct.” Davis, 554 U.S. at 734 (citing Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). “A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. But one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (internal quotation marks and alternations omitted).
Plaintiff explicitly advances two injuries upon which it has standing for all of its claims: its imminent injury in the form of future impairment of its First Amendment rights and actual injury in the form of the inability to prepare its 2014 health plan. Doc. 13, Resp. at 9-16. The Court also discerns allegations of a third injury: the actual or imminent injury arising from several of the APA claims. The Court addresses the sufficiency of each of these alleged injuries, in turn, below.
1. Imminent Injury from Enforcement of the ACA Plaintiff alleges in its pleadings that enforcement of the ACA and implementing regulations will cause imminent injury to Plaintiff in the form of burdening and interfering with its exercise of
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religion and right of free speech. See, e.g., doc. 1., Compl. ¶¶ 130, 140-141, 181. Defendant insists that the ACA’s implementing regulations are undergoing amendment to address the very concerns raised by Plaintiff, so it is unlikely that Plaintiff will be required to comply with the ACA or suffer the alleged imminent injuries to its First Amendment rights.7
As an initial matter, Plaintiff surmises that the substance of Defendants’ Motion applies only to some of its regulatory challenges but not to its challenges to the religious employer exemption. Doc. 13, Resp. at 7-8. Plaintiff basis its belief on language from the ANPRM, which it construes to reject the possibility of an amendment to the religious employer exemption. Id. The Court does not agree with Plaintiff’s interpretation of the ANPRM as foreclosing amendment to the exemption. Accordingly, the government’s arguments are certainly relevant to all of Plaintiff’s causes of action.
Some courts have decided that entities lack standing to challenge the ACA on the basis that they will not suffer imminent injury due to their grandfathered or exempt status. See Catholic Diocese of Peoria, 2013 U.S. Dist. LEXIS 1261, at *12-13 (decided on ripeness grounds but concluding that grandfathered status would probably prevent standing); Nebraska, 877 F. Supp. 2d at 791 (requiring plaintiffs to plead specific facts that they are not grandfathered and therefore subject to the requirements that are alleged to cause them injury); Roman Catholic Archdiocese of N.Y., 2012 U.S. Dist. LEXIS 172695, at *35-36 (dismissing two plaintiffs because they were protected under the grandfather clause). As an initial matter, the parties agree that Plaintiff is not protected by the
7Plaintiff opines that Defendants confuse the doctrine of standing with mootness, because the effect of the “potential for change in the law raises only a mootness question.” Doc. 13, Resp. at 16 n.19. Defendants prevail upon the Court to “reject plaintiff’s attempts to recast defendants’ jurisdictional arguments as questions of mootness” because this case “raises quintessential standing and ripeness questions.” Doc. 16, Reply at 15 n.11. The Court agrees with Defendants in that their Motion properly invokes Plaintiff’s standing to sue and the ripeness of Plaintiff’s pleadings but not mootness.
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grandfather clause and thus is not exempted from the ACA coverage requirements on that basis. 26
C.F.R. § 54.9815-1251T(a)(1)(i) (Treasury); 29 C.F.R. § 2590.715-1251(a)(1)(i)(Labor); 45 C.F.R.
§ 147.140(a)(1)(i)(HHS). But, Plaintiff has not plead whether it believes it is a religious employer
protected by the exemption clause, 45 C.F.R. § 147.130(a)(1)(iv)(B). Indeed, Plaintiff submits that
it is “unclear” whether it will qualify for the exemption. Doc. 1, Compl. ¶ 38. The government also
refuses to take a position on the issue. Doc. 9, Br. at 14 n.8 (noting Plaintiff’s uncertainty as to the
application of the exemption, but arguing that this “concern is irrelevant at this stage” in light of the
safe harbor provision). The Court observed that, under the ANPRM, which is not binding law, the
government contemplates a “Catholic diocese,” specifically, as qualifying for the religious employer
exemption. 77 Fed. Reg. at 16,502. Thus, despite the reasoning supporting Plaintiff’s concern that
it may not qualify as a “religious employer,” there appeared to the Court a distinct possibility that
Plaintiff might qualify for the exemption. The Court requested supplemental briefing from the parties
on whether the fact that neither party knows if Plaintiff is protected by the currently-enacted
religious employer exemption is itself a contingency that affects Plaintiff’s ability to establish the imminence of injury.8 Doc. 42, Order at 2 (citing Clinton v. City of N.Y., 524 U.S. 417, 430-31
8The Court also requested the parties’ positions on how an entity qualifies under the religious employer exemption, i.e., whether the entity must apply for the exemption or self-certify as exempt. Doc. 42, Order at 2. The government clarified that no application or self-certification for exemption is required, but rather that an employer who qualifies under the requirement “is simply exempt.” Doc. 49, Supp. Br. at 2; Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011) (“Under Auer v. Robbins, 519 U.S. 452 (1997), we defer to an agency’s interpretation of its own regulation, advanced in a legal brief, unless that interpretation is ‘plainly erroneous or inconsistent with the regulation.’”). Plaintiff responded that it has alleged that the exemption is unconstitutional regardless of the method of administration, doc. 50, Supp. Br. at 3, but that argument is inconsistent with its pleadings, as several of the causes of action explicitly invoke the certainty of an “intrusive and potentially costly governmental investigation into whether, in the Government’s view,” Plaintiff is a “religious employer” and thus exempt. See, e.g., doc. 1, Compl. ¶ 11. Further, in light of the government’s explanation of the administration of the exemption, it appears that Plaintiff need not submit to any investigative process. In any event, Plaintiff has challenged the regulations
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(1998); ACLU v. Alvarez, 679 F.3d 583, 593-94 (7th Cir. 2012); Comsat v. FCC, 250 F.3d 931, 936 (5th Cir. 2001)).
The issue was substantially clarified by the parties’ additional briefs. Plaintiff convincingly compared this case to Clinton v. City of New York, in which the Supreme Court rejected the government’s contention that a pending application for an exemption from the Balanced Budget Act affected the plaintiff’s ability to challenge the potential, immediate liability otherwise imposed by that law. 524 U.S. at 430-31. Here, the fact that the parties are unclear whether Plaintiff will fall under the religious employer exemption as currently enacted–and the fact that Plaintiff failed to take a stand in its pleadings on whether it is exempt–should similarly have no effect on Plaintiff’s ability to challenge its potential liability under the ACA. Further, Plaintiff points out that it is the very nature of pre-enforcement lawsuits that enforcement of a law against the complainant is simply a possibility of enforcement, see ACLU, 679 F.3d at 593, which is the case here given that the government has not foresworn the possibility that Plaintiff will ultimately be required to provide preventive services coverage in violation of its touted religious beliefs. Finally, Plaintiff rightfully suggests that “it would be fundamentally unfair to require a litigant to subject itself to an unconstitutional regulation before allowing the litigant to establish standing.” Doc. 50, Supp. Br. at 9. The Court is convinced, based on the parties’ supplemental briefing, that their uncertainty as to whether Plaintiff would be exempt
in part under the expectation that the fact that it serves and employs individuals outside of its faith disqualifies it from being exempt under the second and third requirements of 45 C.F.R. § 147.130(a)(1)(iv)(B). And, of course, even if Plaintiff accepts the government’s statement that it can consider itself exempt, Plaintiff would always be subject to later review by the agencies, who would ultimately determine whether Plaintiff appropriately complied with the regulations.
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from the regulation is not a contingency that itself affects Plaintiff’s ability to establish standing.9 Because Plaintiff’s health plan is not grandfathered and because Plaintiff believes it may not
qualify as an exempt religious employer, Plaintiff contends that enforcement of the ACA and its implementing regulations is likely and that the harm to Plaintiff’s religious exercise and free speech is imminent. These alleged imminent harms are sufficient to confer standing to sue. Davis, 554 U.S. at 734; Defenders of Wildlife, 504 U.S. at 560. Nonetheless, it has been the government’s contention that, even if Plaintiff is not shielded from the ACA coverage requirements under the religious employer exemption, the Court should decide that Plaintiff’s injury is not imminent because the regulations are in the process of being amended to address the very concerns Plaintiff raises in its pleadings. Doc. 9, Br. at 1-2. According to the government, the promise of these changes is evident by a combination of (1) the publication of the ANPRM, (2) the implementation of the temporary enforcement safe harbor, and (3) the government’s own representations to this Court and others. Id.
The Court agrees with Plaintiff that publication of the ANPRM is insufficient to undermine the imminence of Plaintiff’s alleged injuries. The ANPRM merely states that the government expects to address concerns similar to those raised by Plaintiff and solicits comment on the same. 77 Fed. Reg. 16,501. The ANPRM is not a proposed amendment and does not proffer contents or
9This analysis differs slightly from other courts’ requirements that plaintiffs plead specific facts showing that they are not exempt by way of the grandfather clause. See, e.g., Nebraska, 877 F. Supp. 2d at __, 2012 U.S. Dist LEXIS 104419, at *39-40. That distinction, however, may be necessary because the grandfather clause presents an objective inquiry, whereas the religious employer exemption appears to be fluid and subjective. Furthermore, Plaintiff does not challenge the process of determining whether an entity is exempt as grandfathered, but it explicitly challenges the actual means necessary for it and/or the government to determine whether it is an exempt religious employer. The Court concludes that these distinctions explain the disparate pleading requirements.
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substance of a proposed amendment. There is no concrete evidence to indicate that the government is reversing its course. See API v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012). Although the Court cannot say that every ANPRM would be insufficient to indicate a shift in administrative policy, the ANPRM relevant to this case provides no specifics to quash Plaintiff’s fear of enforcement or to disprove the imminence of Plaintiff’s injury upon enforcement of the current, final regulations.
Like the ANPRM, the safe harbor provision also does not alter the substantive coverage requirements or prevent enforcement indefinitely. 77 Fed. Reg. 8725. Instead, it merely postpones enforcement of the final regulations for a short period of time, until Plaintiff’s new plan period begins on January 1, 2014. “Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect.” Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974); see New York v. United States, 505 U.S. 144, 175 (1992); Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985); Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925); Thomas More Law Ctr. v. Obama, 651 F.3d 529, 537 (6th Cir. 2011). Further, the temporary safe harbor provision at issue here is a mere public statement and has not been made official or binding through codification. See Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 388 (4th Cir. 2001)(holding that a “policy of nonenforcement, adopted by the [agency] in a closed meeting, is somewhat more formal than [a] promise made during litigation” but that, on the other hand, the “policy is not contained in a final rule that underwent the rigors of notice and comment rulemaking” and “do[es] not carry the binding force of law”). Although the temporary enforcement safe harbor may provide some support for the promises made in the ANPRM, it is not enough to undermine a plaintiff’s standing when no law or tangible proposed amendment exists that would indicate that the
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plaintiff will be beyond the reach of enforcement of the current law. More troubling to the Court is the government’s third contention that its promises of future
non-enforcement against Plaintiff are sufficient to prove that Plaintiff has no standing to challenge the current law. See doc. 49, Supp. Br. at 3; doc. 31-1, Resp. at 3-4 (representing “that the government will never enforce [the regulations] in their current form against the plaintiff here”). The government suggests, and several other federal courts have agreed, see, e.g., Wheaton Coll., 703 F.3d at __, 2012 U.S. App. LEXIS 26716, at *7-9, that if the government makes a statement before the Court that the regulations in their current form will “almost certainly” never be enforced against Plaintiff or that the amended regulations will address all of Plaintiff’s concerns, the Court may take that representation as an eternal, factual truth, and the Plaintiff must rely upon that promise. See, e.g., doc. 16, Reply at 4. But a string of promises does not an actuality make. First, the government’s policies, plans, and representatives could change or cease to exist at any time. “[T]here is nothing that prevents the State from changing its mind. It is not forever bound, by estoppel or otherwise, to the view of the law that it asserts in this litigation.” Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (dismissing an argument that a plaintiff lacked standing “because the State has no intention” of enforcing the law against the plaintiff); N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996) (finding a credible threat of prosecution where “nothing prevents the Commission from enforcing its rule at any time with, perhaps, another change of mind of one of the Commission,” despite a promise of nonenforcement made by the state during litigation (citing Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995))); Eckles v. City of Corydon, 341 F.3d 762, 768 (8th Cir. 2003). Second, the substance of the government’s statement is empty. The government has not said, for example, that it will never require Plaintiff to provide contraceptives
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or other preventive services abhorrent to Plaintiff. The government could amend the regulations in a way that has no bearing on Plaintiff’s concerns and then enforce the coverage provisions against Plaintiff without violating its promise that the regulations “in their current form” would not be enforced against Plaintiff.10 Courts may afford deference to some government representations made before a court. See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009) (“Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.”). But representations of this nature–extremely broad and lacking substance–should never be enough to strip a plaintiff of standing. In Abbot Laboratories v. Garden, the Supreme Court noted its skepticism of government representations that attempted to diminish the plaintiff’s standing to challenge a provision for criminal sanctions under the Federal Food, Drug, and Cosmetic Act:
The Government further contends that the threat of criminal sanctions for noncompliance with a judicially untested regulation is unrealistic; the Solicitor General has represented that if court enforcement becomes necessary, “the Department of Justice will proceed only civilly for an injunction or by condemnation.” We cannot accept this argument as a sufficient answer to petitioners’ petition. This action at its inception was properly brought and this subsequent representation of the Department of Justice should not suffice to defeat it. 387 U.S. 136, 154 (1967)(internal alteration omitted). The Court concludes that the government’s unimpressive representations that the current regulations will never be enforced against Plaintiff and that amended regulations will be issued and will likely address Plaintiff’s concerns are too broad, unspecific, and unsupported to entice this Court to conclude that Plaintiffs will not be imminently
10The government has apparently declined to enter into a binding, enforceable stipulation with Plaintiff in this case to promise that it will not require Plaintiff to cover contraception and other preventive services for its employees. Doc. 50-1, Proposed Stipulation.
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injured upon enforcement of the current regulations. Defendants’ supplemental briefing suggests that the NPRM has bearing on Plaintiff’s
standing. Doc. 49, Supp. Br. at 4. While true that Defendants made good on their promise to issue proposed amendments, the NPRM was published after the filing of this case and therefore has no bearing on whether Plaintiff adequately alleged its standing to sue. See Davis, 554 U.S. at 734. As explained above, the Court must turn a blind eye to the benefit of hindsight when analyzing a plaintiff’s standing to sue. The Court therefore concludes that Plaintiff has established an imminent injury to its First Amendment rights.
2. Actual Injury of Ability to Plan Plaintiff also alleges that it has suffered an actual, present injury in its inability to plan ahead to determine the required scope of its self-insured health plan coverage. Doc. 13, Resp. at 6, 13. Plaintiff insists that the ANPRM “does not relieve the burden and costs of planning and preparing for the current law, nor the present uncertainty that has affected and is affecting the Diocese’s operations” and thus that the ACA imposes a “present impact” on Plaintiff. Id. at 13. Injuries related to planning for future laws or similar legal contingencies are not often sufficient to establish standing. “Mere economic uncertainty affecting the plaintiff’s planning is not sufficient to support premature review.” Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987); Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (dismissing Plaintiff’s alleged “planning insecurity”); Bethlehem Steel Corp. v. U.S. EPA, 536 F.2d 156, 162 (7th Cir. 1976) (“[C]laims of uncertainty in their business and capital planning are not sufficient to warrant our review of an ongoing administrative process.”). Plaintiff cites cases that have found actual injury based on the necessity of preparation, but those cases are distinguishable from and much more compelling than the facts plead here. Further,
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Plaintiff admits that it has not decided whether it will simply pay the fines for violating the ACA rather than provide the required health coverage, whether it will overhaul its organizational structure to qualify as a religious employer, or whether it will provide the mandated coverage despite its religious beliefs. Doc. 1, Compl. ¶¶ 118-122. Although Plaintiff alleges that it “requires time to budget for any such additional expenses” should it choose to pay the fines and penalties and not provide coverage, see id. ¶ 121; doc. 13, Resp. at 14-15, that course of action would not involve the sort of planning hardship that some cases have recognized as adequate to confer standing. See, e.g., PNGTS Shippers’ Group v. FERC, 592 F.3d 132, 138 (D.C. Cir. 2010) (distinguishing Great Lakes Gas Transmission Co. v. FERC, 984 F.2d 426, 431 (D.C. Cir. 1993)). Accordingly, the Court discounts Plaintiff’s alleged preparation injury as a basis for its standing.
3. Injury Related to APA Violations Finally, Plaintiff implicitly pleads injury related to Defendants’ alleged violations of the APA (Counts VII, VIII, and IX of the Complaint). Plaintiff does not detail its standing to bring the APA claims, because Plaintiff maintains that Defendants’ Motion does not challenge standing on those causes of action. Doc. 13, Resp. at 7. The Court disagrees with Plaintiff’s characterization of the scope of Defendant’s Motion. Defendant’s arguments are certainly relevant to Counts VIII and IX because an amendment to the regulations may dispose of any allegations that the definition of “religious employer” is not in harmony with other federal laws or that the “preventive services” includes abortions. In any event, Defendant explicitly certifies that its Motion was intended to apply to all causes of action raised in the pleadings, doc. 16, Reply at 15, so the Court will consider its Motion as applying to the APA claims. “Agency action made reviewable by statute and final agency action for which there is no
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other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. At the time Plaintiff filed its lawsuit, the ACA implementing regulations were final because they were implemented with an effective enforcement date and because no actual proposed amendment had been issued which would contradict the final agency policy. The Court agrees that Plaintiff has standing with respect to the APA claims (Counts VII, VIII, and IX) because the alleged procedural rulemaking violations ultimately led to a preventive care regulation that is claimed to violate several rights held by Plaintiff. As noted above, the Court may not consider the post-pleading NPRM as evidence that the regulations are not final.
In conclusion, the Court determines that, at the time Plaintiff filed this suit in August 2012, Plaintiff had standing to challenge the injury imminent to it upon commencement of the enforcement of final regulations in their current form. B. Ripeness
Given that Plaintiff has established its standing to bring this lawsuit, the Court turns to the government’s alternative argument that the Court lacks subject matter jurisdiction to review the case because the issues raised within the Complaint are not yet ripe. Doc. 9, Mot. at 15. Although Plaintiff protests that the Motion does not apply to several of its claims, see doc. 13, Resp. at 7, the Court has already rejected that argument and applies its ripeness analysis to this entire declaratory action.
The Fifth Circuit has recognized that although “applying the ripeness doctrine in the declaratory judgment context presents a unique challenge . . . , a declaratory judgment action, like any other action, must be ripe in order to be justiciable.” Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir. 2000); Roark & Hardee LP v. City of Austin, 522 F.3d 533, 544 (5th Cir. 2008)
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(“[A] ripeness inquiry is often required when a party is seeking pre-enforcement review of a law or regulation.”); Wright v. Spindletop Films, L.L.C., 830 F. Supp. 2d 280, 284 (S.D. Tex. 2011). A federal court may exercise jurisdiction over an actual controversy, but not premature or speculative issues. Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002). “As a general rule, an actual controversy exists where ‘a substantial controversy of sufficient immediacy and reality exists between parties having adverse legal interests.’” Orix, 212 F.3d at 896 (citing Middle S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986) (internal alteration omitted)). A case is ripe for adjudication if all remaining questions are legal and further factual development is unnecessary. New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 833 F.2d 583, 587 (5th Cir. 1987). A claim is not ripe if it is “rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (citations omitted).
The ripeness and standing inquiries are related in that they both share the constitutional prerequisite of imminent injury. Prestage Farms, Inc. v. Bd. of Supervisors, 205 F.3d 265, 268 n.7 (5th Cir. 2000)(“The justiciability doctrines of ripeness and standing often intersect because the question of whether a plaintiff has suffered an adequate harm is integral to both.”); WesternGeco L.L.C., 776 F. Supp. 2d at 351 (“In determining hardship, the doctrine of ripeness overlaps with the doctrine of standing’s examination of whether a plaintiff has suffered a concrete injury.” (internal quotation marks omitted)). Nonetheless, ripeness and standing serve separate and distinct purposes, and it is possible for claim to be unripe despite the existence of standing to raise that claim. See, e.g., S. Utah Wilderness Alliance v. Palma, No. 11-4094, 2013 U.S. App. LEXIS 464 (10th Cir. Jan. 8, 2013); Wheaton Coll., 703 F.3d at 551 (deciding a similar ACA challenge). When compared with standing:
This kindred doctrine [of ripeness] shifts to a temporal focus, timing review to secure - 25 -

a fit of controversy and judicial resolution. Ripeness considers the fluidity of the events defining the dispute, such as whether the claim rests upon facts yet airborne or sufficiently upon facts that have found ground. It then balances the hardship of withholding decision and the fitness of the case for judicial resolution. Courts work best with historical facts and often must wait until history is determinable. Brooklyn Union Gas Co. v. FERC, 190 F.3d 369, 373 (5th Cir. 1999). Ripeness is thus “an even closer question” than standing, because “[i]ts resolution is informed by additional circumstances that awaiting [further development of the case] may mitigate if not cure.” Id. at 374. In simple terms, “standing is concerned with whether a proper party is bringing suit, while ripeness is concerned with whether the suit is being brought at the proper time.” Texas, 497 F.3d at 496. Accordingly, “[r]ipeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect 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. DOI, 538 U.S. 803, 807 (2003) (citing Abbott Labs., 387 U.S. at 148-49); Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998); Cent. & S.W. Servs. v. EPA, 220 F.3d 683, 690 (5th Cir. 2000). The ripeness doctrine is designed to serve as “a tool that courts may use to enhance the accuracy of their decisions and to avoid becoming embroiled in adjudications that may later turn out to be unnecessary or may require premature examination of, especially, constitutional issues that time may make easier or less controversial.” Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003). “Ripeness doctrine ‘is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’” Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 286 (5th Cir. 2012) (citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n.18
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(1993)); Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U.S. 662 n.2 (2010)(“Ripeness reflects constitutional considerations that implicate Article III limitations on judicial power, as well as prudential reasons for refusing to exercise jurisdiction.” (internal quotation marks omitted)); see Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 88-89 (5th Cir. 2011); Allandale Neighborhood Ass’n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258 (5th Cir. 1988). “[W]hen a court declares that a case is not prudentially ripe, it means that the case will be better decided later not that the case is not a real or concrete dispute affecting cognizable current concerns of the parties.” Connecticut v. Duncan, 612 F.3d 107, 113-14 (2d Cir. 2010) (internal alterations omitted).
While standing to sue is assessed at the time of filing the complaint, “[i]n determining ripeness, a court may consider events that occurred after the filing of the complaint.” Newark Branch, NAACP v. Millburn Township, No. 89-4219, 1990 U.S. Dist. LEXIS 17559, at *11 (D.N.J. Dec. 27, 1990) (citing cases); Am. Motorists Ins. Co. v. United Furnace Co., 876 F.2d 293, 302 n.4 (2d Cir. 1989); Henley v. Herring, 779 F.2d 1553, 1555 (11th Cir. 1986). Courts reviewing decisions on ripeness frequently take into consideration the development of facts after the filing of the complaint and even after a decision issued by a lower court on the matter. See, e.g., Reg’l Rail Reorganization Act Cases, 419 U.S. at 140 (“[S]ince ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court’s decision that must govern.”); Anderson v. Green, 513 U.S. 557, 559 (1995); Buckley v. Valeo, 424 U.S. 1, 114 (1976); Roark & Hardee, 522 F.3d at 544-45.
Two key considerations exist for courts evaluating the ripeness of an action: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”
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New Orleans Pub. Serv., 833 F.2d at 586 (quoting Abbott Labs., 387 U.S. at 149); Choice, 691 F.3d at 715; Placid Oil Co. v. FERC, 666 F.2d 976, 981 (5th Cir. 1982). “Both aspects of the inquiry involve the exercise of judgment, rather than the application of a black-letter rule.” Nat’l Park Hospitality, 538 U.S. at 814 (Stevens, J., concurring).
1. Fitness of Issues for Decision The first prong of the ripeness analysis is whether the issues are fit for judicial review. Texas, 497 F.3d at 496. “A challenge to administrative regulations is fit for review if (1) the questions presented are ‘purely legal ones,’ (2) the challenged regulations constitute ‘final agency action,’ and (3) further factual development would not ‘significantly advance the court’s ability to deal with the legal issues presented.’” Id. at 498-99 (citing Nat’l Park Hospitality, 538 U.S. at 812) (internal alterations omitted). “The baseline question is whether allowing more time for development of events would significantly advance our ability to deal with the legal issues presented or aid us in their resolution.” Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003) (internal quotation marks and alterations omitted). The parties agree that the issues in this case are primarily legal. Doc. 9, Mot. at 19; doc. 13, Resp. at 17. They disagree as to the finality of the regulations. Although the ACA regulations are final in that they are published in the Code of Federal Regulations, courts must be “flexible” and “interpret[] the ‘finality’ element in a pragmatic way.” Abbott Labs., 387 U.S. at 149-50. The ANPRM and temporary safe harbor period could not dissuade the Court from concluding that Plaintiff sufficiently alleged imminent injury, but those facts certainly weigh in favor of finding that the case is not realistically ready for review. The promulgation of the NPRM, however, urges the undeniable conclusion that the case is not ripe. See Ohio Forestry Ass’n, 523 U.S. at 735 (concluding
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that a challenge to an agency plan was not ripe because “the possibility that further consideration will actually occur before the [p]lan is implemented is not theoretical, but real” due to, inter alia, a notice of proposed rulemaking containing proposed amendments to the plan). “It would hardly be sound stewardship of judicial resources to decide this case now . . . given that an already published proposed rule, if enacted, would dispense with the need for such an opinion in a matter of months.” API, 683 F.3d at 387-88 (holding that a challenge to a promulgated rule was not ripe because a proposed amendment to the rule was pending). That the enforcement of the current regulations “may never come to pass augurs against a finding of fitness.” Doe, 323 F.3d at 139 (internal quotation marks omitted); Toca Producers v. FERC, 411 F.3d 262, 266 (D.C. Cir. 2005) (finding that an agency’s action was final and the case presented purely legal issues, but holding that the case was not ripe). The proposed amendments, if adopted, spill into every aspect of the present case and constitute “reversal of course on [the agency’s] part that, if adopted, would necessitate substantively different legal analysis and would likely moot the analysis we could undertake if deciding the case now.” API, 683 F.3d at 388-89; Ohio Forestry Ass’n, 523 U.S. 735-36. The NPRM makes the ripeness analysis here more compelling than that of the other courts reviewing ACA challenges prior to the issuance of an actual, proposed amendment.
Although the issue was not addressed in any detail by the parties, the Court contemplates the distinction between the ripeness of Plaintiff’s substantive claims, which will each evolve with the NPRM, and of Plaintiff’s single procedural claim. In Count VII of its Complaint, Plaintiff alleges that Defendant violated the APA’s notice-and-comment rulemaking procedure when it implemented the regulations and that Plaintiff suffered immediate injury upon its inability to comment. Doc. 1, Compl. at ¶¶ 198-210; doc. 13, Resp. at 8. Although the NPRM may impose a lesser impact on the ripeness
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of the procedural claim compared with the other APA, First Amendment, and RFRA claims, the proposed amendments nonetheless illustrate that the challenged regulations are simply interlocutory. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (holding that an agency action is final where it is not “merely tentative” or of an “interlocutory nature”); Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (concluding that an agency action is final where “its impact is sufficiently direct and immediate,” where it has “a direct effect on day-to-day business,” and where it is not “tentative” (internal quotation marks and alterations omitted)). Finality is required even for claims that an agency failed to follow the notice-and-comment procedures. See, e.g., Anchorage v. United States, 980 F.2d 1320, 1324-25 (9th Cir. 1992). As such, the Court concludes that Plaintiff’s procedural APA claim is also not fit.
In light of the NPRM, and in viewing the fitness of the issues for consideration in a realistic and pragmatic way, the Court concludes that the case is not fit for review at this time.
2. Hardship to Plaintiff Absent Consideration The Court next turns to the issue of whether Plaintiff will suffer hardship if the Court withholds its consideration of the issues raised in its pleadings. “The Supreme Court has found hardship to inhere in legal harms, such as the harmful creation of legal rights or obligations; practical harms on the interests advanced by the party seeking relief; and the harm of being forced to modify one’s behavior in order to avoid future adverse consequences.” Texas, 497 F.3d at 499 (citing Ohio Forestry Ass’n, 523 U.S. at 734 (internal alterations and quotation marks omitted)); Choice, 691 F.3d at 715. In order to constitute a hardship, the impact of the regulations must be “sufficiently direct,” resulting in an “immediate and significant change in the plaintiffs’ conduct.” Abbott Labs., 387 U.S. at 152-53.
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Defendants insist that there will be no hardship to Plaintiff if the case is dismissed on ripeness grounds, because the amendments to the regulations are not yet clear and because Plaintiff may never be subject to the objected-to requirements under the ACA. Defendants suggest that the only hardship “arises from plaintiff’s own desire to prepare for a hypothetical (and unlikely) situation in which the forthcoming amendments to the preventive services coverage regulations do not sufficiently address its religious concerns.” Doc. 9, Mot. at 21. Further, because the temporary enforcement safe harbor currently protects Plaintiff, enforcement of the regulations–in whatever form they may be–will not occur until January 1, 2014 if the safe harbor period is honored. Id. Thus, Defendant avers that Plaintiff will suffer no hardship absent the present resolution of its claims, because it is not yet facing a situation where it will be forced to choose between its religious beliefs or compliance with the regulations. Id.
Plaintiff responds that it will suffer an immediate hardship because it will be unable to sufficiently plan its compliance with the regulations in that it will have inadequate time to make effective decisions with respect to its insurance coverage. Doc. 13, Resp. at 22. Plaintiff declares that this “planning hardship” is real and tips the balance in favor of immediate adjudication. Id. (citing Miller v. Brown, 462 F.3d 312, 321 (4th Cir. 2006); Wis. Pub. Power, Inc. v. FERC, 493 F.3d 239, 263 (D.C. Cir. 2007)).
The Court does not discount the general desire for certainty and long-term planning, but no direct dilemma or Hobson’s choice is faced by Plaintiff now. Plaintiff’s argument “would effectively create a rule where any future event, however remote or speculative, could constitute a burden when a plaintiff claims that it must prepare now for this future contingency.” Cephalon, Inc. v. Sebelius, 796 F. Supp. 2d 212, 218 (D.D.C. 2011). As the Court of Appeals for the D.C. Circuit has explained,
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“[w]ere we to entertain anticipatory challenges pressed by parties facing no imminent threat of adverse agency action, no hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions, we would venture away from the domain of judicial review into a realm more accurately described as judicial preview.” Tenn. Gas Pipeline Co., 736 F.2d at 751. For the same reasons this Court found that the “planning hardship” did not constitute an actual injury under the standing inquiry, the inability to prepare for contingencies is not a hardship that outweighs the unfitness for review of the issues in this case. Importantly, Plaintiff will be able to raise its claims in the future, when a regulation is final or when enforcement is initiated, and Plaintiff has an opportunity to participate in the amendment process now.
Accordingly, because the issues are not prudentially fit for review and because Plaintiff will not suffer hardship should the Court withhold a decision on the merits of this action, the Court concludes that the causes of action in the Complaint are not ripe. Dismissal is the appropriate action where a claim is not ripe. See Ohio Forestry Ass’n, 523 U.S. at 739 (deciding that the lawsuit was not ripe for review and remanding with instructions to dismiss it); Colo. Christian Univ., 2013 U.S. Dist. LEXIS 2677, at *27 (observing no compelling support for the D.C. Circuit’s unique historical practice of holding some unripe cases in abeyance rather than dismissing them).
IV. CONCLUSION For the above-stated reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss for Lack of Jurisdiction (doc. 9). The Complaint is dismissed in its entirety.
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SO ORDERED. SIGNED: February 26, 2013.
_________________________________ JANE J. BOYLE UNITED STATES DISTRICT JUDGE
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U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:12-cv-01589-B

CLOSED,JURY

Roman Catholic Diocese of Dallas v. Sebelius et al Assigned to: Judge Jane J Boyle Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 05/21/2012 Date Terminated: 02/26/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Roman Catholic Diocese of Dallas

represented by Terence Michael Murphy Jones Day PO Box 660623 2727 N Harwood St Dallas, TX 75266-0623 214/220-3939 Fax: 214/969-5100 FAX Email: tmurphy@JonesDay.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Basheer Y Ghorayeb Jones Day 2727 N. Harwood St. Dallas, TX 75201 214-969-5069 Fax: 214-969-5100 Email: bghorayeb@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

James S Teater Jones Day 717 Texas Ste 3300

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V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services
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Ste 3300 Houston, TX 77002 832-239-3777 Fax: 832-239-3600 Email: jsteater@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Katherine Jean Lyons Jones Day 2727 N Harwood St Dallas, TX 75201 214/969-4576 Fax: 214/969-5100 Email: kjlyons@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Tamara Marinkovic Jones Day 2727 N Harwood St Dallas, TX 75201 214/220-3939 Fax: 214/969-5100 FAX Email: tmarinkovic@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Thomas K Schroeter Jones Day 2727 N Harwood St Dallas, TX 75201 214/969-5081 Fax: 214/969-5100 Email: tkschroeter@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
represented by Bradley Philip Humphreys United States Department of Justice Civil Divsiion Federal Programs Branch 20 Massachusetts Ave NW Room 7219 Washington, DC 20530
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Defendant Hilda Solis in her official capacity as Secretary of the U.S. Department of Labor TERMINATED: 02/27/2013 Defendant Timothy Geithner in his official capacity as Secretary of the U.S. Department of Treasury
Defendant U.S. Department of Health and Human Services
Defendant U.S. Department of Labor
Defendant U.S. Department of Treasury
Defendant Seth D Harris Acting Secretary of Labor
V. Movant American Center for Law & Justice, et
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202/514-3367 Fax: 202/616-8470 Email: bradley.p.humphreys@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) TERMINATED: 02/27/2013 LEAD ATTORNEY
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Edward Lawrence White , III

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American Center for Law & Justice 5068 Plymouth Road Ann Arbor, MI 48105 734-662-2984 Fax: 734/302-1758 Email: elwhite3@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 05/21/2012
05/21/2012 05/21/2012 05/21/2012 07/11/2012 07/11/2012 07/12/2012

# Docket Text
1 COMPLAINT WITH JURY DEMAND against All Defendants filed by Roman Catholic Diocese of Dallas. Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. (Filing fee $350; Receipt number 05394590792) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership (Attachments: # 1 Cover Sheet) (Murphy, Terence) (Entered: 05/21/2012)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Roman Catholic Diocese of Dallas. (Murphy, Terence) (Entered: 05/21/2012)
3 New Case Notes: A filing fee has been paid. File to Judge Boyle. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Kaplan). Clerk to provide copy to plaintiff if not received electronically. (tln) (Entered: 05/21/2012)
4 Summons issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, U.S. Attorney, and U.S. Attorney General. (tln) (Entered: 05/21/2012)
5 NOTICE of Attorney Appearance by Bradley Philip Humphreys on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 07/11/2012)
6 MOTION to Extend Time to Respond filed by Timothy Geithner, Roman Catholic Diocese of Dallas, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 07/11/2012)
7 ELECTRONIC ORDER granting 6 Motion to Extend Time. The parties' Joint

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Motion for Extension of Time is hereby GRANTED. Defendants motion to dismiss the Complaint shall be due on or before August 6, 2012; (b) Plaintiff shall file its opposition to such motion on or before August 27, 2012; and (c) Defendants shall file their reply no later than 28 days after Plaintiff files its opposition to the motion to dismiss. (Ordered by Judge Jane J Boyle on 7/12/2012) (chmb) (Entered: 07/12/2012)
8 AFFIDAVIT of Service for Summons and Complaint served on Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury on 5/21/2012. (Attachments: # 1 Exhibit(s) A - Certified Mail Return Receipts) (Murphy, Terence) (Entered: 07/13/2012)
9 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 08/06/2012)
10 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 08/06/2012)
11 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by American Center for Law & Justice, et al.. (White, Edward) (Entered: 08/20/2012)
12 MOTION for Leave to File to Appear as Amici Curiae and to File Amici Curiae Brief in Support of Plaintiff on Behalf of the American Center for Law & Justice and 79 Members of Congress filed by American Center for Law & Justice, et al. with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order, # 2 Amici Curiae Brief of the American Center for Law & Justice and 79 Members of Congress in Support of Plaintiff) (White, Edward) (Entered: 08/20/2012)
13 RESPONSE filed by Roman Catholic Diocese of Dallas re: 9 MOTION to Dismiss for Lack of Jurisdiction (Murphy, Terence) (Entered: 08/27/2012)
14 MOTION for Leave to File Excess Pages filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 09/19/2012)
15 ELECTRONIC ORDER granting 14 Motion for Leave to File. (Ordered by Judge Jane J Boyle on 9/21/2012) (Judge Jane J Boyle) (Entered: 09/21/2012)
16 REPLY filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 9 MOTION to Dismiss for Lack of Jurisdiction (Humphreys, Bradley) (Entered: 09/24/2012)

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17 ORDER denying without prejudice 12 Motion for Leave to File to Appear as Amicus Curiae. (Ordered by Judge Jane J Boyle on 9/28/2012) (ndt) (Entered: 09/28/2012)
18 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) 1 - Notice of Supplemental Authority, # 2 Exhibit(s) 2 - Legatus v. Sebelius, # 3 Proposed Order) (Humphreys, Bradley) (Entered: 11/13/2012)
19 ELECTRONIC ORDER granting 18 Motion: The Court GRANTS Defendant's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 11/14/2012) (chmb) (Entered: 11/14/2012)
20 NOTICE of Supplemental Authority re: 9 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) 1 - Legatus v. Sebelius) (Humphreys, Bradley) (Entered: 11/14/2012)
21 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Exhibit(s) Catholic Diocese of Nashville v. Sebelius, # 3 Exhibit(s) Zubik v. Sebelius, # 4 Proposed Order Proposed Order) (Humphreys, Bradley) (Entered: 11/30/2012)
22 ELECTRONIC ORDER granting 21 Motion: The Court GRANTS Defendant's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 11/30/2012) (chmb) (Entered: 11/30/2012)
23 NOTICE of Supplemental Authority re: 9 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Catholic Diocese of Nashville v. Sebelius, # 2 Exhibit(s) Zubik v. Sebelius) (Humphreys, Bradley) (Entered: 12/04/2012)
24 MOTION for Leave to File Response to Notice of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s) Response to Defendants' Notice of Supplemental Authority, # 2 Proposed Order) (Schroeter, Thomas) (Entered: 12/05/2012)
25 ELECTRONIC ORDER granting 24 Motion: The Court GRANTS Plaintiff's unopposed Motion for Leave to File Response to Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 12/5/2012) (chmb) Modified on 12/5/2012 (jrr). (Entered: 12/05/2012)
26 RESPONSE filed by Roman Catholic Diocese of Dallas re: 20 Notice (Other), (Schroeter, Thomas) (Entered: 12/05/2012)

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27 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s), # 3 Proposed Order) (Ghorayeb, Basheer) Modified on 12/10/2012 (rlw). (Entered: 12/07/2012)
28 Court Request for Recusal: Magistrate Judge David L. Horan enters his recusal. Magistrate Judge Paul D. Stickney chosen by random selection to handle matters that may be referred in this case (gr) (Entered: 12/11/2012)
29 ELECTRONIC ORDER granting 27 Motion: The Court GRANTS Plaintiff's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 12/17/2012) (chmb) (Entered: 12/17/2012)
30 NOTICE of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 12/17/2012)
31 Unopposed MOTION for Leave to File Response to Plaintiffs' Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Response to Plaintiffs Notice of Supplemental Authority, # 2 Proposed Order) (Humphreys, Bradley) (Entered: 12/20/2012)
32 ELECTRONIC ORDER granting 31 Motion: The Court GRANTS Defendants' Unopposed Motion for Leave to File Response to Plaintiff's Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 12/21/2012) (chmb) (Entered: 12/21/2012)
33 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Proposed Order) (Ghorayeb, Basheer) (Entered: 01/02/2013)
34 ELECTRONIC ORDER granting 33 Motion: The Court GRANTS Plaintiff's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 1/2/2013) (chmb) (Entered: 01/02/2013)
35 NOTICE of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 01/02/2013)
36 Unopposed MOTION for Leave to File Response to Plaintiff's Notice of Supplemental Authorityre: Wheaton College v. Sebelius filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Response to Plaintiff's Notice of Supplemental Authority, # 2 Exhibit(s) Proposed Order) (Humphreys, Bradley) (Entered: 01/14/2013)
37 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Notice of Supplemental

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Authority, # 2 Exhibit(s) Proposed Order, # 3 Exhibit(s) Catholic Diocese of Biloxi v. Sebelius, # 4 Exhibit(s) University of Notre Dame v. Sebelius, # 5 Exhibit(s) Catholic Diocese of Peoria v. Sebelius, # 6 Exhibit(s) Colorado Christian University v. Sebelius) (Humphreys, Bradley) (Entered: 01/14/2013)
38 ELECTRONIC ORDER granting 36 Motion: The Court GRANTS the government's unopposed Motion for Leave to File Response to Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 1/15/2013) (chmb) (Entered: 01/15/2013)
39 ELECTRONIC ORDER granting 37 Motion: The Court GRANTS the government's unopposed Motion for Leave to File Response to Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 1/15/2013) (chmb) (Entered: 01/15/2013)
40 RESPONSE filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 35 Notice of Supplemental Authority (Humphreys, Bradley) Modified text on 1/16/2013 (rlw). (Entered: 01/15/2013)
41 NOTICE of Supplemental Authority re: 9 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Catholic Diocese of Biloxi v. Sebelius, # 2 Exhibit(s) University of Notre Dame v. Sebelius, # 3 Exhibit(s) Catholic Diocese of Peoria v. Sebelius, # 4 Exhibit(s) Colorado Christian University v. Sebelius) (Humphreys, Bradley) (Entered: 01/15/2013)
42 ORDER: Directing the Parties to Submit Additional Briefing. (Ordered by Judge Jane J Boyle on 1/28/2013) (Judge Jane J Boyle) (Entered: 01/28/2013)
43 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Proposed Order) (Ghorayeb, Basheer) (Entered: 02/04/2013)
44 ELECTRONIC ORDER granting 43 Motion: The Court GRANTS Plaintiff's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 2/4/2013) (chmb) (Entered: 02/05/2013)
45 NOTICE of Supplemental Authority filed by Roman Catholic Diocese of Dallas (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 02/05/2013)
46 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Proposed Order, # 3 Exhibit(s) Most Reverend Lawrence T. Persico v. Sebelius, # 4 Exhibit(s) Roman Catholic Archbishop of Washington v. Sebelius, # 5 Exhibit(s) Archdiocese of St. Louis v. Sebelius) (Humphreys, Bradley) (Entered: 02/07/2013)
47 ELECTRONIC ORDER granting 46 Motion: The Court GRANTS the government's Unopposed Motion for Leave to File Notice of Supplemental Authority. (Ordered by

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48 NOTICE of Supplemental Authority re: 9 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Most Reverend Lawrence T. Persico v. Sebelius, # 2 Exhibit(s) Roman Catholic Archbishop of Washington v. Sebelius, # 3 Exhibit(s) Archdiocese of St. Louis v. Sebelius) (Humphreys, Bradley) (Entered: 02/07/2013)
49 Brief/Memorandum in Support filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 9 MOTION to Dismiss for Lack of Jurisdiction regarding the Religious Employer Exemption (Humphreys, Bradley) (Entered: 02/08/2013)
50 Brief/Memorandum in Support filed by Roman Catholic Diocese of Dallas re 42 Order Directing Additional Briefing (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 02/08/2013)
51 Unopposed MOTION for Leave to File Response to Plaintiff's Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Response to Plaintiff's Notice of Supplemental Authority, # 2 Proposed Order) (Humphreys, Bradley) (Entered: 02/08/2013)
52 ELECTRONIC ORDER granting 51 Motion: The Court GRANTS the government's Unopposed Motion for Leave to File a Response to Plaintiff's Notice of Supplemental Authority. (Ordered by Judge Jane J Boyle on 2/8/2013) (chmb) (Entered: 02/08/2013)
53 RESPONSE filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 45 Notice (Other) (Humphreys, Bradley) (Entered: 02/08/2013)
54 MEMORANDUM OPINION & ORDER granting in part and denying in part 9 Motion to Dismiss for Lack of Jurisdiction. The Complaint is dismissed in its entirety. (Ordered by Judge Jane J Boyle on 2/26/2013) (skt) (Entered: 02/26/2013)
***Civil Case Terminated per document #54. (skt) (Entered: 02/28/2013)

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