Case 1:11-cv-01989-JEB Document 1 Filed 11/10/11 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE

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100 Belmont-Mt. Holly Rd.

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Belmont, NC 28012;

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Plaintiff,

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v.

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KATHLEEN SEBELIUS, Secretary

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of the United States Department of

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Health and Human Services,

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UNITED STATES DEPARTMENT

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OF HEALTH AND HUMAN

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SERVICES,

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HILDA SOLIS, Secretary of the

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United States Department of Labor,

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UNITED STATES DEPARTMENT

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OF LABOR,

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TIMOTHY GEITHNER, Secretary

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of the United States Department of

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the Treasury, and

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UNITED STATES DEPARTMENT

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OF THE TREASURY,

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Defendants.

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CIVIL ACTION No. COMPLAINT

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COMPLAINT Comes now Plaintiff Belmont Abbey College, by and through its attorneys, and states as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” (colloquially referred to as “Obamacare”) that force thousands of religious organizations to violate their deepest religious beliefs. 2. Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion. Belmont Abbey College is among the many American religious organizations that hold these beliefs. 3. With full knowledge of these beliefs, the government issued an administrative rule (“the Mandate”) that runs roughshod over Belmont Abbey College’s religious beliefs, and the beliefs of millions of other Americans by forcing them to pay for contraception, sterilization, abortion, and related education and counseling. 4. The government’s Mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Belmont Abbey College to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional.
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5. The government’s refusal to accommodate conscience is also highly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the government has provided thousands of exemptions from the Affordable Care Act for other groups, including large corporations such as McDonald’s, often for reasons of commercial convenience. And the government allows a variety of other reasons— from the age of the plan to the size of the employer—to qualify a plan for an exemption. But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms.
6. The Defendants’ actions therefore violate Belmont Abbey College’s right to freedom of religion, as secured by the First Amendment of the United States Constitution and a civil rights statute, the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also violate Belmont Abbey College’s right to the freedom of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
9. Had Belmont Abbey College’s religious beliefs been obscure or unknown, the government’s actions might have been an accident. But because the government acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be interpreted as nothing other than a deliberate attack by the government on t he religious beliefs of Belmont Abbey College and millions of other Americans. The College seeks declaratory and injunctive relief to protect against this attack.
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JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, a nd 42 U .S.C. § 2000bb-1. 11. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this District, and the Defendants are located in this District.
IDENTIFICATION OF PARTIES 12. Plaintiff Belmont Abbey College is a private Benedictine Catholic College in Belmont, North Carolina. Founded by an order of monks in 1876, Belmont Abbey finds its center in Jesus Christ and seeks to provide an educational environment in which the principles of Holy Scripture as taught by the Catholic Church are held up as an ideal. 13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 16. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
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17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
18. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. The College’s Religious Beliefs and Practices Related to Insurance for Contraception,
Sterilization, and Abortion. 20. Belmont Abbey College is a small liberal arts school located outside of Charlotte, North Carolina. It was founded in 1876 by a congregation of Benedictine monks, who built the campus with bricks they formed by hand from the red clay of the North Carolina soil. 21. Today, the monastery operates in the center of campus, and the monks of the Abbey continue to live on the campus of the College and sponsor it. They provide significant financial support for the College, and the Monks also serve on t he Board of Trustees that governs the College. The head of the monastery, Abbot Placid, serves as the College’s Chancellor. 22. Faith is central to the educational mission of Belmont Abbey College. The College describes itself as a “Benedictine Catholic College that finds its center in Jesus Christ. Today, as in years past and in the future, our college is inspired by St. Benedict’s desire ‘that in all things God may be glorified.’” The College adheres to the Apostolic Constitution Ex Corde Ecclesiae of Pope John Paul II, which is the relevant law of the Roman Catholic Church for Catholic colleges and universities.
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23. Belmont Abbey College’s purpose is expressed in its mission statement: “Our mission is to educate students in the liberal arts and sciences so that in all things God may be glorified. In this endeavor, we are guided by the Catholic intellectual tradition and the Benedictine spirit of prayer and learning. Exemplifying Benedictine hospitality, we welcome a diverse body of students and provide them with an education that will enable them to lead lives of integrity, to succeed professionally, to become responsible citizens, and to be a blessing to themselves and others.”
24. Belmont Abbey College holds religious beliefs that include traditional Christian teachings on the sanctity of life. Belmont Abbey College believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Belmont Abbey College therefore believes and teaches that abortion ends a human life and is a grave sin.
25. Belmont Abbey College’s religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Belmont Abbey College believes, in accordance with Pope Paul VI’s 1968 encyclical, Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, the College believes, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, Belmont Abbey College believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.
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26. Belmont Abbey College has approximately 1700 students. 27. Belmont Abbey College has 200 full-time and 105 part-time employees. 28. As part of its commitment to Catholic education, in accordance with Catholic social teaching, Belmont Abbey also promotes the well-being and health of its students and employees. This includes provision of health services and health insurance for its students and employees. 29. Also as a part of this religious commitment, Belmont Abbey provides insurance policies to its full-time faculty and staff, and to its undergraduate students. 30. As part of its religious commitment, Belmont Abbey ensures that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith. In particular, its insurance plans do not cover sterilization, contraception, or abortion. 31. Belmont Abbey College cannot provide health care insurance covering artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs. 32. The College has maintained this stance despite complaints to the EEOC, an EEOC investigation, and a potential lawsuit over the decision not to provide contraceptive coverage. The College believes that any change would be in violation of its Christian faith. 33. Belmont Abbey College’s plan year will begin on January 1, 2013. II. The Affordable Care Act 34. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010 ), collectively known as the “Affordable Care Act.”
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35. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
36. The Act does not apply equally to all insurers. 37. The Act does not apply equally to all individuals. 38. The Act does not apply to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 39. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. 40. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria). 41. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. 42. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely. 43. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 e mployees may do likewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
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44. The Act is not generally applicable because it provides for numerous exemptions from its rules.
45. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
46. The Act creates a system of individualized exemptions. 47. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers (“HHS waivers”). 48. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 49. HHS decides whether to grant waivers based on i ndividualized waiver requests from particular employers and other health insurance plan issuers. 50. Upon information and belief, thousands of HHS waivers have been granted. 51. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 52. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not. 53. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 54. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 55. Defendants’ waiver practices create a system of individualized exemptions.
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III.The Preventive Care Mandate 56. One of the provisions of the Affordable Care Act mandated that health plans “provide
coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directed the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
57. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 F ed. Reg. 41726 (2010).1 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
58. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.
59. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines.
60. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the
1 For ease of reading, references to “HHS” in this Complaint are to all three Departments.
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Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.
61. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
62. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include sterilization procedures and “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
63. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
64. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov /womensguidelines.
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65. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
66. The Mandate went into effect immediately as an “interim final rule.” 67. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 68. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 69. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online. 70. Upon information and belief, over 100,000 c omments were submitted against the Mandate. 71. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a w ar.” She did not state whom she and NARAL Pro-Choice America were warring against. 72. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like the College which have been pointed out in comments. 73. The Mandate requires that the College provide coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law. 74. The Mandate constitutes government-imposed pressure and coercion on t he College to change or violate its religious beliefs.
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75. The Mandate exposes the College to substantial fines for refusal to change or violate its religious beliefs.
76. The Mandate imposes a burden on t he College’s employee and student recruitment efforts by creating uncertainty as to whether the College will be able to offer health insurance beyond 2012.
77. The Mandate places the College at a competitive disadvantage in its efforts to recruit and retain employees and students.
78. The Mandate forces the College to provide contraception, sterilization, and some abortifacient drugs in violation of the College’s religious beliefs.
79. The Mandate forces the College to provide emergency contraception in violation of its religious beliefs.
80. The College has a sincere religious objection to providing coverage for Plan B and ella since it believes those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of the embryo.
81. The College considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
82. The College believes that Plan B and ella can cause the death of the embryo. 83. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 84. Ella can prevent the implantation of a human embryo in the wall of the uterus. 85. Plan B and ella can cause the death of the embryo. 86. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law.
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87. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law.
88. The Mandate forces the College to provide emergency contraception, including Plan B and ella free of charge, regardless of the ability of insured persons to obtain these drugs from other sources.
89. The Mandate forces the College to fund education and counseling concerning contraception, sterilization, and abortion that directly conflicts with the College’s religious beliefs and teachings.
90. The College could not terminate its employees and students from health insurance coverage without violating its religious duty to provide for the health and well-being of its employees and students.
91. The Mandate forces the College to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee and student health insurance coverage.
92. Providing this counseling and education directly undermines the explicit messages and speech of the College.
93. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012.
94. The College has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. The College anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect.
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IV. The Narrow and Discretionary Religious Exemption 95. The Mandate indicates that that the Health Resources and Services Administration
(“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C .F.R. § 147.130(a)(iv)(A).
96. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] 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.” 45 C.F.R. § 147.130(a)(iv)(B).
97. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
98. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
99. Most religious organizations, including the College, have more than one purpose. 100. For most religious organizations, including the College, the inculcation of religious values is only one purpose among others. 101. Many religious organizations, including the College, employ many persons who do not share the religious organization’s beliefs. 102. Many religious organizations, including the College, serve many persons who do not share the religious tenets of the religious organization.
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103. The College reasonably expects that it will be subject to the Mandate despite the existence of the exemption.
104. The College has no conscientious objection to providing preventive services such as mammograms.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 105. The College incorporates by reference all preceding paragraphs. 106. The College’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 107. The Mandate creates government-imposed coercive pressure on the College to change or violate its religious beliefs. 108. The Mandate chills the College’s religious exercise. 109. The Mandate exposes the College to substantial fines for its religious exercise. 110. The Mandate exposes the College to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 111. The Mandate imposes a substantial burden on the College’s religious exercise. 112. The Mandate furthers no compelling governmental interest. 113. The Mandate is not narrowly tailored to any compelling governmental interest. 114. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
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115. The Mandate and Defendants’ threatened enforcement of the Mandate violate the College’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
116. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 117. The College incorporates by reference all preceding paragraphs. 118. The College’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 119. Neither the Affordable Care Act nor the Mandate is neutral. 120. Neither the Affordable Care Act nor the Mandate is generally applicable. 121. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 122. The Mandate furthers no compelling governmental interest. 123. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 124. The Mandate creates government-imposed coercive pressure on the College to change or violate its religious beliefs. 125. The Mandate chills the College’s religious exercise. 126. The Mandate exposes the College to substantial fines for its religious exercise. 127. The Mandate exposes the College to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance.
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128. The Mandate imposes a substantial burden on the College’s religious exercise. 129. The Mandate is not narrowly tailored to any compelling governmental interest. 130. The Mandate and Defendants’ threatened enforcement of the Mandate violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 131. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 132. The College incorporates by reference all preceding paragraphs. 133. The College’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 134. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it imp ossible for the College to comply with its religious beliefs. 135. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of The College and others. 136. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 137. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
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COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 138. The College incorporates by reference all preceding paragraphs. 139. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 140. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 141. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 142. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 143. The College incorporates by reference all preceding paragraphs. 144. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the College. 145. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 146. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate the College’s rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution.
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147. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 148. The College incorporates by reference all preceding paragraphs. 149. The College teaches that contraception, sterilization, and abortion violate its religious beliefs. 150. The Mandate would compel the College to subsidize activities that the College teaches are violations of the College’s religious beliefs. 151. The Mandate would compel the College to provide education and counseling related to contraception, sterilization, and abortion. 152. Defendants’ actions thus violate the College’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 153. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 154. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
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COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 155. The College incorporates by reference all preceding paragraphs. 156. The College teaches that contraception, sterilization, and abortion violate its religious beliefs. 157. The Mandate would compel the College to subsidize activities that the College teaches are violations of the College’s religious beliefs. 158. The Mandate would compel the College to provide education and counseling related to contraception, sterilization, and abortion. 159. Defendants’ actions thus violate the College’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 160. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
161. The College incorporates by reference all preceding paragraphs. 162. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated.
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163. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as the College “primarily” serves and employs members of the same faith as the organization.
164. Defendants’ actions therefore violate the College’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
165. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act
Lack of Good Cause 166. The College incorporates by reference all preceding paragraphs. 167. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute ‘good cause.’ 168. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 169. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the College is entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 170. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
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COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 171. The College incorporates by reference all preceding paragraphs. 172. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the College and similar organizations. 173. Defendants’ explanation for its decision not to exempt the College and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 174. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U .S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 175. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 176. The College incorporates by reference all preceding paragraphs. 177. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 178. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services]
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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 t he basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
179. The Mandate requires issuers, including the College, to provide coverage of all Federal Drug Administration-approved contraceptives.
180. Some FDA-approved contraceptives cause abortions. 181. As set forth above, the Mandate violates RFRA and the First Amendment. 182. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 183. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
184. The College incorporates by reference all preceding paragraphs. 185. The Mandate is contrary to the provisions of the Affordable Care Act. 186. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”— i.e., title I of the Act, which includes the provision dealing with “preventive services”—“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.” 187. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
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188. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
189. The Mandate requires issuers, including the College, to provide coverage of all Federal Drug Administration-approved contraceptives.
190. Some FDA-approved contraceptives cause abortions. 191. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 192. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, the College requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against the College violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against the College violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against the College and other religious organizations that object to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award the College the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
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 Case 1:11-cv-01989-JEB Document 22 Filed 03/20/12 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE,

)

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary

)

of the United States Department of

)

Health and Human Services, UNITED )

STATES DEPARTMENT

)

OF HEALTH AND HUMAN

)

SERVICES, HILDA SOLIS, Secretary of )

the United States Department of Labor, )

UNITED STATES DEPARTMENT OF )

LABOR, TIMOTHY GEITHNER,

)

Secretary of the United States Department )

of the Treasury, and UNITED STATES )

DEPARTMENT OF THE TREASURY, )

)

Defendants.

)

____________________________________)

Civ. Action No. 1:11-cv-01989-JEB FIRST AMENDED COMPLAINT

Case 1:11-cv-01989-JEB Document 22 Filed 03/20/12 Page 2 of 29
FIRST AMENDED COMPLAINT Comes now Plaintiff Belmont Abbey College, by and through its attorneys, and states as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” that force thousands of religious organizations to violate their deepest religious beliefs. 2. Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs forbid it from participating in, providing access to, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion. Belmont Abbey College is among the many American religious organizations that hold these beliefs. 3. With full knowledge of these beliefs, the government issued an administrative rule (“the Mandate”) that runs roughshod over Belmont Abbey College’s religious beliefs, and the beliefs of millions of other Americans by forcing them to provide health insurance coverage for contraception, sterilization, abortion, and related education and counseling. 4. The government’s Mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Belmont Abbey College to facilitate government-dictated speech incompatible with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. 5. The government’s refusal to accommodate conscience is also highly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the government has provided thousands of exemptions from the
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Affordable Care Act for other groups, including large corporations, often for reasons of commercial convenience. And the government allows a variety of other reasons—from the age of the plan to the size of the employer—to qualify a plan for an exemption. But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms.
6. The Defendants’ actions therefore violate Belmont Abbey College’s right to freedom of religion, as secured by the First Amendment of the United States Constitution and a civil rights statute, the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also violate Belmont Abbey College’s right to the freedom of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
9. Had Belmont Abbey College’s religious beliefs been obscure or unknown, the government’s actions might have been an accident. But because the government acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be interpreted as nothing other than a deliberate attack by the government on t he religious beliefs of Belmont Abbey College and millions of other Americans. The College seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to
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render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, a nd 42 U .S.C. § 2000bb-1.
11. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this District, and the Defendants are located in this District.
IDENTIFICATION OF PARTIES 12. Plaintiff Belmont Abbey College is a private Catholic Benedictine College in Belmont, North Carolina. Founded by an order of monks in 1876, Belmont Abbey finds its center in Jesus Christ and seeks to provide an educational environment in which the principles of Holy Scripture as taught by the Catholic Church are held up as an ideal. 13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 16. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only. 17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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18. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. The College’s Religious Beliefs and Practices Related to Insurance for Contraception,
Sterilization, and Abortion. 20. Belmont Abbey College is a small liberal arts school located outside of Charlotte, North Carolina. It was founded in 1876 by a congregation of Benedictine monks, who built the campus with bricks they formed by hand from the red clay of the North Carolina soil. 21. Today, the monastery operates in the center of campus, and the monks of the Abbey continue to live on the campus of the College and sponsor it. They provide significant financial support for the College, and the Monks also serve on t he Board of Trustees that governs the College. The head of the monastery, Abbot Placid, serves as the College’s Chancellor. 22. Faith is central to the educational mission of Belmont Abbey College. The College describes itself as a “Catholic Benedictine College that finds its center in Jesus Christ. Today, as in years past and in the future, our college is inspired by St. Benedict’s desire ‘that in all things God may be glorified.’” The College adheres to the Apostolic Constitution Ex Corde Ecclesiae of Pope John Paul II, which is the relevant law of the Roman Catholic Church for Catholic colleges and universities. 23. Belmont Abbey College’s purpose is expressed in its mission statement: “Our mission is to educate students in the liberal arts and sciences so that in all things God may be glorified. In
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this endeavor, we are guided by the Catholic intellectual tradition and the Benedictine spirit of prayer and learning. Exemplifying Benedictine hospitality, we welcome a diverse body of students and provide them with an education that will enable them to lead lives of integrity, to succeed professionally, to become responsible citizens, and to be a blessing to themselves and others.”
24. Belmont Abbey College holds religious beliefs that include traditional Christian teachings on the sanctity of life. Belmont Abbey College believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Belmont Abbey College therefore believes and teaches that abortion ends a human life and is a grave sin.
25. Belmont Abbey College’s religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Belmont Abbey College believes, in accordance with Pope Paul VI’s 1968 encyclical, Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, the College believes, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, Belmont Abbey College believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.
26. Belmont Abbey College has approximately 1700 students. 27. Belmont Abbey College has 200 full-time and 105 part-time employees.
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28. As part of its commitment to Catholic education, in accordance with Catholic social teaching, Belmont Abbey College also promotes the well-being and health of its students and employees. This includes provision of health services and health insurance for its students and employees.
29. Belmont Abbey College’s religious beliefs prohibit it f rom deliberately providing insurance coverage for drugs, devices, services or procedures inconsistent with its faith—in particular, sterilization, contraception, or abortion.
30. Nor would Belmont Abbey College’s religious beliefs permit it to deliberately provide health insurance that would facilitate access to artificial contraception, sterilization, abortion, or related education and counseling—even if those items are paid for by an insurer and not by Belmont Abbey College.
31. Belmont Abbey College has insisted on this limitation in its insurance policies despite employee complaints to the EEOC, an EEOC investigation, and a potential lawsuit over the decision not to provide contraceptive coverage. The College believes that any change would be in violation of its Christian faith.
32. Belmont Abbey College has likewise expended significant resources working with its insurers to ensure that its health insurance policies are consistent with the College’s religious beliefs. For example, even when an insurance company has expressly agreed to implement exclusions for contraception, sterilization, and abortion, the College has found it necessary to request that policies be corrected and re-issued to ensure that their language properly reflects the exclusions for which the College has bargained.
33. Belmont Abbey College’s plan year will begin on January 1, 2013.
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34. On January 1, 2011, Belmont Abbey College adopted a new employee health insurance plan by changing its insurance carrier from Wellpath to Blue Cross Blue Shield. II. The Affordable Care Act
35. In March 2010, C ongress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010 ), collectively known as the “Affordable Care Act.”
36. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
37. The Act does not apply equally to all insurers. 38. The Act does not apply equally to all individuals. 39. The Act does not apply to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 40. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. 41. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria). 42. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
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43. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
44. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 e mployees may do likewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
45. The Act is not generally applicable because it provides for numerous exemptions from its rules.
46. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
47. The Act creates a system of individualized exemptions. 48. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers (“HHS waivers”). 49. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 50. HHS decides whether to grant waivers based on i ndividualized waiver requests from particular employers and other health insurance plan issuers. 51. Upon information and belief, thousands of HHS waivers have been granted. 52. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 53. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not.
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54. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements.
55. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.
56. Defendants’ waiver practices create a system of individualized exemptions.
III.The Preventive Care Mandate 57. One of the provisions of the Affordable Care Act mandated that health plans “provide
coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directed the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
58. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 F ed. Reg. 41726 (2010).1 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
59. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.

1

For ease of reading, references to “HHS” in this Complaint are to all three Departments.

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60. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines.
61. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.
62. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
63. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include sterilization procedures and “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
64. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
65. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which
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requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov/womensguidelines.
66. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
67. The Mandate went into effect immediately as an “interim final rule.” 68. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 69. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 70. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online. 71. Upon information and belief, over 100,000 c omments were submitted against the Mandate. 72. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a w ar.” She did not state whom she and NARAL Pro-Choice America were warring against. 73. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like Belmont Abbey College which have been pointed out in comments.
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74. The Mandate requires that Belmont Abbey College provide coverage or access to coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law.
75. The Mandate constitutes government-imposed pressure and coercion on Belmont Abbey College to change or violate its religious beliefs.
76. The Mandate exposes Belmont Abbey College to substantial fines for refusal to change or violate its religious beliefs.
77. The Mandate imposes a burden on Belmont Abbey College’s employee and student recruitment efforts by creating uncertainty as to whether the College will be able to offer health insurance beyond 2012.
78. The Mandate places Belmont Abbey College at a competitive disadvantage in its efforts to recruit and retain employees and students.
79. The Mandate forces Belmont Abbey College to provide coverage or access to coverage for contraception, sterilization, and some abortifacient drugs in violation of its religious beliefs.
80. The Mandate forces Belmont Abbey College to provide coverage or access to coverage for emergency contraception in violation of its religious beliefs.
81. Belmont Abbey College has a sincere religious objection to providing coverage or access to coverage for Plan B and ella since it believes those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of the embryo.
82. Belmont Abbey College considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
83. Belmont Abbey College believes that Plan B and ella can cause the death of the embryo.
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84. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 85. Ella can prevent the implantation of a human embryo in the wall of the uterus. 86. Plan B and ella can cause the death of the embryo. 87. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 88. The use of artificial means to cause the death of a h uman embryo constitutes an “abortion” as that term is used in federal law. 89. The Mandate forces Belmont Abbey College to provide insurance coverage or access to insurance coverage for emergency contraception, including Plan B and ella free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 90. The Mandate forces Belmont Abbey College to provide insurance coverage or access to insurance coverage for to fund education and counseling concerning contraception, sterilization, and abortion, which are incompatible with the College’s religious beliefs and teachings. 91. Belmont Abbey College could not terminate its employees and students from health insurance coverage without violating its religious duty to provide for the health and well-being of its employees and students. 92. The Mandate forces Belmont Abbey College to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee and student health insurance coverage. 93. Providing this counseling and education is incompatible and irreconcilable with the explicit messages and speech of Belmont Abbey College. 94. Belmont Abbey College’s current employee health insurance plan was instituted after March 23, 2010.
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95. Belmont Abbey College’s employee health insurance plan is not eligible for grandfather status. See 45 C.F.R. § 147.140(a)(1)(i); 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.715-1251(a)(1)(i).
96. Belmont Abbey College has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. Belmont Abbey College anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect.
IV. The Narrow and Discretionary Religious Exemption 97. The Mandate indicates that that the Health Resources and Services Administration
(“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C .F.R. § 147.130(a)(iv)(A).
98. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] 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.” 45 C.F.R. § 147.130(a)(iv)(B).
99. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
100. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
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101. Most religious organizations, including Belmont Abbey College, have more than one purpose.
102. For most religious organizations, including Belmont Abbey College, the inculcation of religious values is only one purpose among others.
103. Many religious organizations, including Belmont Abbey College, employ many persons who do not share the religious organization’s beliefs.
104. Many religious organizations, including Belmont Abbey College, serve many persons who do not share the religious tenets of the religious organization.
105. Belmont Abbey is not an organization described in Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
106. Belmont Abbey College reasonably expects that it will be subject to the Mandate despite the existence of the exemption.
107. Belmont Abbey College has no conscientious objection to providing preventive services such as mammograms.
108. Belmont Abbey College has no conscientious objection to providing access to drugs typically used for contraception when they are instead used for purely medical reasons unrelated to birth control, such as treating ovarian cysts.
109. On January 20, 2012, D efendant Sebelius announced that there would be no change to the “religious employer” exemption. Instead, she added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, t o comply with the new law,” on t he condition that those employers certify they qualify for the extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of
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contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Serv’s Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited February 7, 2012).
110. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different insurer-based mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
111. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013 ,” provided they meet certain criteria outlined in the guidance bulletin.2

2

See “Guidance on Temporary Enforcement Safe Harbor for Certain Employers, Group Health

Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive

Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of

the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code,”

U.S. DEP’T OF HEALTH & HUMAN SERV’S (Feb. 10, 201 2), at 3, available at

http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last

visited February 17, 2012).

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112. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10, 2012 onward, offered “contraceptive coverage . . . by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization”; and (3) it has provided (for the first plan year beginning on or after August 1, 2012) a notice to plan participants stating that “[t]he organization that sponsors your groups health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing,” and that “[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services.”
113. On February 15, 2012, t he Defendants adopted as final, “without change,” the Mandate and its narrow “religious employers” exemption. 77 Fed. Reg. 8725, 8727.
114. On March 16, 2012, the Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM announced the Defendants’ intention to create an “accommodation” for non-exempt religious organizations under which the Defendants would require a health insurance issuer (or third party administrator) to provide coverage for these drugs and services— without cost sharing and without charge—to employees covered under the organization’s health plan. The ANPRM solicited public comments on structuring the proposed accommodation, and announced the Defendants’ intention to finalize the accommodation by the end of the Safe Harbor period. See https://s3.amazonaws.com/public-inspection.federalregister.gov/201206689.pdf (to be published in the Federal Register on March 21, 2012).
115. The ANPRM also announced Defendants’ intention to apply the Temporary Safe Harbor provision to student insurance plans provided by “nonprofit institutions of higher
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education that meet comparable criteria” to those established for the employer safe harbor. See id. at 14.
116. The ANPRM did not announce any intention to alter the Mandate or its narrow “religious employer” exemption, which were made “final, without change” on February 15, 2012.
117. In sum, Belmont Abbey College will be required to satisfy the Safe Harbor notice requirements outlined in the guidance bulletin by January 1, 2013.
118. It is not clear whether Belmont Abbey College qualifies for the Safe Harbor because the College is willing to provide coverage for drugs typically used for contraceptive purposes when they are instead used for purely medical purposes other than birth control, such as treating ovarian cysts.
119. Even if the Safe Harbor applies, Belmont Abbey College will be subject to enforcement action by Defendants under the Mandate no later than January 1, 2014.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 120. Belmont Abbey College incorporates by reference all preceding paragraphs. 121. The College’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 122. The Mandate creates government-imposed coercive pressure on the College to change or violate its religious beliefs. 123. The Mandate chills the College’s religious exercise.
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124. The Mandate exposes the College to substantial fines for its religious exercise. 125. The Mandate exposes the College to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 126. The Mandate imposes a substantial burden on the College’s religious exercise. 127. The Mandate furthers no compelling governmental interest. 128. The Mandate is not narrowly tailored to any compelling governmental interest. 129. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 130. The Mandate and Defendants’ threatened enforcement of the Mandate violate the College’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 131. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 132. Belmont Abbey College incorporates by reference all preceding paragraphs. 133. The College’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 134. Neither the Affordable Care Act nor the Mandate is neutral. 135. Neither the Affordable Care Act nor the Mandate is generally applicable. 136. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 137. The Mandate furthers no compelling governmental interest.
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138. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 139. The Mandate creates government-imposed coercive pressure on the College to change or violate its religious beliefs. 140. The Mandate chills the College’s religious exercise. 141. The Mandate exposes the College to substantial fines for its religious exercise. 142. The Mandate exposes the College to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 143. The Mandate imposes a substantial burden on the College’s religious exercise. 144. The Mandate is not narrowly tailored to any compelling governmental interest. 145. The Mandate and Defendants’ threatened enforcement of the Mandate violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 146. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 147. Belmont Abbey College incorporates by reference all preceding paragraphs. 148. The College’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for contraception, sterilization, abortion, or related education and counseling. The College’s compliance with these beliefs is a religious exercise. 149. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it imp ossible for the College to comply with its religious beliefs.
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150. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the College and others.
151. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
152. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 153. Belmont Abbey College incorporates by reference all preceding paragraphs. 154. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 155. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 156. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the College’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 157. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 158. Belmont Abbey College incorporates by reference all preceding paragraphs.
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159. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the College.
160. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
161. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate the College’s rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution.
162. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 163. Belmont Abbey College incorporates by reference all preceding paragraphs. 164. The College teaches that contraception, sterilization, and abortion violate its religious beliefs. 165. The Mandate would compel the College to cooperate in activities through its provision of health insurance that the College teaches are violations of the College’s religious beliefs. 166. The Mandate would compel the College to provide, through its provision of health insurance, education and counseling related to contraception, sterilization, and abortion. 167. Defendants’ actions thus violate the College’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 168. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest.
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169. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 170. Belmont Abbey College incorporates by reference all preceding paragraphs. 171. The College teaches that contraception, sterilization, and abortion violate its religious beliefs. 172. The Mandate would compel the College to cooperate in activities, through its provision of health insurance, that the College teaches are violations of the College’s religious beliefs. 173. The Mandate would compel the College to provide, through its provision of health insurance, education and counseling related to contraception, sterilization, and abortion. 174. Defendants’ actions thus violate the College’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 175. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
176. Belmont Abbey College incorporates by reference all preceding paragraphs. 177. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated.
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178. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as the College “primarily” serves and employs members of the same faith as the organization.
179. Defendants’ actions therefore violate the College’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
180. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act
Lack of Good Cause 181. Belmont Abbey College incorporates by reference all preceding paragraphs. 182. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute ‘good cause.’ 183. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 184. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the College is entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 185. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
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COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 186. Belmont Abbey College incorporates by reference all preceding paragraphs. 187. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the College and similar organizations. 188. Defendants’ explanation for its decision not to exempt the College and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 189. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U .S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 190. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 191. Belmont Abbey College incorporates by reference all preceding paragraphs. 192. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 193. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services]
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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.”
194. The Mandate requires issuers, including the College, to provide coverage or access to coverage for all Federal Drug Administration-approved contraceptives.
195. Some FDA-approved contraceptives cause abortions. 196. As set forth above, the Mandate violates RFRA and the First Amendment. 197. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 198. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
199. Belmont Abbey College incorporates by reference all preceding paragraphs. 200. The Mandate is contrary to the provisions of the Affordable Care Act. 201. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”— i.e., title I of the Act, which includes the provision dealing with “preventive services”—“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.” 202. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
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203. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
204. The Mandate requires issuers, including the College, to provide coverage or access to coverage for all Federal Drug Administration-approved contraceptives.
205. Some FDA-approved contraceptives cause abortions. 206. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 207. Absent injunctive and declaratory relief against the Mandate, the College has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Belmont Abbey College requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against the College violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against the College violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against the College and other organizations that object on religious grounds to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award the College the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
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Respectfully submitted this 19th day of March, 2012. s/ Mark L. Rienzi Mark L. Rienzi, D.C. Bar No. 494336 Eric C. Rassbach, D.C. Bar No. 493739 Hannah C. Smith, D.C. Bar No. 480368 Eric N. Kniffin, D.C. Bar No. 999473 THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street N.W., Suite 220 Washington, DC 20007 202.955.0095 (tel.) 202.955.0090 (fax) Attorneys for Plaintiff Belmont Abbey College
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE,
Plaintiff, v.
KATHLEEN SEBELIUS, Secretary of the U.S. Department of Health and Human Services, et al.,
Defendants.

Civil Action No. 11-1989 (JEB)

MEMORANDUM OPINION Under the Patient Protection and Affordable Care Act of 2010, employers are required to offer group health-insurance plans that cover certain forms of preventive care without charging a co-payment. For example, the Act mandates that group health plans pay in full for all FDAapproved contraceptive services sought by plan participants, including sterilization procedures, emergency oral contraception (such as the “morning-after” pill), and counseling for women of reproductive age. T he Departments of Health and Human Services, Treasury, and Labor subsequently issued regulations to that effect, while simultaneously carving out a narrow exemption to the contraceptive-coverage requirement for religious organizations that meet specific criteria. Plaintiff Belmont Abbey is a B enedictine college in North Carolina that shares the Catholic Church’s view that contraception, sterilization, and abortion are “grave sins.” See Am. Compl., ¶¶ 24-25. Belmont alleges that it would violate its strongly held religious beliefs to sponsor any health-insurance plan that pays for these services. Believing it is ineligible for an

1

exemption, Belmont contends that it is required by law to comply with the contraceptivecoverage mandate.
On November 10, 2011, t he Abbey filed the instant suit alleging that this mandate violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. Instead of addressing the merits of such claims, Defendants have now moved to dismiss the action for lack of subject-matter jurisdiction. Because the government has indicated its intention to amend the regulations to better take into account religious objections and because Plaintiff is protected in the interim by a safe-harbor provision, the Court agrees that Belmont’s injury is too speculative to confer standing and that the case is also not ripe for decision. Dismissal without prejudice is thus appropriate.
I. Background A. Statutory and Regulatory Background The Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat.
119, enacted in March 2010, requires group health plans to provide women with “preventive care and screenings” at no charge to the patient. See 42 U.S.C. § 300gg-13(a)(4); see also 155 Cong. Rec. S12019, S12025, S12261, S12271. Specifically, the ACA mandates that non-grandfathered group health plans and health-insurance issuers cover without “impos[ing] any cost sharing requirements … such additional preventive care and screenings [for women] … as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA] for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4).
The Department of Health and Human Services commissioned the Institute of Medicine (IOM), a p rivate health-policy organization, to develop recommendations for the HRSA guidelines. See http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-
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Closing-the-Gaps.aspx. After consulting with a committee of experts, IOM published a report

suggesting specific preventive health measures to be included in the guidelines. Id. Among

other things, IOM proposed that insurance plans be required to cover “[t]he full range of Food

and Drug Administration-approved contraceptive methods, sterilization procedures, and patient

education and counseling for women with reproductive capacity.” Id. at 3; Clinical Preventive

Services for Women: Closing the Gaps at 10, 165. This would include emergency contraceptives

such as Plan B and ulipristal, commonly known as the morning-after pill and the week-after pill,

respectively. See www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm.

HRSA

adopted

IOM’s

recommendations

in

full,

see

http://www.hrsa.gov/womensguidelines, and on August 1, 2011, HHS, the Department of Labor,

and the Department of Treasury promulgated an interim final rule requiring “group health plan[s]

and … he alth insurance issuer[s] offering group or individual insurance coverage [to] provide

benefits for and prohibit the imposition of cost-sharing with respect to” the preventive services

for women included in HRSA’s guidelines. See 76 Fed. Reg. 46621; 45 C.F.R. § 147.130; see

also http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-

Gaps/Action-Taken.aspx. Thus, according to the regulation, all plans and policies, unless

grandfathered or otherwise exempt, must cover contraceptive services for plan years beginning

on or after August 1, 2012. See 76 Fed. Reg. 46621-01.

To account for organizations that might have religious objections to contraception, the

interim final rule authorized HRSA to release certain employers from the requirements

concerning coverage for contraceptives. See 76 Fed. Reg. 46621-01, 46623 (issued on August 1,

2011, and published August 3, 2011); 45 C.F.R. §§ 147.130(a)(1)(iv)(A)-(B). Only employers

that meet all of the following criteria would be eligible for an exemption:

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(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. 45 C.F.R. §§ 147.130(a)(1)(iv)(B)(1)-(4) (HHS); see also 26 C.F.R. § 54.9815 -2713T (Treasury); 29 CFR § 2590.715-2713 (Labor). The IRS code sections in the regulation, furthermore, refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” See Internal Revenue Code 6033(a)(3)(A)(i), (iii). The HRSA used the discretion conferred by the regulation to exempt group health plans sponsored by organizations that satisfy these criteria from the contraceptive-services coverage requirement. See 77 Fed. Reg. 8725-01. The parties agree that Belmont is not exempted under this provision because it employs and serves many individuals who do not share its religious values and because it is not a ch urch and does not otherwise qualify as an organization described in the relevant sections of the IRS Code. Upon issuing the interim final rule, the Departments requested comments, specifically regarding the definition of religious employer in the regulation. Id. at 8726. O ver 200,000 comments were submitted from groups and individuals ranging from religiously affiliated institutions to women’s rights organizations to concerned citizens. Id. Some commenters urged the Departments to expand the definition of religious employer to include religiously affiliated educational institutions, health care organizations, and charities, while others recommended that the exemption be removed from the regulation altogether. Id. at 8726-27.
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After considering these alternatives and others, the Departments decided to leave the exemption unchanged, while also creating a one-year enforcement “safe harbor” for “certain non-exempted, non-profit organizations with religious objections to covering contraceptive services.” Id. at 8728. In guidance issued by HHS on February 10, 2012, the Department stated that, during the safe-harbor period, employers, group health plans, and group health-insurance issuers would not “be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans.” See Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code at 3, available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited July 10, 2012) [“Guidance”]. The safe harbor will remain in effect “until the first plan year that begins on or after August 1, 2013,” and Treasury and Labor have agreed to abide by it as well. Id. at 2-3.
When HHS, Labor, and Treasury issued their final rule in February of 2012, they announced their intention to develop alternative means of providing contraceptive services free of charge to employees of non-exempt, non-grandfathered organizations with religious objections to contraceptive coverage. See 77 Fed. Reg. 8728 (published Feb. 15, 2012) . Specifically, the final regulation stated that the Departments “plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan
5

participants (and their beneficiaries) who desire it, with no cost-sharing.” Id. The Departments indicated that they would work with stakeholders to propose and finalize this policy before the expiration of the enforcement safe harbor. Id. at 8728-29.
Indeed, on March 21, 2012, t he Departments issued an Advance Notice of Proposed Rulemaking (ANPRM) formally declaring their intention to amend the final regulations and soliciting input from interested parties and the public. The ANPRM presents questions and ideas about how to “accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services,” while “assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing.” 77 Fed. Reg. 16503. After the 90-day comment period on t he ANPRM, the Departments will publish a Notice of Proposed Rulemaking, which will afford the public another opportunity for comment before amended final regulations are issued. Id.
B. Belmont Abbey College According to its Amended Complaint, Belmont Abbey College is a private Catholic college founded by Benedictine monks in North Carolina in 1876. See Am. Compl., ¶ 12. The teachings of the Catholic Church remain central to its purpose. Id., ¶ 23. The College’s mission statement is inspired by St. Benedict’s desire “‘that in all things God may be glorified,’” and Benedictine monks not only serve on t he College’s Board of Trustees but also provide the institution with significant financial support. Id., ¶¶ 21-22. In addition, Belmont adheres to the law of the Roman Catholic Church for Catholic colleges and universities. Id., ¶ 22. The College shares the Catholic Church’s view that all human life, having been created in the image and likeness of God, is sacred from the time of conception. Id., ¶ 24. In accordance with this view, the College “teaches that abortion ends a human life and is a grave sin.” Id. It likewise believes that one of the central purposes of human sexuality is “the generation of new
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lives.” Id., ¶ 25. Based on this premise, it concludes that “‘any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or means’ – including contraception and sterilization – is a g rave sin.” Id. Plaintiff claims that it would therefore violate Belmont’s religious beliefs to provide health insurance that would cover or facilitate access to “contraception, sterilization, abortion or related education and counseling….” Id., ¶¶ 28-30.
C. Procedural History On November 10, 2011, Belmont filed suit against the United States and the three Departments responsible for the contraceptive-services regulation – i.e., HHS, Labor, and Treasury (and their Secretaries). The suit challenges the ACA and the administrative regulations requiring insurance coverage for contraceptives as violative of the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. Id., ¶¶ 105-92. After the Complaint had been filed, Defendants finalized the interim rule, issued guidance on a temporary-enforcement safe harbor, and announced their plans to amend the regulation to accommodate religious organizations’ objections to providing insurance coverage for contraceptives. See Def. Mot. to Dismiss (ECF No. 15) at 6-7. Defendants subsequently moved to dismiss for lack of jurisdiction, contending that Plaintiff lacked standing and that the case was not ripe for judicial review. Id. at 11-20. Plaintiff opposed and separately sought leave to file an Amended Complaint in light of the developments that had occurred since it brought suit. ECF Nos. 20-21. The Court permitted Plaintiff to file an Amended Complaint and, accordingly, denied Defendants’ Motion to Dismiss without prejudice as moot. See Minute Order of March 20, 2012. On April 5, 2012, Defendants renewed their Motion, again seeking dismissal on standing and ripeness grounds. The Court turns to that Motion now.
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II. Legal Standard In evaluating a motion to dismiss for lack of standing or ripeness under Rule 12(b)(1),
the Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. U nited Air Lines, Inc., 216 F.3d 1111, 1113 ( D.C. Cir. 2000) (quoting Schuler v. U nited States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F .3d 1249, 1 253 (D.C. Cir. 2005). T he Court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n, 456 F .3d 178, 193 ( D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 ( D.D.C. 2001). “For this reason, ‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction ….” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F .3d 359, 366 ( D.C. Cir. 2005) (“given the present posture of this case — a
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dismissal under Rule 12(b)(1) on ripeness grounds — the court may consider materials outside the pleadings”); Herbert v. Nat’l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
III. Analysis Defendants contend that this Court does not have jurisdiction to decide Plaintiff’s claims
because (1) Plaintiff has not alleged an “imminent injury” and therefore lacks standing, and (2) the regulation Belmont seeks to invalidate may well be amended to address the concerns of Plaintiff and similarly situated organizations before it is enforced, thereby absolving the need for judicial intervention and rendering the matter unripe. The Court will evaluate these arguments in turn.
A. Standing Defendants first seek to dismiss Plaintiff’s Amended Complaint on t he ground that Belmont lacks standing, thereby depriving the Court of subject-matter jurisdiction. Article III of the Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Allen v. W right, 468 U.S. 737, 750 ( 1984) (discussing case-or-controversy requirement). “This limitation is no mere formality: it ‘defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.’” Dominguez v. U AL Corp., 666 F .3d 1359, 1361 ( D.C. Cir. 2012) (quoting Allen, 468 U.S. at 750). Because “standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan, 504 U.S. at 560, finding that a plaintiff has standing is a n ecessary “predicate to any exercise of [the Court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996). The doctrine of standing “requires federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation
9

of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U .S. 488, 493 (2009) (emphasis in original) (citing Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). At its “irreducible constitutional minimum,” the doctrine requires a plaintiff to prove three elements: (1) a concrete and imminent injury-in-fact, (2) a c ausal relationship between the injury and defendants’ challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61. Organizations suing on t heir own behalf, like individuals, must also satisfy these three requirements. See Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982)).
Here, Defendants contend that Plaintiff fails the first prong – namely, it has not alleged an injury sufficient to support standing. See Mot. at 12. To satisfy the “injury-in-fact” requirement, a plaintiff must establish that it has suffered (or will suffer) “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotations omitted). Put another way, a threatened injury must be “certainly impending” to confer standing; harm that is possible or even likely will not suffice. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
Defendants maintain that Plaintiff has failed to meet this standard for three reasons. First, the preventive-services regulation does not apply to plans that are “grandfathered,” and, according to Defendants’ Motion, Plaintiff has not sufficiently alleged that it is ineligible for grandfather status. See Mot. at 13-14. Second, even if Plaintiff’s plan is not grandfathered, Defendants argue that the safe-harbor provision renders the threatened harm from the contraceptive-coverage regulation too remote to constitute “imminent” injury. See Mot. at 15. Finally, Defendants contend that any injury from enforcement of the provision after the safe
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harbor expires is purely speculative, as they have declared their intention to amend the rule before that time in order to accommodate religious organizations’ concerns about funding or facilitating access to contraception through their health-insurance plans. Id. at 16-17.
1. Grandfather Status The contraceptive-coverage provision does not apply to health plans that are grandfathered. See 26 C.F.R. § 54.9815-1251T(c)(1); 42 U.S.C. § 18011; see also Guidance at 1. A health insurance plan is “grandfathered” if at least one person was enrolled on March 23, 2010, and the plan has continuously covered at least one individual since that date. See 42 U.S.C. § 18011( a)(2); 26 C.F.R. §§ 54.9815-1251T(a), (g); 45 C.F.R. §§ 147.140(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g). To remain grandfathered, the plan must also provide annual notice of such status. Id. Plaintiff disputes Defendants’ initial contention that it has not adequately pled its ineligibility for grandfather status. In asserting that the plan was not grandfathered, Am. Compl., ¶¶ 94-95, the Amended Complaint alleges that Belmont Abbey offered a “new … pl an” beginning in 2011. Id., ¶ 34. While Defendants correctly point out that a plan “does not cease to be grandfathered … merely because the plan (or its sponsor) enters into a new policy, certificate, or contract of insurance after March 23, 2010,” 45 C .F.R. § 147.14 0(a)(1)(i), that is not what Plaintiff alleges here. Rather, the Complaint states that Belmont Abbey adopted a new plan – that is, a plan that “did not exist – and therefore did not cover anyone – on March 23, 2010.” Opp. at 11 (emphasis in original). Assuming that to be true, as the Court must when deciding a Motion to Dismiss, the plan could not be grandfathered. See Jenkins v. M cKeithen, 395 U .S. 411, 421-22 (1969) (when ruling on m otion to dismiss for lack of standing, court must accept material allegations in Complaint as true and construe them in opposing party’s favor).
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While Defendants maintain that the mere allegation that Plaintiff “adopted a n ew plan” does not sufficiently plead ineligibility for grandfather status, they concede in their Reply that the materials Plaintiff submitted with its Opposition “plausibly suggest that [P]laintiff’s plan has not satisfied the disclosure requirements for maintaining grandfather status.” See Reply at 2 n.1 (emphasis in original). They have, accordingly, decided not to press the argument that Plaintiff’s plan may be grandfathered at this stage. Id.
In light of the foregoing, the Court concludes that Plaintiff has sufficiently alleged that its plan is ineligible for grandfather status. Since Plaintiff does not qualify for the religiousemployer exemption either, see 45 C.F.R. §§ 147.130(a)(1)(iv)(B)(1)-(4), it is bound b y the interim final rule requiring group health plans to fully cover the cost of contraception unless some other exemption applies.
2. Enforcement Safe Harbor Defendants contend that, even if its plan is not grandfathered, Belmont Abbey is protected by the safe-harbor provision; as it would not be subject to enforcement before January 1, 2014, any threatened injury is “too remote temporally” to be considered “imminent.” Mot. at 15. Belmont has two responses to this line of argument. First, it suggests that it may in fact be ineligible for the safe harbor. Opp. at 13. To receive the temporary exemption from enforcement, an organization must certify that “contraceptive coverage has not been provided by the plan” on or after February 10, 2012. HHS Bulletin at 3, 6. Because Plaintiff does not object to covering prescriptions ordinarily used for contraception when they are employed for other purposes, it contends that it may not be able to make the requisite certification. Opp. at 13. The regulations make clear, however, that this would not disqualify an organization from the protections of the safe harbor. See 77 Fed. Reg. 16501, 16504 (indicating that organizations that
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cover some contraceptives may qualify for the safe harbor). The Court, consequently, finds no basis to conclude that Plaintiff would be ineligible for the benefits of the safe harbor.
Second, even if Plaintiff is protected by the safe harbor, it argues that the injury is sufficiently imminent to satisfy the standing requirements. In its view, the safe harbor merely delays enforcement by one year; it does not (in and of itself) reduce the certainty of the impending injury. See HHS Bulletin at 2-3; see also Regional Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974) (when “the inevitability of the operation of a statute against certain individuals is patent,” “it is irrelevant … that there will be a time delay before the disputed provisions will come into effect”). Under the interim final rule, Plaintiff would be subject to enforcement beginning in January 2014. See HHS Bulletin at 3; Am. Compl., ¶¶ 33, 119 (stating that Plaintiff’s plan year begins on January 1); see also Mot. at 15. That looming deadline, it contends, is not too remote. See Opp. at 13-15.
The Court agrees. In another ACA case presenting a nearly identical question of whether the plaintiffs’ alleged injuries were “imminent” for standing purposes, the Eleventh Circuit held that an injury that would not occur for over two years was sufficient for standing. See Florida ex rel. Atty. Gen., et al. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235, 1243 ( 11th Cir. 2011) (holding that at least one plaintiff had standing to challenge provisions of ACA that would not take effect until January 1, 2014), reversed in part on other grounds by Nat’l Fed’n of Indep. Bus. et al. v. Sebelius, 132 S. Ct. 2566 (June 28, 2012). In fact, the defendants there – which are the same parties being sued here – conceded on a ppeal that the individual plaintiffs had standing to contest the constitutionality of the ACA’s individual mandate. Florida ex rel. Atty. Gen., 648 F.3d at 1243. (“Notably, the government does not contest the standing of the individual plaintiffs or of the NFIB to challenge the individual mandate.”). Since standing is a
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jurisdictional requirement that cannot be waived by the parties, see United States v. Hays, 515 U.S. 737, 742 ( 1995), this concession could not properly have been the basis for the Court’s finding that the claims were justiciable. Rather, the court independently concluded that the allegations of injury satisfied the injury-in-fact requirement even though the challenged provisions would not take effect until 2014. See Florida ex rel. Atty. Gen., 648 F.3d at 1243.
The time until the rule may be enforced in this case, furthermore, is short in comparison with other cases in which courts have found standing. The Supreme Court has allowed plaintiffs to proceed when challenging laws that would not take effect for three and even six years (or thereabouts). See New York v. United States, 505 U.S. 144, 153-54 (1992); Pierce v. Soc’y of Sisters, 268 U .S. 510, 530, 536 (1925). Thus, postponing enforcement of the challenged regulation against Plaintiff until January 2014 does not defeat standing here. See Seven-Sky v. Holder, 661 F.3d 1, 4 (D.C. Cir. 2011) (addressing validity of ACA provision that becomes effective in January 2014), abrogated by Nat’l Fed’n of Indep. Bus., 132 S. Ct. 2566.
Because the Court holds that the temporary-enforcement safe harbor does not render the alleged injury too remote to constitute an injury, it need not reach Plaintiff’s alternative argument that the safe harbor cannot destroy standing because it is not binding and could be abandoned at any point. See Opp. at 15-16.
3. Advance Notice of Proposed Rulemaking While the imminent end of the safe harbor provides Plaintiff with an injury, this does not terminate the analysis. Defendants argue that the alleged injury is nonetheless too speculative to confer standing given the government’s clear intention to amend the regulations before the safe harbor lapses in order to accommodate organizations with religious objections to contraception. They are correct. The “underlying purpose of the imminence requirement is to ensure that the
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court in which suit is brought does not render an advisory opinion in ‘a case in which no injury would have occurred at all.’” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). This is precisely the type of case where concerns about premature judicial intervention come into play.
Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing. Contrary to Plaintiff’s assertions, however, Defendants have done more than simply “open another docket to propose addressing related matters.” O pp. at 18 (citing Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) (“[A]gencies cannot avoid judicial review of their final actions merely because they have opened another docket that may address some related matters.”)). They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. See 77 Fed. Reg. 8 725, 8728, 16502-03. Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM. See 77 Fed. Reg. 16503. The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule – indeed, it has steadily pursued that course – and it is entitled to a presumption that it acts in good faith. See Sossamon v. Lone Star State of Texas, 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.”); see also Comcast Corp. v. F.C.C., 526 F.3d 763, 769 n.2 (D.C. Cir. 2008) (“We must presume an agency acts in good faith….”) (citing Thomas v. Baker, 925 F.2d 1523, 1525 (D.C. Cir. 1991)); Adair v. England, 183 F. Supp. 2d 31, 60 (D.D.C. 2002) (“government officials are presumed to act in good faith .... [P]laintiff must present ‘well-
15

nigh irrefragable proof’ of bad faith or bias on the part of governmental officials in order to overcome this presumption”) (internal quotations and citation omitted).
Because an amendment to the final rule that may vitiate the threatened injury is not only promised but underway, the injuries alleged by Plaintiff are not “certainly impending.” See Whitmore v. Arkansas, 495 U.S. at 158. Plaintiff consequently lacks standing to bring its claims at this juncture, and the Court must thus dismiss the case for lack of subject-matter jurisdiction.
B. Ripeness Defendants likewise contend that the claims in the Amended Complaint are not ripe for adjudication. Although the Court need not address this argument – having already decided that Plaintiff has not satisfied the standing requirements – it is nevertheless worthwhile to do so as ripeness implicates many of the same concerns underlying the Court’s standing analysis. See Am. Petroleum Inst. v. Envtl. Prot. Agency, --- F.3d ----, 2012 W L 2053572, at *3 (D.C. Cir., June 8, 2012) (noting that part of ripeness doctrine is “subsumed into the Article III requirement of standing”); Wyo. Outdoor Council v. U .S. Forest Serv., 165 F .3d 43, 4 8 (D.C. Cir. 1999) (ripeness doctrine not always clearly separable from standing). Indeed, many of Plaintiff’s arguments with respect to standing rely on cases addressing ripeness. See, e.g., Opp. at 17 (citing Am. Petroleum Inst. v. EPA, 906 F .2d 729, 739-40 (D.C. Cir. 1990), in its standing argument for proposition that possibility of unforeseen amendments does not render a challenge unripe), id. at 15 (arguing for standing based on case that found claim ripe under allegedly similar circumstances). At its foundation, ripeness is about whether a federal court “can or should decide a case.” Am. Petroleum Inst., 2012 WL 2053572, at *3. The doctrine’s purpose is “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
16

interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). The requirement that a claim be ripe derives both from Article III limits on justiciability and from prudential considerations that counsel against exercising jurisdiction. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57 n.18 (1993); see also Full Value Advisors, LLC v. S.E.C., 633 F.3d 1101, 1106 (D.C. Cir. 2011) (“Because of the prudential considerations which innervate the ripeness doctrine, at times, we ‘dismiss[ ] even if there is not a constitutional bar to the exercise of our jurisdiction.’”) (quoting Wyo. Outdoor Council, 165 F.3d at 48). It “ensures that Article III courts make decisions only when they have to, and then, only once.” Am. Petroleum Inst., 2012 W L 2053572, at *4 (citing Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir. 2007); Pub. Citizen Health Research Grp. v. FDA, 740 F.2d 21, 30–31 (D.C. Cir. 1984)).
To assess whether a claim is ripe, courts consider two factors: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories, 387 U.S. at 149; see also Pfizer Inc. v. Shalala, 182 F.3d 975, 978 (D.C. Cir. 1999). These twin prongs seek to “‘balance [the court’s] interest in deciding the issue in a more concrete setting against the hardship to the parties caused by delaying review.’” Atlantic Richfield Co. v. United States Dep't of Energy, 769 F.2d 771, 783 (D.C. Cir. 1984) (citation omitted). If a court determines that a claim is fit for judicial resolution, the “[lack of] hardship cannot tip the balance against judicial review.” Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 440 F.3d 459, 465 ( D.C. Cir. 2005) (citation omitted). A showing of “hardship to the parties” can, however, “outweigh[] the competing institutional interests in deferring review.” Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).
1. Fitness
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In a review of agency action, the requirement that a claim be fit for judicial resolution “is primarily meant to protect ‘the agency's interest in crystallizing its policy before that policy is subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.’” Am. Petroleum Inst., 2012 WL 2053572, at *4 (quoting Wyo. Outdoor Council, 165 F.3d at 49 (internal quotation marks omitted)). A claim satisfies the fitness requirement only if it is “essentially legal” and “sufficiently final.” International Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 249 (D.C. Cir. 1986).
The Court will consider the finality prong first, as it is at the heart of the parties’ dispute. In evaluating that criterion, the Court must decide whether the regulations requiring non-exempt, non-grandfathered plans to cover the full range of contraceptive services in the HRSA guidelines are final enough for the Court to address the merits of Plaintiff’s challenge. While the Court is mindful that the Supreme Court has instructed lower courts to apply the finality requirement in a “flexible” and “pragmatic” manner, see Abbott Laboratories, 387 U.S. at 149-50, it nevertheless recognizes that courts should “decline to review ‘tentative’ agency positions.” Am. Petroleum Inst., 2012 W L 2053572, a t *4. T o do so would “‘severely compromise[] the interests’ the ripeness doctrine protects,” including the interests in affording an agency the “‘opportunity to apply its expertise and to correct errors’” and in conserving judicial resources. Id. (quoting Pub. Citizen Health Research, 740 F.2d at 31).
The Court’s task, therefore, is to determine whether the ANPRM in conjunction with Defendants’ promises to issue amended regulations render the “final” rules tentative for purposes of the ripeness inquiry. The D.C. Circuit recently had occasion to assess ripeness under a similar set of facts. In American Petroleum Institute, Plaintiff, a trade association, sought judicial
18

review of a “final rule” issued by the EPA in 2008 deregulating “hazardous secondary materials.” See 2012 WL 2053572, at *1-2. In issuing that rule, the EPA explicitly declined to deregulate a category of materials called spent refinery catalysts, electing instead to “address the catalysts in a separate proposed rulemaking.” Id. at *2. The American Petroleum Institute filed a suit challenging that decision, and in July 2011, shortly after the parties had fully briefed the merits of the case, the EPA published a notice of proposed rulemaking that would revise the 2008 rule and deregulate the catalysts. If the proposed rule were finalized without revision, the case would “go[] away without the need for judicial review.” Id. at *4.
The D.C. Circuit concluded that the case was not ripe because, although the 2008 regulation was a “final rule,” the EPA’s position on the policy being challenged was tentative. See id. Central to the Court’s analysis was the fact that the proposed rulemaking might obviate the need for judicial review. See id. (“In light of the July 2011 proposed rule, though, ‘[i]f we do not decide [the issue] now, we may never need to.’”) (quoting Nat'l Treasury Emps. Union v. U.S., 101 F.3d 1423, 1431 (D.C. Cir. 1996)); see also Devia v. NRC, 492 F.3d 421, 424 ( D.C. Cir. 2007) (“when an agency decision may never have its effects felt in a concrete way by the challenging parties, the prospect of entangling ourselves in a challenge to such a decision is an element of the fitness determination as well”) (internal citation and quotation marks omitted). The Court also emphasized that the rulemaking process would provide the plaintiff with “a chance to convince the EPA to change its mind.” Id. Given that the Court could not know what shape the final rule would take, it determined that it would be best to withhold review until the matter was settled. Id. If the new rulemaking did not ultimately resolve the plaintiff’s claims, the Court reasoned that it would at least “narrow the legal issues involved … and provide a more final and concrete setting for deciding any issues left on the table.” Id.
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The same rationale applies in this case. J ust as in American Petroleum Institute, the Court has before it a challenge to final regulations that Defendants have promised to amend. Defendants have taken the first step toward amending the rules by issuing an ANPRM. While the Advance Notice of Proposed Rulemaking is a more preliminary step than the Notice of Proposed Rulemaking that was issued in American Petroleum Institute, they serve the same purpose in this ripeness inquiry: both announce the agency’s intention to modify an existing regulation and invite public comments that will ultimately inform the drafting of the final amendment. See 77 Fed. Reg. 16503; Am. Petroleum Inst., 2012 W L 2053572, at *2-3. The Advance Notice simply allows the agency to receive comments from interested parties before publishing a proposed rule. See 77 Fed. Reg. 16507-08 (stating that the ANPRM’s comment period is designed to “inform the notice of proposed rulemaking” and that “[t]he subsequent notice of proposed rulemaking will also include a public comment period”). The Court thus concludes – for the same reasons offered in American Petroleum – that the Departments’ position on the policy at issue remains indeterminate. Because “the interest in postponing review is powerful when the agency position is tentative,” Ciba-Geigy Corp v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986), the Court holds that the challenged rule is not “sufficiently final” to satisfy the fitness prong of the ripeness inquiry. See also Full Value Advisors, 633 F.3d at 1107 (“A claim is not ripe where the ‘possibility that further consideration will actually occur before [implementation] is not theoretical, but real.’”) (quoting Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998)).
Plaintiff maintains that its claims are ripe for judicial review because, even if the proposed amendment is finalized, Plaintiff will not be able to comply without violating its religious beliefs about contraception. See Opp. at 18. This argument assumes, however, that a
20

particular approach described in the ANPRM – which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization's plan with no cost sharing,” see 77 Fed. Reg. 16503 – will make it into the final rule. Such an assumption is speculative. T he ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on t he options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.
Plaintiff argues, in addition, that if the Court allows a Notice of Proposed Rulemaking to render an action for administrative review non-justiciable, agencies could avoid judicial review simply by issuing NPRs whenever a legal challenge is brought against the agency. Opp. at 1718. T he D.C. Circuit also addressed that concern in American Petroleum. See 2012 WL 2053572, at *5. While acknowledging the potential for agencies to abuse the notice process, the court found that that risk was not present in that case because the EPA’s proposed rule was “clearly not some non-substantive, thinly veiled attempt to evade review.” Id. The Court also emphasized that the proposed rulemaking in that case had a “definite end date” (imposed by conditions of a related settlement agreement), thereby preventing the agency from averting judicial scrutiny indefinitely.
While the circumstances are slightly less favorable to the agency here, they nevertheless counsel the same result. The ideas and questions raised in the ANPRM appear to be the product
21

of significant research and deliberation, see 77 Fed. Reg. 16501-01 (citing findings of actuaries and experts and referencing consultations with interested parties), and although there is not an externally imposed deadline on the rulemaking as there was in American Petroleum, the expiration of the enforcement safe harbor operates in a s imilar manner. Even though the safe harbor’s end date was set by the agency, the agency has published it in the Federal Register and has formally committed to amending the rule before the safe harbor expires, thereby creating external accountability for the agency’s self-imposed deadline. See 77 Fed. Reg. 8728-29, 16503. If the agency fails to amend the exemption from the contraceptive-coverage provision by the time the safe harbor lapses, Plaintiff will be free to renew its challenge to the rule at that time. The Court, therefore, finds that the agency’s position is not sufficiently final to render the regulation “fit” for judicial review.
Because prudential considerations counsel against reaching the merits of Plaintiff’s claims at this stage, the Court need not evaluate whether the suit presents a “p urely legal” question. T his Circuit has previously held that courts should refrain from “intervening into matters that may best be reviewed at another time or in another setting,” even if the issue presented is “purely legal” and “otherwise ‘fit for review.’” See Full Value Advisors, 633 F.3d at 1106 ( quoting Louisiana Envtl. Action Network v. B rowner, 87 F.3d 1379, 1382 ( D.C. Cir. 1996) (internal quotation and citation omitted)). Judicial restraint is particularly warranted where, as here, “the issue is one of constitutional import” and its “‘uncertain nature … might affect a court’s ability to decide intelligently.” Id. (citing Connecticut v. Duncan, 612 F.3d 107, 114 (2d Cir. 2010); La. Envtl. Action Network, 87 F.3d at 1382); see also Am. Compl., ¶¶ 13280 (raising First Amendment claims).
2. Hardship
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The only remaining question then is whether Plaintiff faces any hardship that would outweigh the Court’s interest in deferring review until the agency’s position on exemptions to the contraceptive-coverage requirement is settled. See Vill. of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir. 2004) (courts must consider the “‘hardship to the parties of withholding court consideration’”) (quoting Abbott Laboratories, 387 U.S. at 149); see also Blanchette v. C onn. Gen. Ins. Corps., 419 U.S. 102, 138 ( 1974); Harris v. FAA, 353 F.3d 1006, 1011–12 (D.C. Cir. 2004). In evaluating this consideration, courts are not to look to “direct hardship, but rather [to] whether postponing judicial review would impose an undue burden on [the parties] or would benefit the court.” Harris, 353 F.3d at 1012 (quotation marks omitted); see also Bensenville, 376 F.3d at 1120; AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C. Cir. 2003).
Plaintiff contends that postponing judicial review will impose a hardship because it must immediately begin planning for the possibility that it will be forced to give up i ts health insurance plan in 2014 (on account of its religious beliefs) and pay government fines. See Opp. at 28 (citing Am. Compl., ¶¶ 3, 76, 92) . Costs stemming from Plaintiff’s desire to prepare for contingencies are not sufficient, however, to constitute a hardship for purposes of the ripeness inquiry – particularly when the agency’s promises and actions suggest the situation Plaintiff fears may not occur. See Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987); Tennessee Gas Pipeline Co. v. F ERC, 736 F.2d 747, 751 ( D.C. Cir. 1984) (plaintiff’s “planning insecurity” insufficient to establish hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162 ( 7th Cir. 1976) (“[C]laims of uncertainty in [plaintiff’s] business and capital planning are not sufficient to warrant [] review of an ongoing administrative process.”).
Plaintiff argues, in addition, that a delay in judicial review puts it a t risk of third-party lawsuits, which the safe harbor does not bar. See Opp. at 28-29. W hile that may be true, the
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theoretical possibility of future hardship arising from the Court’s decision to withhold review until the agency’s position is settled does not overcome the finding that the case is not yet “fit” for judicial resolution. See Salvation Army v. Dep’t of Cmty. Affairs of New Jersey, 919 F.2d 183, 193 ( 3d Cir. 1990) (“theoretical possibility of a suit against [plaintiff] by a program beneficiary” insufficient to establish jurisdiction).
At the end of the day, the Court offers no opi nion on t he merits of the current contraception-coverage regulations or any proposed future ones. If Plaintiff is displeased by the ultimate regulations, it may certainly renew its suit at that time. All the Court holds here is that Belmont has no basis to proceed now.
IV. Conclusion For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendants’ Motion to Dismiss.

Date: July 18, 2012

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

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 Case 1:11-cv-01989-JEB Document 28 Filed 07/18/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE,
Plaintiff, v.
KATHLEEN SEBELIUS, Secretary of the U.S. Department of Health and Human Services, et al.,
Defendants.

Civil Action No. 11-1989 (JEB)

ORDER For the reasons stated in the accompanying Memorandum Opinion, the Court ORDERS that: 1. Defendants’ Motion to Dismiss is GRANTED; and 2. Plaintiff’s Amended Complaint is DISMISSED WITHOUT PREJUDICE.

Date: July 18, 2012

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

1

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BELMONT ABBEY COLLEGE,
Plaintiff, v.
KATHLEEN SEBELIUS, Secretary of the U.S. Department of Health and Human Services, et al.,
Defendants.

Civil Action No. 11-1989 (JEB)

MEMORANDUM OPINION AND ORDER On July 18, 2012, this Court held that it lacked subject-matter jurisdiction to hear Plaintiff Belmont Abbey’s challenge to contraceptive-coverage regulations issued by Defendants. It accordingly dismissed the instant action without prejudice. On July 23, Belmont Abbey moved for reconsideration under Federal Rule of Civil Procedure 59(e), arguing first that the threat of private lawsuits satisfies the injury requirement for both standing and ripeness purposes and, second, that the rules are fit for judicial review because they are final and will expose Belmont Abbey to liability beginning in January 2013. As Belmont’s Motion simply restates arguments already presented to the Court in its Opposition to Defendants’ Motion to Dismiss – without offering previously unavailable evidence or showing manifest error or injustice – the Court will deny the Motion. I. Legal Standard Rule 59(e) permits the filing of a motion to alter or amend a judgment when such motion is filed within 28 days after the judgment’s entry. The court must apply a “stringent” standard when evaluating Rule 59(e) motions. Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). “A
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Rule 59(e) motion ‘is discretionary’ and need not be granted unless the district court finds that there is an ‘intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Nat’l Trust v. Dep’t of State, 834 F. Supp. 453, 455 (D.D.C. 1993)); see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 (2d ed. 1995) (“four basic grounds” for Rule 59(e) motion are “manifest errors of law or fact,” “newly discovered or previously unavailable evidence,” “manifest injustice,” and “intervening change in controlling law”). Rule 59(e), moreover, “is not a vehicle to present a new legal theory that was available prior to judgment.” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012).
II. Analysis In its Motion for Reconsideration, Belmont Abbey asks this Court to revisit the same
arguments it just rejected. First, Plaintiff contends that even if the safe harbor will protect Belmont from government enforcement of the challenged regulations, it faces imminent injury from the threat of private-party suits to enforce the contraceptive-coverage Mandate. See Mot. at 3 (“Defendants’ exposure of Belmont Abbey College to additional ERISA lawsuits beginning in January 2013 under the existing final rule is an imminent injury, sufficient for both standing and ripeness purposes.”) (citing Chamber of Commerce of U.S. v. F .E.C., 69 F.3d 600, 603 ( D.C. Cir. 1995)). Belmont raised precisely the same point in its earlier Opposition, as it openly acknowledges in the current Motion. See Mot. at 3 (“As set forth in Plaintiff’s Opposition to the Motion to Dismiss at 28-29, by virtue of enacting the Rule, the Defendants have exposed Belmont Abbey to private lawsuits seeking to enforce compliance with the Mandate under ERISA.”) (citing 29 U.S.C. §§ 1185d(a)(1), 1132(a)(1)(B)); see also Opp. at 29 (“[E]ven without enforcement by Defendants, Belmont Abbey would still be subject to enforcement by its plan
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participants and beneficiaries” under ERISA). The Supreme Court has made clear that a Rule 59(e) motion “‘may not be used to relitigate old matters.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (quoting 11 Wright & Miller, Federal Prac. & Proc. Civ. § 2810.1). By simply re-raising arguments set forth in its Opposition, that is exactly what Belmont seeks to do.
On this go-round, unlike in its Opposition, Belmont attaches a declaration and eight EEOC Determination Letters to its Motion, indicating that it has been the subject of several EEO complaints regarding its denial of contraceptive benefits. See Mot., Decl. & Exhs. 1-8. As a preliminary matter, these complaints do not relate to the Affordable Care Act’s regulations at all; on the contrary, they arise under a completely different statute – Title VII’s sex-discrimination provisions. In addition, this evidence can hardly be considered newly available. See Firestone, 76 F.3d at 1208. Indeed, all the EEOC letters are dated July 30, 2009, and thus existed for nearly three years before Belmont filed its Opposition to Defendants’ Motion to Dismiss. Id. The Complaint’s reference to “employee complaints to the EEOC [and] an EEOC investigation” regarding contraceptive coverage, moreover, reveals that Plaintiff was well aware before filing its Opposition that evidence of this kind existed. See Compl., ¶ 32; Am. Compl., ¶ 31. Since Rule 59(e) is not a vehicle for “‘present[ing] evidence that could have been raised prior to the entry of judgment,’” Exxon Shipping, 554 U.S. at 486 n.5 (quoting 11 Wright & Miller, Federal Prac. & Proc. Civ. § 2810.1), and Belmont has not offered any reason why it could not have submitted these documents with its Opposition, the Court will not retread old ground.
Second, Belmont Abbey disputes the Court’s ruling that the regulations are not fit for judicial review at this time. See Mem. Op. at 20 (challenged rule not sufficiently final to satisfy fitness prong of ripeness inquiry). In essence, Belmont contends that the contraceptive-coverage Mandate is a “final rule” that will “expos[e] Belmont to liability” starting on January 1, 2013 –
3

the effective date of its first plan year to begin on or after August 1, 201 2. Mot. at 6, 7 ; 42 U.S.C. § 300gg-13(b); 76 Fed. Reg. 46623; Am. Compl., ¶ 33.
Two arguments – both of which were raised earlier – are subsumed within this contention. First, the “exposure” portion is a variation of the argument discussed above with respect to private-party enforcement actions. Even though the safe harbor will protect Belmont Abbey from government enforcement until January 2014, Plaintiff maintains that the regulations are subject to judicial scrutiny now because it could face private suits as early as January of next year. See id. The Court already addressed this argument in its Opinion, finding that the Departments’ position on contraceptive coverage by certain organizations with religious objections remained in flux and that the interest in postponing review under these circumstances outweighed any hardship Plaintiff might face on account of the delay. See Mem. Op. at 23-24. Since Plaintiff has neither offered newly discovered evidence nor shown manifest error or an intervening change in the law, the Court’s decision on t his point will stand. See Firestone, 76 F.3d at 1208.
The second component of Belmont’s “fitness” argument is that the regulations that require health plans to cover all FDA-approved contraceptive methods are final and thus fit for judicial review now. See Mot. at 6-7. This argument was raised by Belmont in its previous Opposition and subsequently considered and rejected by this Court. See Opp. at 21 (contending that the Mandate, which was “‘adopted as final rule without change,’” is “truly final for purposes of the ripeness doctrine”) (emphasis in original); Mem. Op. at 19-20 (holding that the Departments’ position on the contraceptive-coverage Mandate remains tentative and is therefore insufficiently final for judicial review). Since the Court has already addressed this contention in depth in its Opinion and Belmont has failed to articulate a legitimate basis for reconsideration
4

here, the Court need not revisit the merits of the argument. See Exxon Shipping Co. v. Baker, 554 U.S. at 486 n.5 (Rule 59(e) Motion “‘may not be used to relitigate old matters.’”) (internal citation omitted).
Even if the Court were to look once again at the arguments in Belmont’s Motion, such inquiry would not change the outcome of the case, let alone show manifest error or injustice. The threat of future litigation is inadequate to satisfy the imminent-injury component of the standing doctrine. See City of Orville v. F ERC, 147 F .3d 979, 9 87 (D.C. Cir. 1998) (“‘Allegations of injury based on pr edictions regarding future legal proceedings are … t oo speculative to invoke the jurisdiction of an Article III Court.’”) (quoting Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992)) (alteration in original); see also Salvation Army v. Dep’t of Cmty. Affairs of New Jersey, 919 F.2d 183, 193 (3d Cir. 1990) (“theoretical possibility of a suit against [plaintiff] by a program beneficiary” insufficient to establish jurisdiction).
Belmont’s argument regarding the specter of private litigation, moreover, is less persuasive today than it w as at the time of the Court’s initial ruling. Since this Court granted Defendants’ Motion to Dismiss in July, another judge in this District dismissed a similar case on jurisdictional grounds. See Wheaton College v. Sebelius, et al., --- F. Supp. 2d ----, 2012 W L 3637162 (D.D.C. Aug. 24, 2012). In that case, Wheaton College, a Christian educational institution, challenged the same contraceptive-coverage regulations at issue here. Judge Ellen Huvelle found that Wheaton had failed to establish standing, holding among other things that its exposure to private enforcement actions did not constitute “‘actual or imminent’” injury. Id. at *5 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
5

Wheaton likewise agreed with this Court that the regulations are not ripe for judicial review because the agency’s position on t he contraceptive-coverage requirement remains “tentative.” Id. at *8 (“Because they are in the process of being amended, see 77 Fed.Reg. at 16,501 (ANPRM), the preventive services regulations are by definition a tentative agency position ‘in which the agency expressly reserves the possibility that its opinion might change.’”) (citations omitted); accord Nebraska ex. rel. Bruning v. U .S. Dept. of Health and Human Services, --- F. Supp. 2d ----, 2012 WL 2913402, at *22 (D. Neb., July 17, 2012) (Plaintiffs’ claims unripe due to “tentative nature of Departments’ position on religious accommodations to the ACA’s contraceptive coverage requirements”). Belmont’s Motion does not provide any indication that the Departments’ plans to amend the regulations have changed since this Court dismissed its case. The Court, accordingly, finds no basis for revisiting its earlier ruling that the regulations do not satisfy the finality prong of the ripeness analysis.
III. Conclusion For the foregoing reasons, the Court ORDERS that Plaintiff’s Motion for
Reconsideration is DENIED.

Date: September 5, 2012

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

6

 
 Case 1:11-cv-01989-JEB Document 39 Filed 12/18/12 Page 1 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273
Wheaton College, Appellant
v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, et al.,
Appellees

September Term, 2012
1:11-cv-01989-JEB 1:12-cv-01169-ESH
Filed On: December 18, 2012

-----------------------------Consolidated with 12-5291

BEFORE: Garland and Griffith, Circuit Judges, and Randolph, Senior Circuit Judge
O R D E R
In their July 2010 Interim Final Rule, the government appellees issued regulations under the Affordable Care Act, 42 U.S.C. § 300gg-13(a)(4), requiring group health plans and health insurance issuers, unless grandfathered or otherwise exempt, to cover “preventive care and screening[s]” for women in accordance with guidelines to be promulgated by appellee Department of Health and Human Services at a later date. 75 Fed. Reg. 41,726, 41,728 (July 19, 2010). On August 1, 2011, the Department issued those guidelines, which require plans to cover all “FDA approved contraceptive[s].” See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012). An amended Interim Final Rule authorized an exemption for certain organizations with religious objections to contraception, but the exemption does not extend to the appellant religious colleges in these cases. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The appellants have filed complaints challenging the requirement that they provide contraceptive services in two separate complaints consolidated on appeal, which the district courts dismissed on grounds of standing and ripeness. Dismissal for lack of standing was erroneous because standing is assessed at the time of filing, Chamber of Commerce v. EPA, 642

Case 1:11-cv-01989-JEB Document 39 Filed 12/18/12 Page 2 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273

September Term, 2012

F.3d 192, 200 (D.C. Cir. 2011), and the colleges clearly had standing when these suits were filed. The ripeness question is more difficult.
In the Federal Register notice announcing their February 2012 Final Rule, the appellees left the religious employer exemption unchanged but created a safe harbor from enforcement of the contraceptive coverage requirement for entities like the appellants, which remains in effect until the first plan year that begins on or after August 1, 2013. 77 Fed. Reg. at 8728. (The plan years of both appellants begin January 2014.) The notice also announced the appellees’ intention to “develop and propose changes to these final regulations that would meet two goals” -- providing contraceptive coverage without cost-sharing to covered individuals and accommodating the religious objections of non-profit organizations like appellants. Id. at 8727. Thereafter, on March 21, 2012, the appellees issued an Advance Notice of Proposed Rulemaking (ANPRM), which states: “The Departments intend to propose that, when offering insured coverage to a religious organization that self-certifies as qualifying for the accommodation, a health insurer may not include contraceptive coverage in that organization's insured coverage. This means that contraceptive coverage would not be included in the plan document, contract, or premium charged to the religious organization.” 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012). (The ANPRM went on to state: “Instead, the issuer would be required to provide participants and beneficiaries covered under the plan separate coverage for contraceptive services . . . without cost sharing . . . .” Id.)
At oral argument, the government went further. First, it represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services. Oral Arg. Recording at 36:25 - 36:33. There will, the government said, be a different rule for entities like the appellants, Oral Arg. Recording at 37:25 - 38:46, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. Oral Arg. Recording at 35:39 - 36:02.
We take the government at its word and will hold it to it. See EPA v. Brown, 431 U.S. 99 (1977). Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996)); see Devia v. Nuclear Regulatory Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007) (same). The colleges argue that the government's promise not to enforce the mandate still leaves them exposed to liability

Page 2

Case 1:11-cv-01989-JEB Document 39 Filed 12/18/12 Page 3 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273

September Term, 2012

from ERISA claims brought by employees and other beneficiaries. Although the parties disagree over the likelihood of that happening, we see nothing about the bringing of those claims that alters our conclusion that the petitioners’ lawsuits should be held in abeyance pending the new rule that the government has promised will be issued soon. Upon consideration of the foregoing, it is
ORDERED, that in reliance upon the Departments’ binding representations, this court will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days from the date of this order. See Am. Petroleum Inst. v. EPA, 683 F.3d at 390.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Scott H. Atchue Deputy Clerk

Page 3

 
 Case 1:11-cv-01989-JEB Document 40 Filed 08/13/13 Page 1 of 1

~nitta ~tatts <!lour± of J\pptals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-5273
Wheaton College, Appellant
v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, et al.,
Appellees Consolidated with 12-5291

September Term, 2012
1 :11-cv-01989-JEB 1 :12-cv-01169-ESH
Filed On: August 13, 2013

BEFORE: Garland, Chief Judge; Griffith, Circuit Judge; Randolph, Senior Circuit Judge
ORDER
Upon consideration of the joint motion to issue mandate, and in light of the issuance of the final rules, as represented in the parties' motion, it is
ORDERED that these consolidated cases be remanded to the United States District Court for the District of Columbia with instructions to vacate their judgments and to dismiss the complaints as moot.
The Clerk is directed to issue forthwith to the district court a certified copy of this order in lieu of formal mandate.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Michael C. McGrail Deputy Clerk

 
 Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 1 of 6
APPEAL,CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:11−cv−01989−JEB

BELMONT ABBEY COLLEGE v. SEBELIUS et al Assigned to: Judge James E. Boasberg Case in other court: 12−05291 Cause: 05:0706 Judicial Review of Agency Actions
Plaintiff

Date Filed: 11/10/2011 Date Terminated: 07/19/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

BELMONT ABBEY COLLEGE

represented by Mark L. Rienzi THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street, NW Suite 220 Washington, DC 20007 (202) 507−0834 Email: mrienzi@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Nieuwenhuis Kniffin THE BECKET FUND 3000 K Street, NW Suite 220 Washington, DC 20007 (202) 349−7210 Email: ekniffin@becketfund.org ATTORNEY TO BE NOTICED

Eric Christopher Rassbach THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street, NW Suite 220 Washington, DC 20007 (202) 349−7214 Fax: (202) 955−0090 Email: erassbach@becketfund.org ATTORNEY TO BE NOTICED

Shannen W. Coffin STEPTOE &JOHNSON LLP 1330 Connecticut Avenue, NW Washington, DC 20036−1795 (202) 429−6255 Fax: (202) 429−3902 Email: scoffin@steptoe.com TERMINATED: 03/16/2012

V.
Defendant
KATHLEEN SEBELIUS Secretary of the United States Department of Health and Human Services

represented by Michelle Renee Bennett U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 305−8902 Email: michelle.bennett@usdoj.gov

Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 2 of 6

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

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

Defendant
HILDA SOLIS Secretary of the United States Department of Labor

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

Defendant
UNITED STATES DEPARTMENT OF LABOR

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

Defendant
TIMOTHY F. GEITHNER Secretary of the United States Department of the Treasury

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

Defendant
UNITED STATES DEPARTMENT OF THE TREASURY

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

Date Filed 11/10/2011
11/10/2011
01/03/2012 01/04/2012 01/04/2012 01/04/2012

# Docket Text
1 COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY ( Filing fee $ 350, receipt number 4616043664) filed by BELMONT ABBEY COLLEGE. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 11/14/2011)
SUMMONS (8) Issued as to TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, U.S. Attorney and U.S. Attorney General (dr) (Entered: 11/14/2011)
2 Case randomly reassigned to Judge James E. Boasberg. Judge Gladys Kessler no longer assigned to the case. (ds) (Entered: 01/03/2012)
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/14/2011. (Rassbach, Eric) (Entered: 01/04/2012)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/14/2011. Answer due for ALL FEDERAL DEFENDANTS by 1/13/2012. (Rassbach, Eric) (Entered: 01/04/2012)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KATHLEEN SEBELIUS served on 11/14/2011 (Rassbach, Eric) (Entered:

Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 3 of 6

01/04/2012 01/04/2012 01/04/2012 01/04/2012 01/04/2012 01/06/2012 01/06/2012
01/06/2012 01/09/2012 01/27/2012
01/27/2012 01/27/2012 02/13/2012 02/16/2012
02/29/2012 03/02/2012

01/04/2012)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA SOLIS served on 11/15/2011 (Rassbach, Eric) (Entered: 01/04/2012)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF LABOR served on 11/15/2011 (Rassbach, Eric) (Entered: 01/04/2012)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY GEITHNER served on 11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE TREASURY served on 11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
11 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 01/06/2012)
12 Unopposed MOTION for Extension of Time to Respond to the Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 01/06/2012)
MINUTE ORDER granting Defendants' unopposed 12 Motion for Extension of Time to Respond to the Complaint. The Court ORDERS that Defendants shall file a responsive pleading or motion by January 31, 2012. Signed by Judge James E. Boasberg on 1/6/2012. (lcjeb2) (Entered: 01/06/2012)
Set/Reset Deadlines: Defendants shall file a responsive pleading or motion by 1/31/2012. (ad) (Entered: 01/09/2012)
13 MOTION for Extension of Time to Respond to the Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 01/27/2012)
MINUTE ORDER granting 13 Motion for Extension of Time to Respond to the Complaint. The Court ORDERS that Defendants shall file a responsive pleading or motion by February 16, 2012. Signed by Judge James E. Boasberg on 1/27/2012. (lcjeb2) (Entered: 01/27/2012)
Set/Reset Deadlines: Defendants shall file a responsive pleading or motion by 2/16/2012. (ad) (Entered: 01/27/2012)
14 NOTICE of Appearance by Eric Nieuwenhuis Kniffin on behalf of BELMONT ABBEY COLLEGE (Kniffin, Eric) (Entered: 02/13/2012)
15 MOTION to Dismiss for Lack of Jurisdiction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 02/16/2012)
16 NOTICE of Appearance by Shannen W. Coffin on behalf of All Plaintiffs (Coffin, Shannen) (Entered: 02/29/2012)
17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss for Lack of Jurisdiction by BELMONT ABBEY COLLEGE

Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 4 of 6

03/02/2012 03/02/2012 03/16/2012 03/19/2012 03/19/2012 03/19/2012 03/20/2012 03/20/2012
04/05/2012
04/23/2012 05/03/2012
06/22/2012
06/26/2012 07/18/2012

(Attachments: # 1 Text of Proposed Order)(Rassbach, Eric) (Entered: 03/02/2012)
MINUTE ORDER granting 17 Plaintiff's Motion for an Extension of Time. Plaintiff's Opposition shall now be due by March 19, 2012. Signed by Judge James E. Boasberg on 3/2/2012. (lcjeb2) (Entered: 03/02/2012)
Set/Reset Deadlines: Plaintiff's Opposition shall now be due by 3/19/2012. (ad) (Entered: 03/02/2012)
18 NOTICE OF WITHDRAWAL OF APPEARANCE as to BELMONT ABBEY COLLEGE. Attorney Shannen W. Coffin terminated. (Coffin, Shannen) (Entered: 03/16/2012)
19 NOTICE of Appearance by Mark L. Rienzi on behalf of BELMONT ABBEY COLLEGE (Rienzi, Mark) (Entered: 03/19/2012)
20 MOTION to Amend/Correct 1 Complaint, by BELMONT ABBEY COLLEGE (Attachments: # 1 Exhibit Amended Complaint, # 2 Text of Proposed Order)(Rienzi, Mark) (Entered: 03/19/2012)
21 Memorandum in opposition to re 15 MOTION to Dismiss for Lack of Jurisdiction filed by BELMONT ABBEY COLLEGE. (Attachments: # 1 Text of Proposed Order)(Rienzi, Mark) (Entered: 03/19/2012)
MINUTE ORDER granting 20 Plaintiff's Motion to Amend Complaint. The Amended Complaint is deemed FILED, and Defendants' 15 Motion to Dismiss is DENIED WITHOUT PREJUDICE as moot. Signed by Judge James E. Boasberg on 3/20/2012. (lcjeb2) (Entered: 03/20/2012)
22 AMENDED COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY filed by BELMONT ABBEY COLLEGE.(td, ) Modified date filed on 3/20/2012 (td, ). (Entered: 03/20/2012)
23 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 04/05/2012)
24 Memorandum in opposition to re 23 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint filed by BELMONT ABBEY COLLEGE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Exhibit 1−C, # 5 Text of Proposed Order)(Rienzi, Mark) (Entered: 04/23/2012)
25 REPLY to opposition to motion re 23 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Bennett, Michelle) (Entered: 05/03/2012)
26 NOTICE OF SUPPLEMENTAL AUTHORITY by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 06/22/2012)
27 RESPONSE re 26 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by BELMONT ABBEY COLLEGE. (Rienzi, Mark) (Entered: 06/26/2012)
28 VACATED pursuant to the Minute Order filed on 8/19/2013.....ORDER granting Defendants' 23 Motion to Dismiss for Lack of Jurisdiction and dismissing the case without prejudice. Signed by Judge James E. Boasberg on 7/18/2012. (lcjeb3) Modified on 8/19/2013 (ad). (Entered: 07/18/2012)

Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 5 of 6

07/18/2012 07/23/2012 08/07/2012 08/09/2012
08/16/2012 08/27/2012
08/31/2012 09/05/2012 09/14/2012 09/18/2012 10/11/2012 12/18/2012
08/13/2013
08/19/2013

29 VACATED pursuant to the Minute Order filed on 8/19/2013.....MEMORANDUM OPINION regarding 28 Order granting Defendants' Motion to Dismiss. Signed by Judge James E. Boasberg on 7/18/2012. (lcjeb3) Modified on 8/19/2013 (ad). (Entered: 07/18/2012)
30 MOTION for Reconsideration re 29 Memorandum &Opinion by BELMONT ABBEY COLLEGE (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Rienzi, Mark) (Entered: 07/23/2012)
31 NOTICE OF SUPPLEMENTAL AUTHORITY by BELMONT ABBEY COLLEGE (Attachments: # 1 Exhibit A)(Rienzi, Mark) (Entered: 08/07/2012)
32 Memorandum in opposition to re 30 MOTION for Reconsideration re 29 Memorandum &Opinion filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Bennett, Michelle) (Entered: 08/09/2012)
33 REPLY to opposition to motion re 30 MOTION for Reconsideration re 29 Memorandum &Opinion filed by BELMONT ABBEY COLLEGE. (Rienzi, Mark) (Entered: 08/16/2012)
34 NOTICE OF SUPPLEMENTAL AUTHORITY by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Wheaton College Decision)(Bennett, Michelle) (Entered: 08/27/2012)
35 RESPONSE re 34 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by BELMONT ABBEY COLLEGE. (Attachments: # 1 Declaration)(Rienzi, Mark) (Entered: 08/31/2012)
36 MEMORANDUM OPINION and ORDER denying 30 Motion for Reconsideration. Signed by Judge James E. Boasberg on 9/5/12. (lcjeb4) (Entered: 09/05/2012)
37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 28 Order on Motion to Dismiss/Lack of Jurisdiction, 36 Memorandum &Opinion by BELMONT ABBEY COLLEGE. Filing fee $ 455, receipt number 0090−3068080. Fee Status: Fee Paid. Parties have been notified. (Rienzi, Mark) (Entered: 09/14/2012)
38 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC Circuit Court. (rdj) (Entered: 09/18/2012)
USCA Case Number 12−5291 for 37 Notice of Appeal to DC Circuit Court, filed by BELMONT ABBEY COLLEGE. (td, ) (Entered: 10/11/2012)
39 ORDER of USCA as to (37 in 1:11−cv−01989−JEB) Notice of Appeal to DC Circuit Court, filed by BELMONT ABBEY COLLEGE, (23 in 1:12−cv−01169−ESH) Notice of Appeal to DC Circuit Court, filed by WHEATON COLLEGE ; USCA Case Number 12−5273. ORDERED, that in reliance upon the Departments binding representations, this court will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days from the date of this order. (kb) (Entered: 12/20/2012)
40 ORDER of USCA (certified copy) as to 37 Notice of Appeal to DC Circuit Court, filed by BELMONT ABBEY COLLEGE; ORDERED that these consolidated cases be remanded to the United States District Court for the District of Columbia with instructions to vacate their judgements and to dismiss the complaints as moot. USCA Case Number 12−5273. (md, ) (Entered: 08/16/2013)
MINUTE ORDER: As required by the Court of Appeals upon remand, this Court ORDERS that: 1) The judgment is VACATED; and 2) The Complaint is DISMISSED as moot. Signed by Judge James E. Boasberg on 8/19/13. (lcjeb4)

Case: 1:11-cv-01989-JEB As of: 11/15/2013 09:52 AM EST 6 of 6 (Entered: 08/19/2013)