Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 1 of 60

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

MOST REVEREND LAWRENCE E.

)

BRANDT, BISHOP OF THE ROMAN

)

CATHOLIC DIOCESE OF

)

GREENSBURG, as Trustee of The Roman )

Catholic Diocese of Greensburg, a

)

Charitable Trust; THE ROMAN

)

CATHOLIC DIOCESE OF

)

GREENSBURG, as the Beneficial Owner )

of the Greensburg series of The Catholic )

Benefits Trust; CATHOLIC CHARITIES )

OF THE DIOCESE OF GREENSBURG, )

an affiliate nonprofit corporation of The )

Roman Catholic Diocese of Greensburg; )

and ST. JOHN THE EVANGELIST

)

REGIONAL CATHOLIC SCHOOL, an )

affiliate Charitable Trust of The Roman )

Catholic Diocese of Greensburg,

)

)

Plaintiffs,

)

v.

) )

KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; THOMAS PEREZ, in his official capacity as Secretary of the U.S. Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF TREASURY

) ) ) ) ) ) ) ) ) ) ) ) )

Defendants.

)

)

CASE NUMBER: _________ DATE STAMP: ___________ JURY TRIAL DEMAND

COMPLAINT

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 2 of 60
1. This case represents another chapter in the Catholic Dioceses’ prolonged fight for their religious freedom. In all material respects, this case is identical to Zubik v. Sebelius, 13CV-1459, 2013 U.S. Dist. LEXIS 165922 (W.D. Pa. Nov. 21, 2013), where this Court granted the Bishops, Dioceses, and their affiliates a permanent injunction, conclusively deciding the issues presented in this case. Before filing this action, Plaintiffs reached out to the Defendants’ counsel to try and expand the Zubik permanent injunction to the Diocese of Greensburg and its affiliated entities. Such an extension is warranted and appropriate, to conserve judicial resources and the resources of the parties. Defendants failed to agree to the injunction, thereby necessitating this action to protect Plaintiffs’ religious liberties under the Religious Freedom Restoration Act (“RFRA”) and the U.S. Constitution. Plaintiffs seek declaratory and injunctive relief based on the allegations and claims set forth below. Plaintiffs also seek an award of attorneys’ fees against Defendants for needless and repetitive litigation over civil rights issues already decided by this Court.
2. Federal law (the “U.S. Government Mandate”) requires religious organizations such as Plaintiffs to provide services that violate their long-standing teachings on abortion and the sanctity of human life by subsidizing, providing, and/or facilitating coverage for abortioninducing drugs, sterilization services, contraceptives, and related counseling services (also referred to herein as the “objectionable services”).
3. In 2011, Defendants first issued regulations which violated Plaintiffs’ long- and sincerely-held religious beliefs in an unprecedented manner. Since issuing those regulations, the Government consistently promised that changes were coming and that these changes would accommodate Plaintiffs’ sincerely-held religious beliefs.
2

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 3 of 60
4. More than two years later, it is more clear than ever that these promises were empty words. The Government ignored the views of religious organizations like Plaintiffs by promulgating a final rule that is more damaging than the initial regulations.
5. The Government has repeatedly promised to protect Plaintiffs’ religious freedom, but the Government has chosen not to do so. Despite over 400,000 public comments, repeated requests from Church leaders, and repeated promises from the Government that it would fix the problem, the Government has not changed the core principle of the U.S. Government Mandate. On June 28, 2013, the Government issued its Final Rule, which still requires Plaintiffs to subsidize and/or directly facilitate the provision of abortion-inducing drugs, contraception, sterilization, and related education and counseling, in violation of their religious beliefs.
6. The Government, through the U.S. Government Mandate, is forcing Plaintiffs to violate their sincerely-held religious beliefs. Plaintiffs Catholic Charities of the Diocese of Greensburg (“Catholic Charities”) and St. John the Evangelist Regional Catholic School (“St. John School”) are forced to comply with the U.S. Government Mandate or face significant fines and penalties. Plaintiffs Most Reverend Lawrence E. Brandt (the “Bishop”) and the Roman Catholic Diocese of Greensburg (the “Diocese”) are forced to directly facilitate coverage of the objectionable services because the insurance trust which the Diocese operates currently offers coverage to Diocesan-affiliated entities subject to the U.S. Government Mandate.
7. The Government’s violation of religious freedom is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act (“APA”), and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or directly facilitate access to abortion-inducing drugs, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive
3

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 4 of 60
means of advancing any interest it has in increasing access to these services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object.
8. The Government cannot justify its decision to force Plaintiffs to provide, pay for, and/or directly facilitate access to these services in violation of their sincerely-held religious beliefs. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
9. Plaintiff Most Reverend Lawrence E. Brandt, Bishop of The Roman Catholic Diocese of Greensburg, is the Trustee of The Roman Catholic Diocese of Greensburg, a Pennsylvania Charitable Trust. Bishop Brandt resides in Greensburg, Pennsylvania.
10. Plaintiff The Roman Catholic Diocese of Greensburg is a Pennsylvania Charitable Trust with a principal place of administration in Greensburg, Pennsylvania. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
11. Plaintiff Catholic Charities of the Diocese of Greensburg is a nonprofit corporation affiliated with the Diocese and with a principal place of administration in Greensburg, Pennsylvania. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
12. Plaintiff St. John the Evangelist Regional Catholic School is a Pennsylvania Charitable Trust with its principal place of business in Uniontown, Pennsylvania. It is organized
4

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 5 of 60
exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
13. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
14. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
15. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
16. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the APA.
17. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
18. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
19. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
20. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or directly facilitate access to objectionable products and services in contravention of their sincerely-held religious beliefs, as described below.
21. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
5

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 6 of 60
22. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
23. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. The Bishop and the Diocese
(1) Background on the Religious Mission of the Bishop and the Diocese 24. The Bishop of Greensburg is the shepherd of the Catholic faithful in Southwestern Pennsylvania. The Bishop in his capacity as Bishop of the Greensburg Diocese also serves as Trustee for 78 parishes and their charitable trusts. The Diocese provides services throughout four counties in Southwestern Pennsylvania—Armstrong, Fayette, Indiana, and Westmoreland Counties—including a Catholic population of approximately 153,000 people. 25. The Bishop also oversees the multifaceted mission of spiritual, educational, and social service to residents of this four-county region, Catholic and non-Catholic alike. Specifically, the Bishop oversees the mission of social service in his role as Chairman of the Membership Board of Plaintiff Catholic Charities. 26. Because education is an integral component of the Catholic faith, the Diocese serves the community through its affiliated Catholic schools. The Diocese’s Catholic schools include two high schools, two junior high schools, thirteen elementary schools, and various preschool programs. These schools educate approximately 2,800 students. 27. The Diocesan schools are open to and serve all children, without regard to the students’ religion, race, or financial condition. 28. Two Catholic junior-senior high schools are affiliated with the Diocese, including Geibel Catholic Junior-Senior High School and Greensburg Central Catholic Junior-Senior High School. Ninety-seven percent of senior high school students in the Diocesan schools continue further education after high school.
6

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 7 of 60
29. The elementary schools within the Diocese are not exclusive to Catholics. For example, approximately sixty percent of the students at Holy Trinity School identify as nonCatholic, and approximately forty percent of the students at Conn-Area Catholic School and the Cardinal Maida Academy identify as non-Catholic.
30. As described below, the U.S. Government Mandate will result in the schools within the Diocese being treated inconsistently and differently, in that some schools within the Diocese will be exempt from compliance with the U.S. Government Mandate while other schools will not. Defendants’ religious employer exemption rests on formalistic distinctions which do not work in practice and rather, seek to create a division in the Catholic church between (a) houses of worship and (b) charitable and educational organizations which provide good works and education to those in need.
31. The Diocese provides numerous other social services to the needy, underserved, and underprivileged residents of its four-county community. Diocesan employees and volunteers provide these services without regard to national origin, race, color, sex, religion, age, or disability. For example, the Diocese provides crisis pregnancy assistance and post-abortion healing ministries.
32. The Diocese assists the work of many other local organizations, including organizations that provide support to the homeless and provide counseling and support to struggling families.
(2) Operation and Beneficial Ownership of the Catholic Benefits Trust 33. The Diocese of Greensburg operates a self-insured health plan through the Catholic Benefits Trust (or the “Trust”). The Catholic Benefits Trust was formed in June 2013 by an agreement between the Diocese of Greensburg, the Diocese of Pittsburgh, and the Diocese of Altoona-Johnstown (the “Trust Agreement”) in an effort to pool resources with regard to
7

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 8 of 60
health benefits. The Trust was formed by the Diocese of Pittsburgh converting its Catholic Employers Benefits Plan Delaware Trust to a Delaware statutory trust and expanding the Trust to include the Dioceses of Greensburg and Altoona-Johnstown.
34. The three Dioceses are the Beneficial Owners of the Catholic Benefits Trust, which is split into three series: the Greensburg series, the Pittsburgh series, and the AltoonaJohnstown series. Each Diocese is sole “Beneficial Owner” and sole beneficiary of its respective series. Accordingly, the Diocese of Greensburg is the sole Beneficial Owner and sole beneficiary of the Greensburg series of the Trust.
35. The Catholic Benefits Trust provides coverage to “Diocesan Entit[ies],” defined in the Trust Agreement as “any Agency, Parish, School, seminary or other similar entity subject to the supervision, or administrative and pastoral care, of a Diocese.” Presently, approximately 230 Catholic organizations, including the Diocese of Greensburg, Catholic Charities of the Diocese of Greensburg, and all of the parishes and schools within the Diocese of Greensburg, along with the Dioceses of Pittsburgh and Altoona-Johnstown and affiliated entities within those Dioceses, participate in the Catholic Benefits Trust. Within these organizations, approximately 3,100 employees and 5,000 participants receive their health insurance through the Trust. This structure allows even very small organizations to benefit from economies of scale, to be selfinsured and to spread their risks. As a result, each religious organization can offer its employees better benefits at lower costs.
36. The three Dioceses do not contract with a separate insurance company that pays for the employee health plans sponsored by the Trust. Instead, the Trust functions as the insurance company underwriting the covered employees’ medical costs, with all funding coming from each respective Diocese and its covered affiliates.
8

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 9 of 60
37. The health plans sponsored by the Trust are administered by Third Party Administrators (“TPAs”), who are paid a flat fee for each covered individual for administering the plans but who do not pay for any services received by covered employees.
38. The Trust sponsors one set of group health plans for the Diocese of Greensburg, Catholic Charities of the Diocese of Greensburg, and all other Diocesan-affiliated entities with the Diocese of Greensburg (the “Diocesan plan”).
39. Approximately 600 employees at the Diocese and its various affiliated entities are eligible for coverage through the Catholic Benefits Trust. Approximately 400 employees are covered and approximately 800 individuals are covered, including dependents.
40. The Diocese’s next plan year begins on July 1, 2014. 41. The Diocese offers two health plan options to its lay employees as well as to all lay employees of its affiliated entities: (1) a lay basic plan, and (2) a lay premium plan. Neither lay plan is “grandfathered.” Indeed, the Diocese did not include a statement describing its grandfathered status in plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii) for grandfathered plans. 42. Consistent with Church teachings, the Diocesan plan offered through the Trust does not cover abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary. 43. Many Diocesan-affiliated entities currently insured through the Trust likely do not qualify for Defendants’ religious employer exemption and so are instead subject to the so-called “accommodation.” 44. Plaintiffs Catholic Charities and St. John School are two such entities, which likely do not qualify for the exemption and which do not have a “grandfathered” health plan.
9

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 10 of 60
45. While the Diocese is exempt from compliance with the U.S. Government Mandate, both the Bishop and the Diocese will be forced directly to facilitate coverage for the objectionable services through their participation in the operation of the Catholic Benefits Trust. The Diocese, through the Bishop, has the power to manage, oversee, and direct the Greensburg series of the Trust in its role as sole Beneficial Owner and beneficiary of that series. The Bishop and the Diocese will be forced directly to facilitate provision of the objectionable services because accommodated entities currently included in the Trust, such as Plaintiffs Catholic Charities and St. John School, will be forced to comply with the U.S. Government Mandate.
46. The Trust Agreement provides that “each Director” of the Board of Directors of the Trust shall be “appointed by the Bishop of each Diocese that is or becomes a Beneficial Owner” of the Trust. The Board of Directors is then responsible for “[t]he management of the Trust[.]” Thus, the Bishop is forced to appoint a Director to the Board of the Trust with the knowledge that, under the U.S. Government Mandate, the Director must then allow the Trust directly to facilitate provision of the objectionable services for accommodated entities. The Bishop knows that his appointee will be forced to violate the Catholic faith.
47. While “all powers to manage the business and affairs of the Trust and each Series shall be exclusively vested in the Board and the Board may exercise all powers of the Trust[,]” “a majority of the Beneficial Owners may amend [the Trust] Agreement in writing at any time and thereby broaden or limit the Board’s power and authority[.]” Accordingly, while the Board of Directors manages the daily affairs of the Trust, the Dioceses through their respective Bishops have ultimate decision-making authority and ultimately are forced directly to facilitate provision of the objectionable services to the employees of accommodated entities within the Trust.
10

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 11 of 60
48. Additionally, it is the Diocese, as operator and sole Beneficial Owner of the Greensburg series of the Trust, which decides whether accommodated entities should be permitted to continue participating in the Trust. The Trust Agreement provides that: “Each Beneficial Owner may allow such Diocesan Entities to benefit in such Series in respect of which such Beneficial Owner is the holder of the sole Interest in accordance with the terms and conditions established by such Beneficial Owner in consultation with its advisors.” Since accommodated, non-grandfathered entities, like Plaintiffs Catholic Charities and St. John School, currently participate in the Trust, the Diocese will directly be facilitating coverage of the objectionable services for the employees of these accommodated entities by permitting these entities to participate in the Trust. The Diocese is now faced with the decision of whether to expel these accommodated entities from the Trust.
49. The Diocese, as sole Beneficial Owner of the Greensburg series of the Trust, is ultimately responsible for any fines incurred by accommodated entities as a result of noncompliance with the U.S. Government Mandate. Under the Trust Agreement, “[a] particular Series shall be charged with the liabilities of that Series, and all expenses, costs, charges and reserves attributable to any particular Series shall be borne by such Series.”
50. Finally, the Bishop, as Chairman of the Membership Board of Catholic Charities and Trustee of St. John School, is ultimately responsible for deciding whether these entities will sign the self-certification form. The Bishop cannot, consistent with Catholic doctrine, permit either entity to sign the self-certification form.
51. In all of these ways, the Bishop and the Diocese are forced directly to facilitate coverage for the objectionable services.
11

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 12 of 60
B. Catholic Charities of the Diocese of Greensburg (1) Background on the Religious Mission of Catholic Charities
52. Plaintiff Catholic Charities is the primary social service agency of the Diocese under the leadership of Bishop Brandt. Catholic Charities has been providing services and support for individuals, couples, and families through a variety of programs since 1954.
53. Its mission is to serve the human needs of individuals and families, regardless of their religious affiliation, and to provide leadership in building collaborative efforts with parishes and communities in addressing these needs.
54. Catholic Charities’ programs reach out through the four counties of the Diocese with five satellite offices and include specifically defined workshops and seminars for parishes. All programs are provided with the highest degree of confidentiality and are administered by professionally trained associates committed to the human dignity of the person and quality care and support.
55. Catholic Charities provides more than 11,400 acts of service each year for people in need throughout Southwestern Pennsylvania, with approximately 18 employees, and with offices in all four counties that the Diocese serves. Catholic Charities has distributed approximately $1,954,279 over the last ten years to those in need.
56. Catholic Charities serves the needy, underserved, and underprivileged in countless ways. Its programs and services include information and referral services, adoption, counseling, safety net and stability services, housing and homeless assistance, pregnancy and parenting support, and senior services. Catholic Charities also offers workshops with topics including living wills, powers of attorney, medical decision documents, and senior enrichment.
57. The comprehensive information and referral services provided at Catholic Charities are considered among the best in the Diocese. Temporary Emergency Financial
12

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 13 of 60
Assistance is provided through the information and referral program for basic needs, such as food, heat, shelter and other utilities. A toll-free “Help Line” is available 24 hours a day/7 days a week to those with immediate needs.
58. Catholic Charities administers Poverty Relief Fund grants through a program started by Bishop Brandt in 2010. The Poverty Relief Fund’s central purpose is to provide concrete support for organizations that work to help people raise themselves out of poverty. The grants help provide food and shelter to people in need and provide assistance to agencies that are committed to helping people out of poverty. The grants have provided, for example, funding to three service organizations in the Diocese that provided meals for children during the summer, helped families with infants, and helped men who are homeless. A Poverty Relief Fund grant was also given to the “Alternative.Yes Pregnancy Support Center.” This Pregnancy Support Center offers a variety of services, such as free pregnancy test kits, maternity and baby clothes, baby furnishings and full newborn layettes. The Center also offers pregnancy information, professional counseling, and referrals for medical care, housing, adoption, childbirth classes, social services, employment guidance, and legal aid.
59. Catholic Charities provides support and referral for those facing crisis pregnancies, as well as providing infant baby clothing, formula, and diapers for new parents in need, through the Baby Closet. Support is available for the expectant parents and extended family members beginning with the possibility of conception to the baby’s first birthday. Project Rachel, post-abortion healing and reconciliation counseling, is also offered to those struggling with issues relating to abortion. Options regarding adoption also are discussed. All services provided through this program are free.
13

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 14 of 60
60. Catholic Charities also supports a parenting program throughout the four counties of the Diocese of Greensburg. Women who are pregnant or have recently given birth are provided with supportive counseling (whether parenting or making an adoption plan) and access to workshops and classes to learn parenting and life skills, in addition to employment preparedness in order to become more stable. Last year, 69 parents accessed these services. Catholic Charities also provided permanency service to 100 children in the Pennsylvania foster care system.
61. The Adoption and Foster Care Center is Catholic Charities’ longest standing program. Adoptive parents can also benefit from pre and post adoption counseling and support groups. These groups address a variety of issues adoptive parents and children may face.
62. Catholic Charities provides additional counseling services, including individual counseling, marital and couples counseling, family counseling, anger management groups, and counseling for gambling and other addiction issues.
63. Through its various social service programs, in 2013, Catholic Charities provided approximately 944 meals to the hungry, 520 hours of case management to struggling individuals and families, and 1,791 hours of counseling.
64. Donors are the life blood of Catholic Charities, and they make the mission and programs of Catholic Charities possible. Additionally, the Diocese provides funding to Catholic Charities and its programs.
65. Catholic Charities’ employees are insured under the Diocesan plan. Currently, approximately 18 of Catholic Charities’ employees are covered under the health plan, with a total of approximately 38 insured individuals, including dependants.
14

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 15 of 60
66. Catholic Charities does not currently qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities likely does not currently qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
67. Catholic Charities is an affiliated corporation of the Diocese. The Diocese has direct oversight of the governance of Catholic Charities and the Bishop has direct oversight of the governance of Catholic Charities in his role as Chairman of the Membership Board of Catholic Charities.
C. St. John the Evangelist Regional School 68. St. John School is a Catholic elementary school in the Uniontown area that offers education for preschool through eighth grade. 69. The primary purpose of St. John School is to provide a school environment centered on the Gospel and based on the values of the Catholic faith. The school program is an extension of the Diocese of Greensburg in educating and reinforcing the Catholic faith. Catholic schooling fulfills its academic purpose while simultaneously promoting a disposition to service, passion for justice, and commitment to God and the church. 70. As part of the spiritual life at St. John School, mass and daily prayer are celebrated. Daily theology classes are part of an age-appropriate curriculum for all grades. Students at St. John School, along with students at all other schools in the Diocese, also participate in parish and school service projects throughout the year. Each grade at St. John School is responsible for its own service project each year. A few examples of these projects include writing to military veterans, providing service to senior living homes in Fayette County, and providing assistance to the St. Vincent de Paul Society in Greensburg, which is a Catholic organization that sponsors various projects and events to assist and support individuals in need.
15

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 16 of 60
71. In addition to serving the community, students are encouraged to reflect on their service experiences to identify how they were served, personally and spiritually, by reaching out to help others. Accordingly, students learn to express the spiritual, charitable, and educational mission of the Diocese through both faith and good works.
72. Additionally, St. John School offers religious retreats and publicizes volunteer opportunities for its students.
73. Currently, St. John School has approximately 210 students. 74. The Diocese offers financial aid to attend St. John School, as well as other schools in the Diocese, through Diocesan Endowment funds, Parish Supported Financial Aid (“PSFA”) Funds, and the Scholarship Partners Foundation established by the Diocese of Greensburg, which benefits qualifying families at the local school level. These resources ensure that St. John School remains affordable to all families that desire such an education. 75. St. John School employees are insured under the Diocesan plan. Currently, thirteen employees and six dependents of St. John School are insured under that plan. 76. St. John School does not currently qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, however, it is exempt from tax reporting obligations under 26 C.F.R. § 1.6033-2(g)(1)(vii). Accordingly, despite being exempt from tax reporting obligations, St. John School likely does not currently qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 77. St. John School is a charitable trust affiliated with the Diocese. The Bishop, in his role as Trustee of St. John School, and the Diocese directly oversee the governance of St. John School.
16

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 17 of 60
II. STATUTORY AND REGULATORY BACKGROUND 78. Plaintiffs are engaged in a long-running regulatory struggle that dates back to
2011, when the Government began its historically unprecedented violation of the core constitutional right to religious freedom. Since that time, the Government has bobbed and weaved around various legal challenges by (i) saying whatever it needed to get by the moment, (ii) promising courts around the country on record that it would resolve the concerns that Plaintiffs have raised over the years, and (iii) inviting public comments and representing that it would take these comments seriously. But, despite all that it said, and all that has happened, the Government has finalized a rule that respects nothing, resolves nothing, and attempts to confine what constitutes one’s practice of faith to the four corners, bricks and mortar of a house of worship.
A. Statutory Background 79. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1). 80. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in
17

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 18 of 60
comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
81. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010) (“Interim Final Rules”); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
82. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services
18

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 19 of 60
Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act). 83. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. 84. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other
19

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 20 of 60
health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added).
85. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
86. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
20

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 21 of 60
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption
87. In a span of less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the U.S. Government Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
(1) The Original Mandate and Advance Notice of Proposed Rulemaking 88. On July 19, 2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 89. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception. 90. Unsurprisingly, the IOM Committee invited presentations from several “prochoice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former
21

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 22 of 60
president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
91. The contract for the development of the definition of “preventive care” required HHS to pay the IOM $906,902.00 to develop the definition of “preventive care” and required IOM to provide various materials to HHS as it was developing the “preventive care” definition, Specifically, the contract required IOM to submit to HHS, among other things: (i) a work plan, (ii) a research brief, and (iii) quarterly electronic reports.
92. Despite the contractual terms, HHS never received any of the contractuallyrequired written materials from IOM, other than the final report that was issued on July 19, 2011. HHS never received a work plan, research brief, or any quarterly electronic reports. It never received any documentation from IOM, other than the final report.
93. IOM’s final report recommended that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” at 218219 (2011).
94. The extreme bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
22

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 23 of 60
95. HHS immediately showed concern regarding the dissent, asking IOM how common such dissents are. IOM responded that dissents are “not common—very few happen each year.” Yet, HHS did not slow its approval process.
96. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the U.S. Government Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religious-liberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom .edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “slippery slope” that could occur by “opening up that door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
97. Internal HHS emails indicate that HHS’ review of the final report was rushed. Internal emails dated July 20 and 21, 2011 with the subject line “FOR EXPEDITED REVIEW: Women’s Preventive Services: Comments Due Tomorrow (Thursday) morning” indicate “Please note that they are requesting our comments as early as possible today. Also, they are asking us to notify [HHS Office of the Secretary] if we think we will have comments so please
23

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 24 of 60
get back to me on this latter questions as soon as possible.” The emails state “Sorry for the short review time.”
98. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the IOM Committee and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines.
99. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
100. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the U.S. Government Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious
24

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 25 of 60
values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
101. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
102. The sweeping nature of the U.S. Government Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. As Cardinal Wuerl later wrote, “Never before has the government contested that institutions like Archbishop Carroll High School or Catholic University are religious. Who would? But HHS’s conception of what constitutes the practice of religion is so narrow that even Mother Teresa would not have qualified.”
103. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer “a one-year safe harbor from enforcement” for religious organizations that
25

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 26 of 60
remained subject to the Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.”
104. A month later, under increasing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the U.S. Government Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the U.S. Government Mandate, and in fact reaffirmed the Government’s view at the time that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/generalcounsel/rulemaking/upload/comments-on-advance-notice-of-proposed-rulemaking-onpreventive-services-12-05-15.pdf.
(2) The Government’s Final Offer of an Empty “Accommodation” and Issuance of the “Final Rule”
105. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. Contrary to the Government’s previous assurances, the NPRM adopted the proposals contained in the ANPRM.
26

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 27 of 60
106. Despite opposition from the U.S. Conference of Catholic Bishops and various other commenters, as described below, on June 28, 2013, the Government finalized the U.S. Government Mandate, adopting the core proposals in the NPRM. See 78 Fed. Reg. 39870 (July 2, 2013) (“Final Rule”).
107. The Final Rule makes three changes to the U.S. Government Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them significantly increases that burden by significantly increasing the number of religious organizations subject to the U.S. Government Mandate.
108. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. 39874 (codified at 45 CFR § 147.131(a)). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013). Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious
27

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 28 of 60
organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
109. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the U.S. Government Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “refer to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers,” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category. Similar problems arise in evaluating whether an organization is an “integrated auxiliary” under Treasury Regulations that assess, among other things whether an organization “shares common religious doctrines, principles, disciplines, or practices with a church,” or “receives more than 50% of its support” from non-church sources. See 26 C.F.R. § 1.6033-2(h).
28

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 29 of 60
110. As Bishop Brandt has stated, the “[e]xemptions are nearly unattainable for most Catholic organizations, such as Catholic charities and Catholic hospitals, which hire and serve non-Catholics outside of the church building[.]” Katelyn Snyder, Bishop warns Catholics against HHS Mandate at annual White Mass, CATH. ACCENT (Nov. 7, 2013).
111. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its TPA. 26 CFR § 54.9816-2713A(a). The provision of this self-certification then automatically requires the insurance issuer or TPA to provide or arrange “payments for contraceptive services” for the organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 CFR § 2590.715-2713 45 CFR § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 CFR § 54.9815–2713.
112. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the U.S. Government Mandate, a nonexempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling.
29

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 30 of 60
Under the Final Rule, a nonexempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-2713A(b)-(c).
113. In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to Plaintiffs’ beliefs. The provision of the objectionable products and services is directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 CFR § 2590.715-2713 (for self-insured employers, the TPA “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 CFR § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).
114. For self-insured organizations, like Plaintiffs, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by nonexempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
115. This shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into directly facilitating access
30

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 31 of 60
to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely-held religious beliefs.
116. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Catholic Charities and St. John School must provide a “certification” to Plaintiffs’ TPA setting forth its religious objections to the U.S. Government Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the TPA to obtain the objectionable coverage for Catholic Charities’ and St. John School’s employees. A religious organization’s self-certification, therefore, is a trigger and butfor cause of the objectionable coverage.
117. Moreover, the Bishop and Diocese are forced to directly facilitate coverage for the objectionable services through accommodated entities currently participating in the Catholic Benefits Trust, such as Catholic Charities and St. John School.
118. The Bishop oversees the governance of Catholic Charities and St. John School in his role as Chairman of the Membership Board of Catholic Charities and as Trustee of St. John School, and is forced directly to facilitate moral evil when Catholic Charities and St. John School, organizations which he oversees, provide the “certification” to Plaintiffs’ TPA. That “certification” triggers an obligation on the part of the TPA to obtain the objectionable coverage for Catholic Charities’ and St. John School’s employees.
119. The Diocese is also forced directly to facilitate coverage for the objectionable services in that it oversees the governance of Catholic Charities and St. John School and offers health coverage to these entities, through the Trust.
31

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 32 of 60
120. Additionally, as pointed out in the Diocese of Pittsburgh’s public comments and the expert report submitted with the Diocese of Pittsburgh’s comments, described below, the U.S. Government Mandate requires religious organizations such as Plaintiffs to subsidize the objectionable services.
121. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that these organizations will not actually be paying for it, notwithstanding the fact that the organizations’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
122. The Government’s “cost-neutral” assertion, however, is based on smoke and mirrors. It rests on the unproven (and implausible) assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the U.S. Government Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
123. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. The so-called “accommodation” is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be
32

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 33 of 60
redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
124. For self-insured organizations, like Plaintiffs, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that TPAs required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882. Those TPAs that are willing to participate in this regime are likely to increase fees charged to the self-insured organizations.
125. Either way, as with insured plans, self-insured organizations, like Plaintiffs, likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
126. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or directly facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerelyheld religious beliefs.
127. Third, the Final Rule actually increases the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government’s initial “religious employer” definition, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
33

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 34 of 60
128. For example, the Diocese, through the Catholic Benefits Trust operates a selfinsured plan that covers not only the Diocese itself, but other affiliated Catholic organizations within the Diocese. Under the religious employer exemption that was originally proposed, if the Diocese was an exempt “religious employer,” then these other organizations under the Diocesan plan would have received the benefit of that exemption, regardless of whether they independently qualified as a “religious employer,” since they could continue to participate in the plan offered by the Diocese. These affiliated organizations, therefore, could benefit from the Diocese’s exemption even if they, themselves, could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
129. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. 39,886. See also 78 Fed. Reg. at 8467 (NPRM).
130. In this respect, the U.S. Government Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the U.S. Government Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not.
131. Accordingly, Bishop Brandt rightly accused the Mandate of “forcing people with a religious conscience to have the freedom to worship only in a church building rather than in the
34

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 35 of 60
public square.” Katelyn Snyder, Bishop warns Catholics against HHS Mandate at annual White Mass, CATH. ACCENT (Nov. 7, 2013). The U.S. Government Mandate therefore deeply, and improperly, intrudes into internal Church governance.
132. Moreover, since nonexempt organizations including Plaintiffs Catholic Charities and St. John School are part of the Diocese’s Trust, the Diocese, as the entity which determines which organizations will participate in the Trust, is now required by the U.S. Government Mandate to do one of two things: (1) provide the employees of these organizations with a separate insurance policy that covers abortion-inducing drugs, contraception, sterilization, and related counseling, or (2) expel these organizations from the Trust and thereby force these organizations to enter into an arrangement with another insurance provider that will, in turn, provide the objectionable coverage. Either alternative violates the Diocese’s sincerely-held religious beliefs, and will jeopardize the ability of the Trust to continue to operate in its current fashion of providing affordable, quality health insurance.
133. Additionally, under either alternative, the Bishop, as Chairman of the Membership Board of Catholic Charities and Trustee of St. John School, ultimately will have to decide whether these entities can sign the self-certification form, in violation of Catholic beliefs.
134. Expelling nonexempt organizations from the Catholic Benefits Trust would result in increased costs for the Diocese and the expelled organizations, including Catholic Charities and St. John School, because each organization would be pooling financial resources in a smaller group.
135. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government Mandate imposes on Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the
35

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 36 of 60
U.S. Government Mandate and jeopardizes the continued operation of Plaintiffs’ health plans. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerelyheld religious beliefs.
(3) The Government Ignored Opposition to the Proposed Rule 136. The NPRM, like the Government’s previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20final.pdf. 137. Additionally, the Diocese of Pittsburgh—a sister Diocese with a long history of cooperating with and supporting the Diocese of Greensburg—submitted extensive public comments on the NPRM on April 8, 2013. Public Comments and Expert Opinion submitted by the Roman Catholic Diocese of Pittsburgh, (April 8, 2013), available at http://www.regulations.gov/#!documentDetail;D=CMS-2012-0031-160262. 138. In its public comments, the Diocese of Pittsburgh asserted that the proposed “religious employer” exemption draws indefensible and unconstitutional distinctions between equally religious Diocesan affiliates. Specifically, the exemption uses corporate formalities to restrict religion to worship alone, when religious service is an essential part of the Catholic faith. Id.
36

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 37 of 60
139. Additionally, the Diocese of Pittsburgh explained that the now-final exemption will needlessly increase insurance costs. The exemption could require Dioceses, like the Diocese of Pittsburgh and Diocese of Greensburg, to alter the structure of their health plans since they will no longer be able to insure nonexempt entities. Expelling nonexempt entities would decrease the pooled financial resources which currently enable the Diocese of Pittsburgh and the Diocese of Greensburg to offer comprehensive health coverage to their employees and to employees of affiliated religious entities, including Plaintiffs Catholic Charities and St. John School. Id.
140. The Diocese of Pittsburgh asserted that the proposed “accommodation” violates its religious beliefs by requiring accommodated entities to pay for and facilitate immoral acts. Action by these entities will trigger the U.S. Government Mandate requirement to provide the objectionable coverage, including: (i) signing the self-certification form that triggers the TPA’s duties to provide the coverage; (ii) providing the names of covered individuals that the TPA will contact for coverage; and (iii) providing the self-certification of their objections to their TPA will trigger coverage for the objectionable services. Id.
141. The Diocese of Pittsburgh also demonstrated that the proposed “accommodation” will not, in practice, work as currently written. The Diocese of Pittsburgh engaged Dr. Scott E. Harrington, the Alan B. Miller Professor in Health Care Management, Insurance and Risk Management, and Business Economics and Public Policy at the Wharton School of the University of Pennsylvania, a renowned healthcare economist, to determine how the proposed rule will work.
142. Dr. Harrington’s expert opinion detailed that the proposed rule, in application: (i) will likely make obtaining health insurance more costly for both fully-insured and self-insured
37

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 38 of 60
eligible organizations; (ii) will require fully-insured eligible organizations to directly fund coverage of the objectionable services; (iii) puts in place a regulatory scheme which will limit the insurance market available to self-insured eligible organizations; and (iv) on its face requires self-insured eligible organizations to facilitate coverage without funding the objectionable services, but in application may result in these organizations funding such services as it may be difficult if not impossible to ensure that administrative fees paid by these organizations are not contributing to such coverage. Id.
143. The Diocese of Pittsburgh offered solutions on how the Government could protect religious liberty with revisions to the proposed rule. The Diocese of Pittsburgh advanced two proposals: (i) The Departments should broaden the religious employer exemption to include Diocesan-affiliated organizations, which do good, religious works under the guidance and leadership of their Bishops; or (ii) The Departments should delay enforcement of any new rule so that there is time to adjudicate the substantive rights of religious organizations. Id. Both of these solutions were ignored.
144. Thus, despite all of its promises and despite various Dioceses’ representations that the Government had not in fact fixed the problem, the Government adopted the core proposals in the NPRM and issued the Final Rule. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious
Beliefs 145. Responding to the U.S. Government Mandate, Cardinal Wuerl has declared that “what is at stake here is a question of human freedom.” And indeed it is. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government
38

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 39 of 60
authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
146. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
147. It is a core tenet of Plaintiffs’ religion that human life is sacred from conception to natural death. The Plaintiffs’ commitment to service and charity is an integral element of the Plaintiffs’ religion and an indispensible expression of Plaintiffs’ commitment to the preservation of human life.
148. As a small but integral part of Plaintiffs’ fundamental commitment to the preservation of human life, Plaintiffs serve their employees by providing them with health care coverage.
149. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
150. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
151. As a corollary, Plaintiffs’ Catholic beliefs prohibit them contracting with an insurance company or TPA that will, as a result, provide or procure the objectionable services for Plaintiffs’ employees.
152. Moreover, the manner in which the U.S. Government Mandate achieves the costsavings necessary for it to operate effectively is predicated on the Government’s prediction of a decrease in the number of births due to a predicted increase in the number of individuals utilizing
39

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 40 of 60
the objectionable services. The U.S. Government Mandate thus forces Plaintiffs to not only directly facilitate access to objectionable products and services, but also to participate in a Government scheme specifically designed to thwart the transmission of life contrary to Plaintiffs’ religious beliefs.
153. While Plaintiffs could theoretically drop their employees’ health care benefits to avoid providing objectionable drugs and services, to do so would subvert Plaintiffs’ mission of preserving the sanctity and dignity of human life.
154. Plaintiffs’ beliefs are deeply and sincerely-held. 155. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely-held religious beliefs prohibit—provide, pay for, and/or directly facilitate access to the objectionable services; or abandon their goal of preserving of their employees’ lives; or else incur crippling sanctions. 156. The U.S. Government Mandate therefore imposes a substantial burden on Plaintiffs’ religious beliefs.
(1) The Narrow “Religious Employer” Exemption 157. The U.S. Government Mandate’s exemption for “religious employers” does not alleviate the burden. 158. The “religious employer” exemption likely does not apply to Plaintiffs Catholic Charities and St. John School. 159. Additionally, the “religious employer” exemption does not work as the Government claims it will and instead seeks to divide the Catholic Church. For example, the exemption creates artificial distinctions between different schools within the Diocese. The high schools within the Diocese are not separately incorporated from the Diocese and therefore are exempt from the U.S. Government Mandate. However, the elementary schools are separately
40

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 41 of 60
incorporated and therefore, likely are not exempt from the U.S. Government Mandate. Yet, all of these schools are equally under the supervision of the Bishop and Diocese.
160. The Government relies on this formalistic distinction in determining that the high schools are “religious enough” to be exempt, while the elementary schools likely will not be exempt. There is no rational basis for treating these schools and their employees differently based merely on corporate structure.
161. In a hearing before the U.S. House of Representatives Committee on Ways and Means on February 28, 2012, Secretary Sebelius indicated that the “religious employer” exemption would apply to “church and church affiliates” as well as “to likely most parochial schools, many religious high schools.” In response to U.S. Congressman Patrick Tiberi’s question about how fines would be calculated for a specific religious employer, Secretary Sebelius responded: “I have no idea.” This further demonstrates that the Government lacks a rational basis for the distinctions that underlie its narrow “religious employer” exemption and that the Government did not adequately consider less burdensome alternatives when it did not even know the burdens it was imposing.
(2) The So-Called “Accommodation” 162. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to provide, pay for, and/or directly facilitate access to the objectionable products and services. 163. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the U.S. Government Mandate. 164. Starting July 1, 2014, Catholic Charities and St. John School will be forced directly to directly facilitate coverage of the objectionable services for their employees.
41

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 42 of 60
Moreover, the Bishop and the Diocese will be facilitating coverage of the objectionable services by operating and overseeing the Catholic Benefits Trust, which sponsors health plans for accommodated entities forced directly to comply with the U.S. Government Mandate, like Catholic Charities and St. John School. The Bishop will also be forced to directly facilitate coverage of the objectionable services in his role as Chairman of the Membership Board of Catholic Charities and as Trustee of St. John School.
165. The Bishop further will be directly facilitating coverage of the objectionable services for accommodated entities in his legal role as Trustee of the Diocese and also in his role as good shepherd and spiritual leader of the Catholic faithful in Southwestern Pennsylvania. The Bishop will be forced to appoint a Director to the Board of the Catholic Benefits Trust with the knowledge that the Director directly will facilitate coverage for the objectionable services for the employees of accommodated entities, such as Plaintiffs Catholic Charities and St. John School.
166. Although the Diocese is a “religious employer,” the U.S. Government Mandate still burdens its sincerely-held religious beliefs by requiring it either to (1) provide Plaintiffs Catholic Charities and St. John School and other affiliated Catholic organizations with insurance coverage for the objectionable services, (2) or else expel these affiliates from its Trust, thereby forcing them into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services. Expelling these accommodated entities would require significant restructuring of the Catholic Benefits Trust and would affect the pooling of resources which enables the Diocese to offer comprehensive and affordable health benefits.
167. Both of these alternatives violate the Diocese’s sincerely-held religious beliefs. 168. Participating in the accommodation will create significant administrative burdens on the Diocese by requiring it to: (1) offer coverage for exempt entities, which offer
42

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 43 of 60
contraceptive coverage when medically necessary as is consistent with Catholic beliefs and (2) offer coverage for accommodated entities which then have to comply with the U.S. Government Mandate in violation of Catholic beliefs. Administratively, the burdens of this coverage scheme are significant.
169. The so-called “accommodation” does not alleviate the burden on Plaintiffs’ sincerely-held religious beliefs.
170. Finally, Plaintiffs cannot avoid the U.S. Government Mandate without incurring significant fines. If Catholic Charities and St. John School keep their health plans but refuse to provide or directly facilitate the objectionable coverage, they can be subject to daily fines of $100 a day per affected beneficiary. The Diocese, as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust, could be held liable for any fines incurred by the Trust as a result of noncompliance with the U.S. Government Mandate. The fines therefore coerce Plaintiffs into violating their religious beliefs.
171. It is not an option for Catholic Charities and St. John School to eliminate their health plans since the Diocese and Bishop, who oversee these organizations, believe that health coverage is a basic human right which they must provide to their employees.
172. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
43

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 44 of 60
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability
173. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
174. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the government has admitted, while the numbers are expected to diminish over time, “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726, 41732 (July 19, 2010). Elsewhere, the government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, “191 million Americans belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
175. In addition, the U.S. Government Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religiousconscience rights of the narrow category of exempt “religious employers,” but not of Plaintiffs and other religious organizations that remain subject to the U.S. Government Mandate.
44

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 45 of 60
176. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” In addition, the U.S. Government Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
177. Internal HHS emails from January 2012 also suggest that Government officials were aware of widespread Catholic opposition to the U.S. Government Mandate. Specifically, internal emails indicate awareness that “the church is really mobilizing [Catholics] around this issue,” that the “issue is not going to go away,” and that “the pushback on this has been stronger than any of us anticipated. . . .” Despite this, the Government did nothing to address the concerns of religious groups that oppose the U.S. Government Mandate.
178. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
45

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 46 of 60
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
179. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
180. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely-held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
181. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
182. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide to the citizens of Western Pennsylvania. As President Obama acknowledged in his announcement of February 10, 2012,
46

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 47 of 60
religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
183. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the U.S. Government Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 184. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 185. On June 28, 2013, Defendants finalized the U.S. Government Mandate, including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the NPRM. By the terms of the Final Rule, Plaintiffs must comply with the U.S. Government Mandate by the beginning of the next plan year on or after January 1, 2014. 186. Plaintiffs’ next plan year begins on July 1, 2014. 187. Defendants have indicated that they intend to enforce the essential provisions of the U.S. Government Mandate that impose a substantial burden on Plaintiffs’ rights for Plaintiffs’ next plan year. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or directly facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs. 188. The U.S. Government Mandate is also harming Plaintiffs in other ways. 189. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their
47

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 48 of 60
employees. For example, an employer that is self-insured—like the Diocese—after consulting with its actuaries, must negotiate with its TPA.
190. Restructuring the Catholic Benefits Trust to expel nonexempt entities would be a significant and substantial administrative burden.
191. In addition, if Catholic Charities and St. John School do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties, which will in turn affect the Diocese, which is ultimately liable for fines incurred by entities within the Greensburg series of the Trust. Plaintiffs require time to budget for any such additional expenses.
192. Catholic Charities and St. John School are presently being forced to consider whether to: (1) drop their employee health plan in violation of Catholic beliefs; (2) offer coverage for the objectionable services in violation of Catholic beliefs; or (3) incur penalties for refusing to self-certify and offer the objectionable coverage.
193. Additionally, the U.S. Government Mandate will impact donations in that a significant numbers of donors give to Catholic Charities and St. John School because of their Catholic mission and will no longer donate if Catholic Charities and St. John School are forced to stray from that mission by providing coverage for the objectionable services.
194. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them. V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 195. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 196. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government
48

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 49 of 60
demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
197. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise.
198. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
199. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or directly facilitate access to products, services, practices, and speech that are contrary to their religious beliefs.
200. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
201. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
202. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
203. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
204. Plaintiffs have no adequate remedy at law. 205. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 206. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
49

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 50 of 60
207. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion.
208. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise.
209. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or directly facilitate practices and speech that are contrary to their religious beliefs.
210. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
211. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or directly facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
212. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
213. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
214. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
215. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
50

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 51 of 60
216. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
217. Plaintiffs have no adequate remedy at law. 218. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 219. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 220. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 221. The First Amendment protects organizations as well as individuals against compelled speech. 222. Expenditures are a form of speech protected by the First Amendment. 223. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 224. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or directly facilitate access to products and services that violate their religious beliefs. 225. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and directly facilitate education and counseling services regarding these objectionable products and services.
51

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 52 of 60
226. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees.
227. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or directly facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees.
228. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
229. The U.S. Government Mandate furthers no compelling governmental interest. 230. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 231. Plaintiffs have no adequate remedy at law. 232. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 233. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 234. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 235. The U.S. Government Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might
52

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 53 of 60
“influence,” “directly or indirectly,” the decision of a TPA to provide or procure contraceptive products and services to Plaintiffs’ employees.
236. Plaintiffs have no adequate remedy at law. 237. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 238. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 239. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others. 240. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition. 241. The “religious employer” exemption violates the Establishment Clause in two ways. 242. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not. 243. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational
53

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 54 of 60
features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion. Similar problems arise in evaluating whether an organization is an “integrated auxiliary,” an inquiry governed by Treasury Regulations that assesses, among other things whether an organization “shares common religious doctrines, principles, disciplines, or practices with a church,” or “receives more than 50% of its support” from non-church sources. See 26 C.F.R. § 1.6033-2(h).
244. Plaintiffs have no adequate remedy at law. 245. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 246. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 247. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 248. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.
54

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 55 of 60
249. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself.
250. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 251. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 252. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 253. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 254. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception. 255. The Diocese has further made the internal decision that its affiliated religious entities, including Catholic Charities, should offer their employees health-insurance coverage through the Catholic Benefits Trust, which allows the Diocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching. 256. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to directly facilitate practices that directly conflict with Catholic beliefs. 257. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to directly facilitate practices that directly conflict with their religious beliefs.
55

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 56 of 60
258. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
259. Plaintiffs have no adequate remedy at law. 260. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 261. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 262. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 263. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA. 264. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 265. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans
56

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 57 of 60
that include coverage for abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
266. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
267. The U.S. Government Mandate violates RFRA. 268. The U.S. Government Mandate violates the First Amendment. 269. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 270. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 271. Plaintiffs have no adequate remedy at law. 272. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Erroneous Interpretation of the Exemption with Respect to Multi-Employer Plans
273. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 274. The U.S. Government Mandate explicitly exempts “group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)” from “any requirement to cover contraceptive services.” 45 C.F.R. § 147.131(a).
57

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 58 of 60
275. In the ANPRM, Defendants acknowledged that the religious employer exemption was “available to religious employers in a variety of arrangements.” 77 Fed. Reg. at 16,502.
276. Specifically, Defendants indicated that a nonexempt entity could “provide[] health coverage for its employees through” a plan offered by a separate, “affiliated” organization that is a “distinct common-law employer.” Id.
277. In such a situation, Defendants stated that if the “affiliated” organization was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” Id.
278. This reading is consistent with the text of the regulation, which by its plain terms exempts “group health plan[s]” so long as they are “established or maintained by a religious employer.”
279. Nonetheless, when issuing the Final Rule, the Defendants reversed course, rejecting a “plan-based approach” and adopting an “employer-by-employer approach” whereby “each employer [must] independently meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed. Reg. at 39,886.
280. An employer-based approach contradicts the plain text of the regulation, which exempts “group health plan[s],” not individual employers.
281. The Diocese meets the U.S. Government Mandate’s definition of a religious employer, and therefore, the group health plan it has “established or maintained” is exempt from providing coverage for abortion-inducing products, sterilization, contraception, and related education and counseling.
58

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 59 of 60
282. The Defendants erroneous interpretation of the religious employer exemption, however, precludes the Diocese’s affiliated entities, including Plaintiff Catholic Charities, from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Diocese.
283. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
284. Plaintiffs have no adequate remedy at law. 285. Defendants’ erroneous interpretation imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was promulgated
in violation of the APA; 4. In the alternative, enter a declaratory judgment that Defendants have erroneously
interpreted the scope of the religious employer exemption, and that nonexempt organizations may obtain the benefit of the religious employer exemption if they provide insurance through a group health plan established and maintained by a religious employer. 5. Enter an injunction prohibiting the Defendants from enforcing the U.S. Government Mandate against Plaintiffs;
59

Case 2:14-cv-00681-AJS Document 1 Filed 05/27/14 Page 60 of 60
6. Enter an order vacating the U.S. Government Mandate; 7. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and 8. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 27th day of May, 2014.
/s/ John D. Goetz Paul M. Pohl (PA ID No. 21625) John D. Goetz (PA ID No. 47759) Leon F. DeJulius, Jr. (PA ID No. 90383) Ira M. Karoll (PA ID No. 310762) Mary Pat Stahler (PA ID No. 309772) JONES DAY 500 Grant Street – Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 (412) 394-7959 (fax) Counsel for Plaintiffs Most Reverend Lawrence E. Brandt, The Roman Catholic Diocese of Greensburg, Catholic Charities of the Diocese of Greensburg, and St. John the Evangelist Regional Catholic School
60

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

MOST REVEREND LAWRENCE E. BRANDT, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, ET AL.,

14cv0681 ELECTRONICALLY FILED

Plaintiffs,

v.

SYLVIA M. BURWELL, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

MEMORANDUM OPINION Before the Court is Plaintiffs’ Motion for Expedited Preliminary Injunction filed on May 30, 2014. Doc. no. 16. On June 3, 2014, the Court held a status conference with counsel for the Parties. Doc. no. 20. During this status conference, the Court noted – and Plaintiffs concurred – that the issue presented by Plaintiffs’ preliminary injunction had to be decided by June 30, or July 1, 2014. Id. at 5-6. Given the fast-approaching June 30-July 1, 2014 deadline, the Court asked Defendants (hereinafter “the Government”) if there would be any objection to the Court ruling on the Motion for Expedited Preliminary Injunction based solely upon a written record. Id. at 7. The Government indicated that it had no objection to deciding the Motion for Expedited Preliminary Injunction on the written record. Id. Finally, as a last order of business during this June 3, 2014 status conference, the Court and counsel for the Parties selected July 16 and 17, 2014, as the dates upon which a permanent injunction hearing would be held. Id.

Following the status conference, counsel for the Parties filed a Stipulation of Undisputed
Facts. Doc. no. 22. The Government’s Response to Plaintiffs’ Motion for Expedited
Preliminary Injunction was filed on June 10, 2014. Plaintiffs filed a Reply Brief on June 13,
2014.1 Doc. no. 23.
Now, upon review of the written record, and for reasons set forth in greater detail below,
the Court will grant Plaintiffs’ Motion for Expedited Preliminary Injunction.
I. Preliminary Injunction Standard
The primary purpose of a preliminary injunction is to maintain the status quo until a
decision on the merits of the case is rendered. Univ. of Texas v. Camenisch, 451 U.S. 390, 395
(1981). “Given this limited purpose, and given the haste that is often necessary if those positions
are to be preserved, a preliminary injunction is customarily granted on the basis of procedures
that are less formal and evidence that is less complete than in a trial on the merits.” Id.
“Four factors determine whether a preliminary injunction is appropriate: ‘(1) whether the
movant has a reasonable probability of success on the merits; (2) whether the movant will be
1 Counsel for the instant Parties have recently appeared before this Court in two other cases: Persico v. Sebelius, case no. 13-cv-303, and Zubik v. Sebelius, case no. 13-cv-1459. In both Persico and Zubik, counsel for the Plaintiffs filed Motions for Expedited Preliminary Injunction and the Court held evidentiary hearings on those Motions before issuing its Opinion and Order granting the preliminary injunctions in both cases. In Persico and Zubik, the Government did not oppose those Plaintiffs’ Motions for Permanent Injunction (which this Court then granted), however, the Government did appeal the Court’s decision to grant the permanent injunctions. The propriety of the Perisco and Zubik injunctions is currently pending before the United States Court of Appeals for the Third Circuit. The issue raised by the Persico and Zubik Plaintiffs in their Motions for Expedited Preliminary Injunction is the same issue raised by Plaintiffs in the instant case. In addition, the Persico and Zubik Plaintiffs were the Bishops of the Dioceses of Erie and Pittsburgh, the Dioceses of Erie and Pittsburgh, and the Catholic Church’s respective religious affiliated/related charitable and educational organizations within those Dioceses, making them identical in all but geography to Plaintiffs in this case. Thus, this Court and counsel for the instant Parties are familiar with the legal issues presented by this Motion for Expedited Preliminary Injunction as well as the application of the law to these particular Plaintiffs. Accordingly, counsel for the Parties were willing to enter into factual stipulations, allow the Court to decide the Preliminary Injunction on the written record, and schedule a permanent injunction hearing.
2

irreparably harmed by denying the injunction; (3) whether there will be greater harm to the nonmoving party if the injunction is granted; and (4) whether granting the injunction is in the public interest.’” B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 302 (3d Cir. 2013) (quoting Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252 (3d Cir. 2002)) (quoting Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170 (3d Cir. 2001)).
“A plaintiff seeking an injunction must meet all four criteria, as ‘[a] plaintiff’s failure to establish any element in its favor renders a preliminary injunction inappropriate.’” Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dept. of Health and Human Servs., 724 F.3d 377, 382 (3d Cir. 2013) (quoting NutraSweet Co. v. Vit–Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999)); accord, Duraco Prods., Inc. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1438 (3d Cir. 1994)( “The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.”).
As to the first criterion, the movant bears the burden of proving a reasonable probability of success on the merits. “[O]n an application for preliminary injunction, the plaintiff need only prove a prima facie case, not a certainty that he or she will win.” Highmark, 276 F.3d at 173, (citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.3 (Civil 2d ed. 1995)).
The second criterion requires the movant prove that “irreparable injury is likely in the absence of an injunction” – the mere “possibility” of such irreparable harm “is too lenient.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). “While the burden rests upon the moving party to make these [first] two requisite showings, the district court ‘should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.’” Acierno v. New
3

Castle County, 40 F.3d 645, 653 (3d Cir. 1994), (quoting Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919–20 (3d Cir. 1974)) (footnote omitted).
In order to satisfy the third criterion, this Court must find “that the party seeking the injunction would suffer more harm without the injunction than would the enjoined party if it were granted.” Pittsburgh Newspaper Printing Pressmen’s Union No. 9 v. Pittsburgh Press Co., 479 F.2d 607, 609 -610 (3d Cir. 1973). In Winter, the Supreme Court of the United States noted that although it did “not question the seriousness of [the movant’s] interests, . . . the balance of the equities and consideration of the overall public interest in this case tip[ped] strongly in favor of the [non-moving party].” 555 U.S. at 26. Thus, this criterion requires this Court to employ a balancing test that compares the harms the movant and non-movant would suffer and then weighs them to discern which party would be more greatly harmed by the Court’s grant or denial of the injunction.
The fourth and final criterion is closely tied to the third in that it requires this Court to determine if the public’s interest will be furthered or harmed by the issuance of a preliminary injunction. See Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F.Supp.2d 581, 597-98 (W.D. Pa. 2009) (“With regard to the public interest prong, the court finds that granting the temporary restraining order is in the public interest. The focus of this prong is ‘whether there are policy considerations that bear on whether the order should issue,’” (citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.4 (Civil 2d ed. 1995)). “‘The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision.’” Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 949 (3d Cir. 1982) (quoting Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972)).
4

II. Substance of Plaintiffs’ Motion for Expedited Preliminary Injunction Turning to the instant matter, Plaintiffs seek a preliminary injunction enjoining the
Government from enforcing 42 U.S.C. § 300gg-13(a)(4) – as further regulated by 45 C.F.R. § 147.130(a)(1)(iv) – as it applies to them and their group health plans. Plaintiffs represented to the Court that Plaintiffs’ applicable group health care plan needs to be renewed on or about June 30, or July1, 2014. See doc. no. 20, pp. 5-6, transcript of proceedings held on June 5, 2014. The renewed group health care plan will be subject to the aforementioned statute and regulation. Based on the filings in this case, such application of the law to the renewed health plans would essentially place Plaintiffs in a position where compliance with the aforementioned statute and regulation will cause them to violate their sincerely held religious beliefs; or, their conscience disregard of the statute and regulation will cause them to potentially incur large monetary fines and/or other penalties.
The statute at issue here – 42 U.S.C. § 300gg-13(a)(4) – is part of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (hereinafter “ACA”). Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered, non-exempt group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4).
In addition to the statute at issue here, there is a regulation which allows HRSA to “establish exemptions” from group health plans maintained by “religious employers” with
5

respect “to any requirement to cover contraceptive services[.]” See 45 C.F.R. § 147.130(a)(1)(iv)(A); see also Gilardi v. Dept. of Health and Human Svcs., 733 F.3d 1208 (C.A. D.C. 2013).
The issue before this Court is whether Plaintiff-Bishop Brandt, as Trustee of the Diocese of Greensburg, a Charitable Trust, and Plaintiff-Diocese of Greensburg, as the beneficial owner of Greensburg series of the Catholic Benefits Trust, which are exempt from the provisions of the ACA requiring employers to provide health insurance coverage for contraceptive products, services, and counseling (hereinafter “the contraceptive mandate”), are divisible from their nonprofit, religious affiliated/related charitable and educational organizations; and which, under the current provisions, will be compelled to facilitate/initiate coverage of contraceptive products, services, and counseling, beginning July 1, 2014, in violation of their sincerely-held religious beliefs.
Plaintiffs contend the contraceptive mandate, as applied via the “accommodation,” requires them to facilitate/initiate the process for providing health insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services (“contraceptive products, services, and counseling”). Per the “accommodation,” an organization must self-certify that it: (1) “opposes providing coverage for some or all of [the] contraceptive services”; (2) is “organized and operates as a nonprofit entity”; and (3) “holds itself out as a religious organization.” The organization must then provide a signed self-certification to its insurance company, or if self-insured, to its third party administrator (“TPA”). 26 CFR § 54.9815-2713A(a).
The Government counters that Plaintiffs cannot prevail on their Motion in the instant matter (1) for the same reasons set forth in its Opposition to the two Motions for Expedited
6

Preliminary Injunction in the Zubik and Persico cases, and (2) for a new reason (which the Court has termed the “self-insured church plan” reason, discussed infra.). The Court disagrees.
A. Uncontested Facts As noted above, the Parties stipulated to several facts. Doc. no. 22. Among these stipulated facts was a concession by the Government that Plaintiffs’ religious beliefs – as set forth in the written submissions proffered by Plaintiffs – are sincere. Doc. no. 22, ¶ 2. Although the Court carefully considered all of Plaintiffs’ sincerely-held religious beliefs as set forth in their submissions (see doc. nos. 17-3 to 17-7), because the Court writes primarily for the benefit of the Parties, only a few of those beliefs shall be reiterated herein as follows:
 Catholic religious teaching prohibits subsidizing, providing, and/or facilitating coverage for abortion-inducing drugs, sterilization services, contraceptives, and related counseling services. The term contraceptives refers to artificial contraceptives, as opposed to Natural Family Planning that is consistent with Catholic teachings. One of the central tenets of this system is belief in the sanctity of all human life from the moment of conception to natural death, and the dignity of all persons. Doc. no. 17-3, ¶ 12.
 One outgrowth of belief in human life and dignity is Plaintiffs’ well-established belief that “[h]uman life must be respected and protected absolutely from the moment of conception.” As a result, Plaintiffs believe that abortion is prohibited and that they cannot facilitate the provision of abortions. Doc. no. 17-3, ¶ 14.
 Furthermore, Plaintiffs adhere to Catholic teachings that prohibit any action which “render[s] procreation impossible” and which, more specifically, regard direct sterilization as “unacceptable.” Plaintiffs also believe that contraception is
7

immoral, and by expressing that conviction, they routinely seek to “influence” or persuade their fellow citizens of that view. Doc. no. 17-3, ¶ 15. In addition to stipulating to the sincerity of the above religious beliefs (as well as several others), the Government also stipulated to the following:  Consistent with Church teachings regarding the sanctity of human life, the Diocesan health plan excludes coverage for abortion-inducing drugs, sterilization services, contraceptives (except when used for non-contraceptive purposes), and related counseling services. Doc. no. 17-3, ¶ 16.  The regulations at issue in this lawsuit (the “Mandate”), require employers, on pain of substantial financial penalties, to directly facilitate access to abortioninducing drugs, sterilization services, contraceptives, and related counseling services through their employee health plans. Freedom of religion includes not just freedom to practice religion, but also freedom from coercion by civil authorities that would violate the principles adhered to by a religion. Doc. no. 173, ¶ 17.  It violates Plaintiffs’ religious beliefs to facilitate the objectionable coverage and services, even if Plaintiffs do not have to contract, arrange, pay, or refer for the objectionable coverage and services. Doc. no. 17-3, ¶ 19. B. Application of the Facts to the Law In light of these uncontested facts, the Court now considers the four criteria Plaintiffs must prove in order to obtain a preliminary injunction and, as set forth below in detail, concludes that Plaintiffs can meet each of the four criteria.
8

1. Likelihood of Success on the Merits a. Background
Plaintiffs’ Motion for Expedited Preliminary Injunction asks this Court to enjoin the issuance, application, and enforcement of a federal regulation, specifically 45 C.F.R. § 147.130(a)(1)(iv), arguing that they are likely to succeed on their RFRA and First Amendment claims.
Like Persico and Zubik, some of the Plaintiffs here are non-profit, religious affiliated/related entities which fail to meet the definition of a “religious employer” entitled to the “exemption.” As noted in this Court’s prior Opinion in Persico and Zubik, some nonprofit employers could receive an “accommodation,” provided those entities would self-certify that they were “eligible organizations,” and thereby avoid directly providing contraceptive products, services, and counseling.
In order to qualify for the religious employer “accommodation,” and thus avoid directly providing or paying for contraceptive products, services, and counseling through their own health plans, Plaintiffs in this cases must self-certify (in a form and manner specified by the Secretary), that they: (1) oppose providing such contraceptive coverage on account of their religious objections; (2) are organized and operate as nonprofit entities; and (3) hold themselves out as a religious organization. See 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. “The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.” Id.
9

In the Persico and Zubik cases, this Court found as fact that Plaintiffs’ self-certification forms must be executed by the Bishop for the Diocese of Erie (with respect to the Erie Plaintiffs in 13-cv-303), and by the Bishop for the Diocese of Pittsburgh (with respect to the Pittsburgh Plaintiffs in 13-cv-1459), or executed at their directive. Here, the same is true for the Bishop for the Diocese of Greensburg. Doc. no. 17-3, ¶¶ 29-30.
b. Substantial Burden under RFRA Plaintiffs contend here, as they did in Persico and Zubik, that by requiring selfcertification and thereby facilitating or initiating the process of providing contraceptive products, services, and counseling, via a third party, the “accommodation,” violates their rights under the RFRA. The RFRA provides, in pertinent part, as follows:
(a) In general Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C.A. § 2000bb-1. The Government – by adopting its prior arguments in the Persico and Zubik cases –
essentially argues that the “accommodation” merely requires the Greensburg Bishop (or his
10

designee) to sign a self-certification form on behalf of the respective nonprofit, religious affiliated/related entities, and thus, does not rise to the level of a “substantial burden,” as that term has been defined in connection with the RFRA.
Given the Government’s concessions that: (1) Plaintiffs’ beliefs are sincerely held, and (2) it violates Plaintiffs’ religious beliefs to facilitate the objectionable coverage and services, even if Plaintiffs do not have to contract, arrange, pay, or refer for the objectionable coverage and services, the Court disagrees with the Government that Plaintiffs’ ability or inability to merely sign a piece of paper (meaning, the self-certification form), does not impart a substantial burden under the RFRA upon the instant Plaintiffs.
Accordingly, for the same reasons set forth in pages 48 though 53 of its Opinion in Persico and Zubik (doc. nos. 75 in both cases), the Court concludes that the religious employer “accommodation” places a substantial burden on Plaintiffs’ right to freely exercise their religion – specifically, their right to not facilitate or initiate the provision of contraceptive products, services, or counseling.
c. Compelling Governmental Interest and Least Restrictive Means under the RFRA Again, because the Court writes primarily for the benefit of the Parties and because the Parties have in essence adopted their prior arguments set forth in detail in Persico and Zubik, as they relate to these sub-issues, the Court likewise adopts its analysis and rationale from those cases. Accordingly, the Court will conclude as it did in Persico and Zubik, that: (1) the Government, here, has failed to establish that its governmental interests are “of the highest order” such that “those not otherwise served can overbalance legitimate claims to the free exercise of religion” Yoder, 406 U.S. at 215; and (2) the Government failed to prove that it utilized the least restrictive means of advancing its interests.
11

d. Conclusion – Likelihood of Success Based on the foregoing analysis, the Court finds that Plaintiffs are likely to succeed on the merits, and thus, they have met the first element of the preliminary injunction test.
2. Irreparable Harm to Plaintiffs In the context of a preliminary injunction, irreparable harm is harm that cannot be adequately compensated at a later date in the ordinary course of litigation. Acierno v. New Castle Cnty. 40 F.3d 645, 653 (3d Cir. 1994) (In general, to show irreparable harm a plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.) The Supreme Court of the United States has held “[t]he loss of First Amendment freedoms,” which implicates the Free Exercise Clause as protected by the RFRA, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). In this case, Plaintiffs need to decide by June 30, or July 1, 2014, whether to sign the selfcertification form, thereby violating their sincerely-held religious beliefs. Plaintiffs could, alternatively, decline to sign the form and face potentially large penalties. In addition, this Court notes that the United States District Court for the Western District of Oklahoma recently relied upon the Hobby Lobby decision for the proposition that “establishing a likely RFRA violation satisfies the irreparable harm factor.” See Catholic Benefits Association LCA, et al. v. Sebelius, case no. 14-cv- 240-R, (W.D. Ok. decided June 4, 2014). This Court in the Persico and Zubik cases did not rely on the Hobby Lobby proposition to establish that Plaintiffs met their burden of proving the irreparable harm factor. In Persico and Zubik, this Court conducted a preliminary hearing whereby testimony was proffered (and deemed credible) that irreparable harm would indeed ensue.
12

Here, because this Court is ruling strictly on the written submissions of Plaintiffs, and because the Government has stipulated that the case is factually identical in all material respects to Persico and Zubik,2 the Court concludes that Plaintiffs may opt to continue to provide health coverage to their employees, but opt to conscientiously object to the contraceptive mandate and the “accommodation” by refusing to sign the self-certification form, thereby potentially suffering penalties which could negatively impact Plaintiffs. Furthermore, the Court concludes that the Plaintiffs provide services to individuals who depend upon them for food, shelter, educational, and other basic services. The harm to Plaintiffs, and the ripple effect of that harm impacting members of the public who depend upon Plaintiffs for food, shelter, educational, and other basic services, is such that Plaintiffs could never be adequately compensated at a later date in the ordinary course of this litigation.
Thus, the Court concludes Plaintiffs stand to suffer irreparable harm if the injunction is not granted.
3. Greater Harm to the Government and the Public Interest The Government’s stated interests – which the Government classifies as “the balance of the equities” and “the public interest” – are similarly insufficient to outweigh the harm faced by Plaintiffs. See doc. no. 23, pp. 6-8. Because the Government has stipulated that the case is factually identical in all material respects to Persico and Zubik, the Court concludes that the harm to the Government is outweighed by the harm to the Plaintiffs at this juncture. In addition, the Court concludes that keeping the Parties at status quo at this point in time is best for the Parties as well as the public. The Court’s decision in this case to quickly move for a permanent injunction hearing – which, as noted above, has been scheduled for July 16 and 17, 2014 – will enable this Court to 2 See doc. no. 22, ¶ 5.
13

revisit all issues presented in a thoughtful and orderly manner. Accordingly, the Court concludes that granting the preliminary injunction furthers the public interest. It is in the public best interest to have the issues and evidence presented herein and considered in a thoughtful and orderly manner by way of a permanent injunction hearing. Moreover, by entering a preliminary injunction and preserving the status quo, the Court will prevent any reduction in the public services provided by Plaintiffs which thereby serves the best interests of the public.
C. The Government’s “New” Argument in Opposition to a Preliminary Injunction As this Court noted at the beginning of this Opinion (see pp. 6-7, infra.), the Government contends that Plaintiffs “may offer a self-insured ‘church plan’ to their employees.” Doc. no. 23, p. 2. The Government concedes that Plaintiffs’ documents currently before this Court fail to provide any indication of such a self-insured church plan. Id. The Government also concedes that there was no such indication of a self-insured church plan in either the Persico or Zubik cases. Id. In support of its “self- insured church plan” contention, the Government relies on filings from a United States District Court case for the Eastern District of Montana, where the plaintiffs in that case – who were represented by the same law firm that is representing the instant Plaintiffs – declared that all Catholic entities participate in “church plans.” Id. The Government explains its belief in the importance of this representation contending that it “lacks regulatory authority to require third-party adminstrators (“TPAs”) of self-insured church plans to make the separate payments for contraceptive services for participants and beneficiaries in such plans under the challenged accommodations.” Id. at 3. The Government argues that if all Catholic entities participate in “self-insured church plans,” Plaintiffs’ request for an the instant injunction
14

would necessarily be rendered moot – or would have to be denied – because Plaintiffs will not be able to establish an injury in fact. Id. at 2.
The Government indicates that when it attempted to get an admission from Plaintiffs’ counsel with respect to this declaration, counsel for the instant Plaintiffs refused to take a position with respect to the specific health insurance plan at issue in this case. Id.
The Court declines to address this “self-insured church plan” argument raised by the Government at this juncture of the proceedings because: (1) as indicated above, the Court is deciding the instant Plaintiffs’ Motion for Expedited Preliminary Injunction solely upon the written record presented here; (2) the only facts before this Court are the facts of this case; (3) at this juncture of the proceedings no facts have been presented to this Court related to this “new” issue – i.e., the existence of a self-insured church plan, and the legal implications, if any, of such a self-insured church plan on the challenged statute and regulation – being raised by the Government, and (4) this Court cannot consider factual assertions raised in the United States District Court for the Eastern District of Montana for purposes of adjudicating the instant motion.3
III. Conclusion The Court concludes that Plaintiffs have met their burden of proving all four criteria of the
preliminary injunction test under the RFRA, and thus, for the reasons set forth herein, Plaintiffs’ Motions for Expedited Preliminary Injunction will be GRANTED. As noted above, the Court declines to address the “new” issue raised by the Government at this juncture due to the lack of any
3 The Court is very interested in this issue, however, and will certainly entertain any factual assertions established by any Party related to this new argument during the permanent injunction hearing, scheduled for July 16-17, 2014.
15

facts present in this case upon which this Court could render a conclusion of law. An appropriate Order of Court will follow.
s/ Arthur J. Schwab Arthur J. Schwab United States District Judge cc: All Registered ECF Counsel and Parties
16

 
 Case 2:14-cv-00681-AJS Document 27 Filed 06/20/14 Page 1 of 2

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

MOST REVEREND LAWRENCE E. BRANDT, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, ET AL.,

14cv0681 ELECTRONICALLY FILED

Plaintiffs,

v.

SYLVIA M. BURWELL, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

ORDER OF COURT Upon consideration of Plaintiffs’ Motion for Expedited Preliminary Injunction (doc. no. 16), their brief and affidavits in support, the Government’s brief in opposition, the Parties’ Stipulation of Undisputed Facts, and for the reasons set forth in the preceding Memorandum Opinion, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Expedited Preliminary Injunction is GRANTED; IT IS FURTHER ORDERED that Defendants, their agents, officers, and employees, are hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.C. § 300gg13(a)(4) and as further regulated by 45 C.F.R. §147.130(a)(1)(iv) upon the Plaintiffs; IT IS FURTHER ORDERED that the preliminary injunction hereby granted shall remain in effect until this Court makes a full determination on the merits of this case, or the United

Case 2:14-cv-00681-AJS Document 27 Filed 06/20/14 Page 2 of 2
States Supreme Court or the United States Court of Appeals for the Third Circuit renders a decision on the merits of this case;
IT IS FURTHER ORDERED that Defendants shall send Notice of this preliminary injunction to Plaintiffs’ Third Party Administrators, on or before June 30, 2014;
IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate; and finally,
IT IS FURTHER ORDERED that a Permanent Injunction Hearing is hereby scheduled for July, 16, 2014 at 8:15 a.m. in Courtroom 7C before The Honorable Arthur J. Schwab.
SO ORDERED, this 20th day of June, 2014. s/ Arthur J. Schwab Arthur J. Schwab United States District Judge
cc: All Registered ECF Counsel and Parties

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

MOST REVEREND LAWRENCE E. BRANDT, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, ET AL.,

14cv0681 ELECTRONICALLY FILED

Plaintiffs,

v.

SYLVIA M. BURWELL, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

MEMORANDUM OPINION RE: PLAINTIFFS’ MOTION FOR A PERMANENT INJUNCTION
I. Introduction Within the past year, this Court has had the opportunity to consider arguments associated
with injunctions filed in two other cases brought by substantially similar Plaintiffs against the same Government Defendants. See Most Reverend David A. Zubik et. al v. Secretary of the U.S. Dept. of Health and Human Services, et. al. (case no. 13cv1459) (“the Zubik case”), and Most Reverend Lawrence T. Persico et. al v. Secretary of the U.S. Dept. of Health and Human Services, et. al. (case no. 13cv303) (“the Persico case”). The instant case, like the Zubik and Persico cases, challenges the application of the Patient Protection and Affordable Care Act (“ACA”). Specifically, the issue before this Court is whether the Diocese of Greensburg, which is exempt from the provisions of the ACA requiring employers to provide health insurance

coverage for contraceptive products, services, and counseling (“the contraceptive mandate”), is divisible from its nonprofit, religious affiliated/related charitable and educational organizations which, under the current provisions, are compelled to facilitate/initiate coverage of contraceptive products, services, and counseling via the “accommodation.”
On May 27, 2014, Plaintiffs in this case: Most Reverend Lawrence E. Brandt, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, the Roman Catholic Diocese of Greensburg as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust, Catholic Charities of the Diocese of Greensburg, and St. John the Evangelist Regional Catholic School filed a Complaint, in which they assert eight cases of action against Defendants: United States Departments of Health and Human Services (“HHS”), Labor, and the Treasury and their respective Secretaries. On May 30, 2014, Plaintiffs filed a Motion for Expedited Preliminary Injunction, which this Court granted, thereby enjoining Defendants from enforcing the contraceptive mandate, as codified in 45 C.F.R. 147.130(a)(1)(iv). See doc. nos. 16, 27. The Court immediately scheduled a permanent injunction hearing.
Plaintiffs contend that the contraceptive mandate, as applied via the “accommodation,” requires them to facilitate/initiate the process of providing health insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services (“contraceptive products, services and counseling”).1
Plaintiffs allege that they must comply with the contraceptive mandate by July 1, 2014, or face substantial penalties. See doc. no. 1, ¶ 186. Plaintiffs also allege that their compliance with the contraceptive mandate, via the “accommodation” would require them to facilitate/initiate the
1 As stated above, the Diocese of Greensburg – like all other Roman Catholic Dioceses – as a “religious employer,” is exempt from the contraceptive mandate.
2

process through which contraceptive products, services, and counseling would be provided to their employees and thereby violate their fundamental religious rights and liberties in violation of the Religious Freedom Restoration Act (“RFRA”) and the First Amendment to the United States Constitution.
Having previously issued a preliminary injunction in this case (as well as preliminary and permanent injunctions in the prior two issue-identical cases, which involved similar facts – including the same religious tenets – the same excellent counsel, the same causes of action advanced against the same Defendants, the same legal tests, and having heard the substantially same arguments from the Parties), this Court will endeavor to adopt by reference substantial, relevant portions its prior Zubik and Persico Opinions, when appropriate, for brevity and consistency.
After careful consideration of the Plaintiffs’ request for a permanent injunction, the Parties’ submissions, the testimony presented during an evidentiary hearing, the hearing exhibits, and the Parties’ oral arguments, the Court will issue a permanent injunction for the reasons more fully set forth herein.
II. Findings of Fact 2 A. Plaintiffs Plaintiffs in this case are: (1) Reverend Lawrence E. Brandt, Bishop of the Roman
Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust (“the Bishop” or “Bishop Brandt”), (2) the Roman Catholic Diocese Of Greensburg as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust (the
2 Unless otherwise indicated, these Findings of Fact are based upon credibility determinations the Court has made based upon the Court’s observation of the witnesses’ and their testimony.
3

“Diocese” or “ the Diocese of Greensburg”), (3) Catholic Charities Of The Diocese Of Greensburg (“Catholic Charities”), and (4) St. John the Evangelist Regional Catholic School (“St. John’s School”).
Plaintiffs are inter-related through their affiliation with the Roman Catholic Church and their sincerely-held religious beliefs and mission. Bishop Brandt is the spiritual leader of the Diocese of Greensburg and is responsible for the spiritual, charitable, and educational arms of that Diocese. Catholic Charities is a nonprofit corporation affiliated with the Diocese of Greensburg with a principal place of administration in Greensburg, Pennsylvania. St. John’s School is a nonprofit corporation affiliated with the Diocese of Greensburg with a principal place of business in Uniontown, Pennsylvania. The Diocese of Greensburg, Catholic Charities, and St. John’s School are organized exclusively for the charitable, religious and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Doc. no. 1, ¶¶ 9-12.
B. Plaintiffs’ Irreparable Injury 1. Injury to the Diocese
The Parties filed “Stipulations to Undisputed Fact” and “An Additional Stipulation to Undisputed Fact,” all of which the Court accepts as true and incorporates as part of its own factual findings. See doc. nos. 22, 29. The first undisputed and relevant fact is the Diocese of Greensburg provides health insurance coverage to the employees of its nonprofit, religious affiliated/related entities (such as Catholic Charities and St. John’s School), which are directed by the Diocese to implement the spiritual, charitable, and education mission of the Diocese.
Based up on the credible testimony of Bishop Brandt, as Trustee for the Plaintiff nonprofit, religious affiliated/related organizations, the practical results of the application of the
4

contraceptive mandate, via the “accommodation,” would be that the Diocese would be required to either:
(a) provide its nonprofit, religious affiliated/related organizations with a separate insurance policy that covers contraceptive products, services, and counseling (which the Diocese refuses to do, according to the hearing testimony) (doc. no. 1, ¶ 117-119, 126, 132, 168); or (b) decline to continue offering health coverage to their nonprofit, religious affiliated/related organizations, which would force the nonprofit, religious affiliated/related organizations to enter into their own arrangements with a health insurance provider that would arrange no-cost coverage of contraceptive products, services, and counseling. Hearing Testimony, Bishop Brandt, doc. no. 40, pg. 43-44; Barbara Sabo, doc. no. 40, p. 58-59.
Simply stated, the Court finds that the contraceptive mandate would be unequally applied to Plaintiffs and would result in a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations that fulfill portions of the Diocese’s mission.
2. Injury as to Nonprofit, Religious Affiliated/Related Organizations Based upon the credible testimony of Monsignor Raymond E. Riffle (Managing Director of Catholic Charities of the Diocese of Greensburg) and Christine Roskovensky (Principal of St. John’s School), their respective declarations, and the Stipulations of the Parties (doc. nos. 22 and 29), the nonprofit, religious affiliated/related organizations expelled from a Diocese’s health plan would be forced to choose one of the following courses of action: (a) purchase health insurance coverage that includes contraceptive products, services, and counseling which would violate Catholic Charities’ and St. John’s School’s sincerely-held
5

religious beliefs, according to the trial testimony. Cardinal Dolan Deposition3 pg. 25, lines 15-19,
23-25, pg, 26, lines 1-12;
(b) provide a self-certification to their third-party administrator (“TPA”), thus
facilitating/initiating the process by which the TPA will obtain coverage for the contraceptive products, services, and counseling for the organizations’ employees (“the accommodation”4)
which the Bishop would refuse to permit. Plaintiffs’ Exhibit 10 “Self- Certification Form”; doc.
no. 1 ¶ 151;
(c) drop health insurance coverage for employees (i.e., fail to offer “full-time employees
(and their dependents) the opportunity to enroll in minimum essential coverage under an eligible
employer-sponsored plan”) (i.e., comprehensive coverage)), and be subject to annual fines of
$2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1); or
(d) purchase health insurance coverage for full-time employees without contraceptive
products, services, and counseling, and potentially be subject to a tax penalty of $100 per day per affected beneficiary.5 See 26 U.S.C. § 4980D(b); and Doc. no. 1, ¶ 170.
Any of these courses of action would harm the Diocese and their nonprofit, religious
affiliated/related charitable and educational organizations. Potential effects of imposition of
fines include: decreased donations, loss of employees to other employers, loss of services, and
3 Cardinal Dolan’s testimony was presented (and admitted into evidence) at the July 18, 2014 injunction hearing via deposition transcript which had been recorded on November 7, 2013, in New York City, New York in connection with the Zubik and Persico cases. See Plaintiffs’ Exhibit 1, doc. no. 39-1. 4 Per the “accommodation,” the organization must self-certify that it: (1) “opposes providing coverage for some or all of [the] contraceptive services”; (2) is “organized and operates as a nonprofit entity”; and (3) “holds itself out as a religious organization.” The organization must then provide a signed selfcertification to its insurance company, or if self-insured, to its TPA. 26 CFR § 54.9815-2713A(a). 5 In the Zubik and Persico cases, the Parties stipulated that “it is not possible to determine the exact amount of tax Plaintiffs could be assessed under this penalty.” Persico, 13-cv-303, doc. no. 58; Zubik, 13cv-1459, doc. no. 59.
6

such fines may “close [the organizations’] doors, denying thousands in the local community its charitable services.” Declaration of Monsignor Riffle (Plaintiffs’ Exhibit 22), ¶¶ 35-36; Declaration of Christine Roskovensky (Plaintiffs’ Exhibit 23), ¶¶ 26-27. During the Injunction Hearing, credible testimony was presented that fines related to the contraceptive mandate will compel Plaintiff nonprofit, religious affiliated/related organizations to limit services or close. Hearing Testimony, Bishop Brandt, pg. 44; Monsignor Riffle, pg. 85.
Currently, Plaintiffs are experiencing and may continue to experience increased administrative burdens, lost personnel hours, and the fear of increased insurance premiums. Deposition of Cardinal Timothy Michael Dolan (Plaintiff’s Exhibit 1), pg. 40, lines 22-25, pg. 41, 1-7.
Failure to comply with the contraceptive mandate would also expose the organizations, and ultimately the Diocese, to civil actions by ERISA-covered plan participants for unpaid benefits, and enforcement actions by the Secretary of Labor. See 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(5), and 1132(b)(3). The Secretary of HHS may impose a civil monetary penalty for failure to provide certain required coverage. 42 U.S.C. § 300gg-22(b)(2)(C)(i). Failure to pay levied fines would subject Plaintiffs to additional fines and potential property liens. See 26 U.S.C. §§ 6321, 6672.
C. The Organization and Religious Mission of the Diocese 1. Organization of the Diocese
Bishop Brandt, in in his capacity as Bishop and Trustee of the Diocese of Greensburg, manages 78 parishes and their charitable trusts. Doc. no. 1, ¶ 24. The Diocese provides services throughout four counties in Southwestern Pennsylvania – Armstrong, Fayette, Indiana, and Westmoreland – including a Catholic population of approximately 153,000 people. Id. Bishop
7

Brandt oversees the “multifaceted” mission of spiritual, educational, and social service to residents of the Diocese and specifically oversees the mission of social service in his role as Chairman of the Membership Board of Catholic Charities. Id.
2. Religious Mission of the Diocese includes Good Works Plaintiffs sincerely believe that religious worship, faith, and good works are essential and integral components of the Catholic faith and constitute the core mission of the Catholic Church. Hearing testimony of Bishop Brandt, p. 23 (“. . .the service of charity in the [C]hurch is a constitutive element of the [C]hurch’s mission.”). “The Church’s deepest nature is expressed in her three-fold responsibility: of proclaiming the word of God (kerygma-martyria), celebrating the sacraments (leitourgia), and exercising the ministry of charity (diakonia). These duties presuppose each other and are inseparable.” Plaintiff’s Exhibit 4, “Apostolic Letter Issued ‘Motu Proprio’ on the Supreme Pontiff Benedict XVI on the Service of Charity,” pg. 1; and Plaintiff’s Exhibit 1, Cardinal Dolan Deposition, pg. 36, lines 1-36, pg. 38, lines 11-13 (“That’s your daily life. That’s everything we do, dream, believe, breathe, wake, sleep, is our – is our faith.”). D. Nonprofit Religious Affiliated/Related Organizations Charitable and
Educational Organizations of the Diocese 1. Role of the Bishop in the Organizations As the head of the Diocese of Greensburg, Bishop Brandt carries out the “good works” of the Catholic Church through: educating children regardless of their religion, promoting spiritual growth (including conducting religious services, operating seminaries, and hosting religious orders), and providing community service to others regardless of the recipient’s religion or other factors. Doc. No. 1, ¶ 24-26; Plaintiffs’ Exhibit 25, ¶ 2. “[T]he Bishops, as successors of the
8

Apostles, are charged with primary responsibility for carrying out in the particular Churches the service of charity[]; . . . [T]he duty of charity [is] a responsibility incumbent upon the whole Church and upon each Bishop in his Diocese . . . .” Plaintiffs’ Exhibit 4, pg. 1. Bishops have a duty to prevent parishes and “diocesan structures” from taking actions at odds with the Church’s teachings. Plaintiffs’ Exhibit 4, Article 9, § 3 (“It is the duty of the diocesan Bishop and the respective parish priests to see that in this area the faithful are not led into error or misunderstanding; hence they are to prevent publicity being given through parish or diocesan structures to initiatives which, while presenting themselves as charitable, propose choices or methods at odds with the Church’s teaching.”). Bishops are also responsible for “ensur[ing] that in the activities and management of these activities, the norms of the Church’s universal, and particular law are respected, as well as the intentions of the faithful who made donations or bequests for these specific purposes.” Plaintiffs’ Exhibit 4, Article 4, § 3.
2. Catholic Schools Education is an integral component of the Catholic faith. Doc. no. 1, ¶ 26. Hearing testimony, Bishop Brandt, pg. 26 (“[The Church operates these Catholic schools] [b]ecause there again, it’s part of our mission, our mission to teach.”) The Diocese of Greensburg runs, organizes, and supervises approximately two high schools, two junior high schools , thirteen elementary schools, and various preschool programs. Doc. no. 1, ¶ 26. These schools educate approximately 2,800 students. Id. These schools are open to and serve all children, without regard to the students’ religion, race, or financial condition. Doc. no. 1, ¶ 27. The elementary schools within the Diocese are not exclusive to Catholics, and approximately 60 percent of the students at Holy Trinity School identify themselves as non-
9

Catholic and 40 percent of the students at Conn-Area Catholic School and the Cardinal Madia Academy identify themselves as non-Catholic. Doc. no. 1 ¶ 29. The contraceptive mandate, as applied via the “accommodation” and the “exemption,” will result in elementary schools within the Diocese being treated differently – certain elementary schools within the Diocese will be exempt from compliance with the regulations, while others will not. Doc. no. 1, ¶ 30.
St. John’s School is a Catholic elementary school in Uniontown, Pennsylvania that offers education for preschool through eighth grade. Doc. no. 1, ¶ 68. The “primary purpose” of St. John’s School is to provide a school environment based on the values of the Catholic faith and “is an extension of the Diocese of Greensburg in educating and reinforcing the Catholic faith.” Plaintiffs’ Exhibit 23, Declaration of Christine Roskovensky, ¶ 7. Theology classes are held daily and are part of the age-appropriate curriculum in all grades at St. John’s School. Id. Students participate in: daily prayer, seasonal devotions, sacramental preparations, Mass, service projects throughout the school year, which are also important parts of the Catholic curriculum provided by St. John’s School. Id., ¶¶ 8-9.
St. John’s School is a charitable trust affiliated with the Diocese of Greensburg and its employees are insured under the Diocesan health plan. Doc. no. 1, ¶¶ 75, 77. The Bishop, in his role as trustee of St. John’s School, and the Diocese directly oversee the governance of St John’s School. Doc. no. 1, ¶ 77. St. John’s School is not exempt from the contraceptive mandate because it is not an “integrated auxiliary” under the definition in 26 C.F.R. § 1.6033-2(h), and thus, does not qualify as a “religious employer” under the exemption to the contraceptive mandate. Doc. no. 1, ¶ 76.
10

3. Social Service Organizations Providing social services to others is a central tenet of the Catholic faith. Hearing Testimony, Monsignor Riffle, pg. 64-65, lines 24-25, 1-10. These “good works” are integral to the practice of the Catholic faith. Hearing Testimony, Bishop Brandt, pg. 10-11 (“ . . . we are charged to have the faith and then to take that faith out of the church and live it by translating it into good works, into service for others; not just for Catholics, but also for everyone.”). Organizations that provide social services must be provided in conformity with the Catholic faith. Hearing Testimony, Bishop Brandt, pg. 21-22, lines 19-4 (“These organizations must be administered consistent with the tenets of the Catholic Church.”). Consistent with the tenet of providing social services to the community at large, Catholic Charities is the primary social service agency of the Diocese of Greensburg and provides social services to the residents of its four-county community. Hearing Testimony, Monsignor Riffle, pg. 65, lines 13-16. These services are provided without regard to national origin, race, color, sex, religion, age, or disability. Id. Catholic Charities provides counseling services, adoption services, foster care services, and material assistance, among other services to the community. Hearing Testimony, Monsignor Riffle, pg. 65, lines 19-23. The material assistance services respond to about 180 telephone calls per day for food, clothing, diapers, shelter, and fuel for both for automobile and home. Hearing Testimony, Monsignor Riffle, pg. 66-67, lines 21-25, 1-3. Catholic Charities assists thousands of people annually. Hearing Testimony, Monsignor Riffle, pg. 67, lines 17-19.
11

E. Plaintiffs’ Employee Health Insurance Coverage 1. Religious Components of Employee Health Care
The sanctity of human life from conception to natural death and the dignity of all persons are central tenets of the Catechism of the Catholic Church. Hearing Testimony, Bishop Brandt, pg. 10, lines 13-17. The Catholic Church believes that health care is a basic right because of the sanctity and dignity of human life. See Cardinal Dolan Deposition (Plaintiffs’ Exhibit 1, doc. no. 39-1), pg. 28, lines 19-23; Hearing Testimony, Bishop Brandt, pg. 27, lines 10-18.
The Catholic Church also believes that contraception and abortion are prohibited, and Catholics cannot facilitate/initiate, directly or indirectly, the provision of abortions. Cardinal Dolan Deposition (Plaintiffs’ Exhibit 1, doc. no. 39-1), pg. 12, lines 11-16 (Abortion-inducing drugs, sterilization and contraceptives “are intrinsically evil.”); Plaintiffs’ Exhibit 3, “Ethical and Religious Directives for Catholic Health Care Services, United States Conference of Catholic Bishops November 17, 2009,” ¶¶ 45, 52 (“Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implementation of the embryo. Catholic health care institutions are not to provide abortion services, even based upon the principle of material cooperation. In this context, Catholic health care institutions need to be concerned about the danger of scandal[ 6] in any association with abortion providers.”).
This belief necessarily prohibits providing, subsidizing, initiating, or facilitating insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related 6 Per testimony, “scandal,” within the Catholic faith, means cooperating with an objectionable practice that goes against the faith, or “teaching one thing and behaving in another manner.” Hearing Testimony, Bishop Brandt, pg. 35, lines 20-23.
12

educational and counseling services. Declaration of Monsignor Larry Kulick, doc. no. 17-3, ¶¶ 12-16 (“One outgrowth of belief in human life and dignity is Plaintiffs’ well-established belief that “[h]uman life must be respected and protected absolutely from the moment of conception . . . .” Furthermore, Plaintiffs adhere to Catholic teachings that prohibit any action which “render[s] procreation impossible” and which, more specifically, regard direct sterilization as “unacceptable.”); Plaintiffs’ Exhibit 3, doc. no. 39-3, pg. 28, ¶ 52 (“Catholic health institutions may not promote or condone contraceptive practices but should provide, for married couples and the medical staff who counsel them, instruction both about the Church’s teaching on responsible parenthood and in the methods of natural family planning.”).
2. Diocese of Greensburg and the Catholic Benefits Trust The Diocese of Greensburg operates a self-insured health plan through the insurance obtained through the Catholic Benefits Trust (“Trust”). Complaint, doc. no. 1, ¶ 33; and Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The Trust was formed in June 2013 by an agreement between the Diocese of Greensburg, the Diocese of Altoona-Johnstown, and the Diocese of Pittsburgh (the “Trust Agreement”), in an effort to pool resources with regard to health benefits. Id. The Trust was formed by the Diocese of Pittsburgh converting its Catholic Employers Benefits Plan Delaware Trust to a Delaware statutory trust and expanding the Trust to include the Dioceses of Altoona-Johnstown and Greensburg. Id. The three Dioceses are the Beneficial Owners of the Trust, which is split into three series: the Greensburg series, the Altoona-Johnstown series, and the Pittsburgh series. Complaint, doc. no. 1, ¶ 34; Stipulation to Undisputed Facts, doc. no. 22, ¶1. Each Diocese is the sole “Beneficial Owner” and sole beneficiary of its respective series. Id. Thus, Plaintiff Diocese of
13

Greensburg is the sole Beneficial Owner and sole beneficiary of the Greensburg series of the Trust. Id.
The Trust functions as the insurance company underwriting the covered employees’ medical costs with all funding coming from each respective Diocese and its covered affiliates. Complaint, doc. no. 1, ¶ 36; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. Approximately 600 employees at the Diocese of Greensburg and its “various related affiliated entities” are eligible for health coverage through the Trust. Complaint, doc. no. 1, ¶ 39; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. Of those 600 employees, approximately 400 employees participate and thus, the total number covered by the Trust plan amounts to 800 – when dependants of covered employees are included in the count. Id.
The health care plan offered through the Catholic Benefits Trust is administered by TPAs. Complaint, doc. no. 1, ¶ 37; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The Trust offers two health plan options (“lay basic” and “lay premium”) for the employees of the Diocese of Greensburg itself, Catholic Charities, and all other Diocesan-affiliated entities within the Diocese such as St. John’s School. Complaint, doc. no. 1, ¶¶ 38, 41; Declaration of Charles Quiggle7, doc. no. 17-6, ¶ 6; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.
Consistent with the teachings of the Catholic Church, all of the Diocesan employee health plan and prescription options offered through the Trust, including those for its nonprofit, religious affiliated/related organizations, such as Catholic Charities, do not include coverage for abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary. Declaration of Charles Quiggle, doc. no. 17-6, ¶ 9; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. 7 Mr. Quiggle is the Director of Human Services for the Diocese of Greensburg, and has been since August 28, 2000.
14

The Diocesan health plans offered to lay employees of the Diocese and lay employees of
its affiliates (such as Catholic Charities and St. John’s School), are not “grandfathered” and
therefore, do not meet the ACA’s definition of a “grandfathered” plan.8 Declaration of Charles
Quiggle, doc. no. 17-6, ¶ 10; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. The next plan
year for these health care plans began on July 1, 2014, and if this Court had not entered the
Preliminary Injunction, Plaintiffs would have to have been prepared to comply with the
regulations including the contraceptive mandate. Complaint, doc. no. 1, ¶ 40; Declaration of
Charles Quiggle, doc. no. 17-6, ¶¶ 11, 13; Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.
3. Trust Agreement – See doc. no. 1, ¶¶ 46-49 and doc. no. 22, ¶ 1.
The Trust Agreement provides that “each Director” of the Board of Directors of the Trust
shall be “appointed by the Bishop of each Diocese that is or becomes a Beneficial Owner” of the
Trust. The Board of Directors is then responsible for “[t]he management of the Trust[.]” Thus,
the Bishop is required to appoint a Director to the Board of the Trust with the knowledge that,
8 As noted previously in the Zubik and Persico matters:
The distinction between plans that are “grandfathered” and those that are not is important because as defined in federal regulations, plans that are “grandfathered” do not have to provide coverage without cost sharing of “preventive health services.” 45 C.F.R. § 147.140; 26 C.F.R. § 54.9815-125T; and 29 C.F.R. § 2590.7151251. A plan is “grandfathered” if: (1) at least one person was enrolled on March 23, 2010; (2) the plan continuously covered at least one individual since that date; (3) the plan provides annual notice of its grandfathered status; and (4) the plan has not been subject to significant changes as outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.98151251T(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§147.140(a)(g). A plan may maintain its grandfathered status so long as, if, compared to its existence on March 23, 2010, it does not: eliminate all or substantially all benefits to diagnose or treat a particular condition; increase a percentage cost-sharing requirement; significantly increase a fixed-amount cost-sharing requirement; significantly reduce the employer’s contribution; or impose or tighten an annual limit on the dollar value of any benefits. Additional Stipulated Facts, ¶ 3, citing 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1).
See doc. no. 75 in Persico, case no. 13cv303, page 25, fn 16; doc. no. 75 in Zubik, case no. 13-cv1459, page 25, fn 16.
15

under the contraceptive mandate, the Director must then allow the Trust directly to facilitate provision of the objectionable services for accommodated entities. The Bishop knows that his appointee will be forced to violate the Catholic faith.
While “all powers to manage the business and affairs of the Trust and each Series shall be exclusively vested in the Board and the Board may exercise all powers of the Trust[,]” “a majority of the Beneficial Owners may amend [the Trust] Agreement in writing at any time and thereby broaden or limit the Board’s power and authority[.]” Accordingly, while the Board of Directors manages the daily affairs of the Trust, the Dioceses through their respective Bishops have ultimate decision-making authority and ultimately are forced directly to facilitate provision of the objectionable services to the employees of accommodated entities within the Trust.
The Diocese, as operator and sole Beneficial Owner of the Greensburg series of the Trust, decides whether an entity may continue to participate in the Trust. The Trust Agreement provides that “[e]ach Beneficial Owner may allow such Diocesan Entities to benefit in such Series in respect of which such Beneficial Owner is the holder of the sole interest in accordance with the terms and conditions established by such Beneficial Owner in consultation with its advisors.”
Because accommodated, non-grandfathered entities, like Plaintiff Catholic Charities and Plaintiff St. John School, currently participate in the Trust, the Diocese will directly facilitate coverage of the objectionable services for the employees of these accommodated entities if the Diocese permits these entities to continue to participate in the Trust. Thus, the Diocese now faces the decision of whether to expel these accommodated entities – i.e., Catholic Charities and St. John’s School – from the Trust.
16

The Diocese, as sole beneficial owner, also is responsible for any fines incurred by accommodated entities like Catholic Charities and St. John’s School as a result of noncompliance with the contraceptive mandate. Under the Trust Agreement, “[a] particular Series shall be charged with the liabilities of that Series, and all expenses, costs, charges and reserves attributable to any particular Series shall be borne by such Series.”
F. Plaintiffs’ Religious Beliefs as to the Contraceptive Mandate As previously noted, a tenet of the Catholic faith is the belief that human life must be preserved from conception through natural death. See generally Hearing Testimony, Bishop Brandt, pg. 10, lines 10-17; pg. 12, lines 11-24. The ACA includes the provision that eight categories of preventative services for women must generally be covered by group health plans without cost sharing. Plaintiff’s Exhibit 67, HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at http://www.hrsa.gov/womensguidelines. Plaintiffs only object to the category that includes “contraceptive methods and counseling,” which covers FDA approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” claiming the “contraceptive methods and counseling” category which provides for such products, services, and counseling, violates their belief in the sanctity of human life. See generally Hearing Testimony, Bishop Brandt, pg. 10, lines 10-17; pg. 12, lines 11-24; pg. 16, 48. Completing the self-certification form required by the contraceptive mandate’s “accommodation” also violates that tenet. Hearing Testimony, Bishop Brandt, pg. 35, lines 5-7 (“If I sign the self-certification form, automatically that triggers the TPAs being able to offer those preventive services to which we object and which we find immoral.”) (emphasis added).
17

Bishop Brandt indicated that he would not sign the self-certification form as it would burden his and any other signer’s exercise of religion. Hearing Testimony, Bishop Brandt, pg. 36, lines 6-18 (Signing the form “involves material cooperation in conduct which is intrinsically evil.”) (emphasis added); and pg. 37, lines 16-17 (“. . . I cannot sign that document, the selfcertification document, because that is cooperating in moral evil.”) (emphasis added).
In explaining the burden that signing the self-certification form places upon him and those who would have to sign on behalf of Catholic Charities and St. John’s School, Bishop Brandt explained that although the “self[-]certification form may take only a few minutes to sign, it’s ramifications are eternal because it constitutes direct facilitation of moral evil.” Declaration of Bishop Brandt, doc. no. 17-7, ¶ 17 (emphasis added); Stipulation to Undisputed Facts, doc. no. 22, ¶ 1. During the injunction hearing, Bishop Brandt expounded on his declaration stating, “. . . it’s not how long the signature takes that’s important for us. It is what the signature triggers, the ramifications, the consequences that come from the signature.” Hearing Testimony, Bishop Brandt, pg. 40, lines 22-25 (emphasis added).
III. Statutory and Regulatory History9 A. Introduction In March 2010, Congress enacted the ACA. Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010).
The ACA established new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income 9 This section is identical to the Section III filed in Zubik and Persico cases (case nos. 13cv303 and 131459, respectively) at doc. no. 75, pages 29-38. The parties have not referenced any new statute and/or regulation that would relate to the issue(s) presented herein.
18

Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered, non-exempt group or individual health coverage to provide coverage forcertain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4). The ACA provides that certain of its provisions apply to “grandfathered health plans” and certain of its provisions, including 42 U.S.C. § 300gg-13, do not apply to “grandfathered health plans.” 42 U.S.C. § 18011. The contraceptive mandate does not apply to qualifying “grandfathered” plans, and such plans are not required to comply with the preventive services coverage requirement of 42 U.S.C. § 300gg-13.
B. Regulatory Background 1. Rulemaking from July 2010 to March 2012
On July 19, 2010, Defendants issued interim final rules, incorporating the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). These initial rules did not define “preventive care,” noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. At that time, there were no existing HRSA guidelines relating to preventive care and screening for women.
The Department of Health and Human Services (“HHS”) tasked the Institute of Medicine (“IOM”), a non-governmental organization, with “review[ing] what preventive services are necessary for women’s health and well-being and should be considered in the development of
19

comprehensive guidelines for preventive services for women.” IOM Report at 2. On July 19, 2011, the IOM Committee released a report entitled “Clinical Preventive Services for Women: Closing the Gaps 19-20, 109 (2011) (“IOM Report”). The IOM Report recommended that the HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” (“Preventive Services”). IOM Report at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105. The IOM Report included a dissent from Committee member Anthony Lo Sasso.
On August 1, 2011, HHS issued a press release announcing that it would adopt the recommendations of the IOM Report. U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html.
Also, on August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”).
In August 2011, the Government issued interim final rules implementing the statutory requirement that group health plans provide coverage for women’s “preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011).
20

The August 2011 interim final rules also amended the July 19, 2010 interim rules to provide HRSA additional discretion to exempt “religious employers” from the contraceptive coverage requirement. Id. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
a. The inculcation of religious values is the purpose of the organization; b. The organization primarily employs persons who share the religious tenets of the
organization; c. The organization serves primarily persons who share the religious tenets of the
organization; and d. 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 [i.e., an organization exempted from filing IRS Form 990]. Id. at 46,623. The Government sought “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” Id. In February 2012, the Government “finalize[d], without change,” the “religious employer” exemption as originally proposed in the August 2011 interim final rules. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). In February 2012, the Government also created a “one-year safe harbor from enforcement” for non-grandfathered group health plans sponsored by certain nonprofit organizations with religious objections to contraceptive coverage. See 77 Fed. Reg. 8725, 872628 (Feb. 15, 2012). The Government undertook a new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered nonprofit religious organizations with religious objections to covering Preventive Services. Id. at 8728.
21

On March 21, 2012, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that stated it was part of the Government’s effort “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, nonprofit religious organizations with religious objections to such coverage.” 77 Fed. Reg. 16,501, 16,503 (Mar. 21, 2012).
2. Rulemaking from February to July 2013 On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth a proposal that stated it was to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and to “establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.” See 78 Fed. Reg. 8456 (Feb. 6, 2013). Defendants received over 400,000 comments (many of them standardized form letters) in response to the proposals set forth in the NPRM. 78 Fed. Reg. 39,870, 39,872 (July 2, 2013). On June 28, 2013, the Government issued final rules adopting and/or modifying proposals in the NPRM. See 78 Fed. Reg. 39,870 (“Final Rule”). The regulations challenged here (the “2013 final rules”) include the new regulations issued by the Government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering Preventive Services. See 78 Fed. Reg. 39,870; see also 77 Fed. Reg. 16,501 (ANPRM); 78 Fed. Reg. 8456 (NPRM).
a. The 2013 Final Rules’ “Religious Employer” Exemption
22

The Final Rule states that it “simplify[ied] and clarify[ied] the definition of “religious
employer.” 78 Fed. Reg. at 39,871. Under the new definition, an exempt “religious employer”
is “an organization that is organized and operates as a nonprofit entity and is referred to in
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed.
Reg. 39874 (codified at 45 CFR § 147.131(a)). The groups that are “refer[red] to in section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” are:
(i) churches, their integrated auxiliaries, and conventions or associations of churches, and
* * * (iii) the exclusively religious activities of any religious order.
26 U.S.C. § 6033(a)(3)(A)(i) or (iii). Section 6033 of the Internal Revenue Code addresses
whether and when nonprofit entities that are exempt from paying taxes under the Code must file
“annual information [tax] return[s].” 26 C.F.R. § 1.6033-2(a).
The new definition of “religious employer” does “not expand the universe of religious
employers that qualify for the exemption beyond that which was intended in the 2012 final
regulations.” 78 Fed. Reg. at 39,874 (citing 78 Fed. Reg. 8461). Entities that are included in
Section 6033(a)(3)(A) are exempt from filing an annual Form 990 with the IRS.10
10 The IRS has developed a non-exhaustive list of fourteen facts and circumstances that may be considered, in addition to “any other facts and circumstances that may bear upon the organization’s claim for church status,” in assessing whether an organization is a “church” under section 6033(a)(3)(A)(i) of the Internal Revenue Code. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009); Internal Revenue Manual 7.26.2.2.4. The list of fourteen facts and circumstances includes the following:
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9) a literature of its own;
23

The 2013 final rules’ amendments to the religious employer exemption apply to group
health plans and group health insurance issuers for plan years beginning on or after August 1,
2013. See id. at 39,871.
b. The 2013 Final Rules’ “Accommodation”
The 2013 final rules establish regulations regarding the contraceptive coverage
requirement for group health plans established or maintained by “eligible organizations.”
78 Fed. Reg. at 39,875-80; 45 C.F.R. § 147.131(b).
An “eligible organization” is an organization that satisfies the following criteria:
(10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers. Id.
In 26 C.F.R. § 1.6033-2(h), the Treasury Regulations provide a three (3) prong test to determine whether a group is an “integrated auxiliary” under section 6033(a)(3)(A)(i) of the Internal Revenue Code. According to the Treasury Regulation, the term “integrated auxiliary of a church” means an “organization that is: (i) [d]escribed in both sections 501(c)(3) and 509(a)(1), (2), or (3); (ii) [a]ffiliated with a church or a convention or association of churches; and (iii) [i]nternally supported.” 26 C.F.R. § 1.6033-2(h)(1). An organization is “internally supported” for purposes of subparagraph (h)(1)(iii), above, of this section, unless it both,
(i) Offers admissions, goods, services or facilities for sale, other than on an incidental basis, to the general public (except goods, services, or facilities sold at a nominal charge or for an insubstantial portion of the cost); and
(ii) Normally receives more than 50 percent of its support from a combination of governmental sources, public solicitation of contributions, and receipts from the sale of admissions, goods, performance of services, or furnishing of facilities in activities that are not unrelated trades or businesses.
An entity’s eligibility for exemption as a religious employer is determined on an employer-by-employer basis. See 78 Fed. Reg. at 39,886.
An entity that offers a health plan to its employees that is administered by a qualified religious employer must independently qualify for the religious employer exemption to be exempt. 78 Fed. Reg. 39,886; see also 78 Fed. Reg. at 8456, 8463.
24

(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. The 2013 final rules state that an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874. To be relieved of the obligations that otherwise apply to non-grandfathered, nonexempt employers, the 2013 final rules require that an eligible organization complete a self-certification form, certifying that it is an eligible organization, sign the form, and provide a copy of that self-certification to its insurer or TPA. Id. at 39,878-79. For self-insured organizations, the self-certification “will afford the [TPA] notice of [its] obligations” under the 2013 final rules, “and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39,879. Section 3(16) of ERISA provides the definition of “administrator” under ERISA. 29 U.S.C. § 1002(16). Under the 2013 final rules, in the case of an eligible organization with a selfinsured group health plan, the organization’s TPA, upon receipt of the self-certification, will provide or arrange separate payments for contraceptive services for participants and
25

beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,87980; 26 C.F.R. § 54.9816-2713A(b)(2), (c)(2).
Under the 2013 final rules, costs incurred by TPAs relating to the coverage of Preventive Services for employees of eligible organizations will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See 78 Fed. Reg. at 39,880. The payments for Preventive Services required by the challenged regulations applicable to employer-sponsored health insurance plans are available to an employee only while the employee is on an organization’s health plan. 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B).
Self-insured religious employers and eligible organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure Preventive Services. 26 C.F.R. § 54.9815–2713.
The 2013 final rules’ “accommodation” applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. See id. at 39,872.
IV. Summation of Findings of Fact Based upon testimony presented at the injunction hearing, credibility determinations of
the witnesses by this Court, and the sum of evidence presented in various forms, the Court finds that:
(1) Plaintiffs hold sincerely to the religious beliefs of the Catholic faith that: (a) human life is sacred from conception to natural death;
26

(b) worship, faith, and good works are essential and integral to the practice of
Catholicism (“faith without good works is dead”); and
(c) the facilitation of evil is as morally odious as the proliferation of evil.
(2) Plaintiffs will refuse to provide, directly or indirectly, employee health insurance
coverage for contraceptive products, services, or counseling, because doing so would violate
their sincerely-held religious beliefs.
(3) The nonprofit, religious affiliated/related Plaintiffs (Catholic Charities and St. John’s
School) will not complete the self-certification form. These Plaintiffs will partake in this act of
civil disobedience because to do otherwise – meaning signing the self-certification form – will
initiate (“cause a process of action to begin”) and facilitate coverage of contraceptive products,
services, and counseling by a TPA or health insurer. The act of signing the self-certification
form will violate these Plaintiffs’ sincerely-held religious beliefs. Further, Bishop Brandt will
direct these Plaintiffs not to complete the self-certification form.
(4) The nonprofit, religious affiliated/related Plaintiffs will be subject to substantial
fines/penalties/“taxes” and other coercive governmental sanctions.11
11 The Government argues that it lacks “regulatory authority to require the TPAs of self-insured church plans to make separate payments for contraceptive services for participants and beneficiaries in such plans under the challenged accommodations.” Supplemental Brief, doc. no. 35, p. 1. The Government further contended “that self-insured church plans do not fall within ERISA’s ambit.” Hearing Transcript, doc. no. 40, p. 110, lines 6-7. The Government explained that “very late in the game, we realized that the health plan that is offered through the Catholic Benefits Trust is, in fact, a self-insured church plan. And that means that the Government lacks any regulatory authority whatsoever, statutory or regulatory, to force the TPA to provide coverage for contraceptive service.” Hearing Transcript, doc. no. 40, p. 110, lines 5-11.
As explained in greater detail, when Plaintiffs sign “the form” (EBSA Form 700) to comply with the accommodation, and send “the form” to the TPA, the TPA “becomes an ERISA . . . plan . . . and claims administrator for the purpose of providing the separate payments for contraceptive purposes.” Government’s Brief in Opposition, doc. no. 23, p. 3. Per the Government, Plaintiffs’ TPA, once its status was converted upon receipt of “the form” to an ERISA administrator, would be subject to the Government’s (i.e., the Department of Labor’s) ERISA enforcement authority and thereby the contraceptive coverage requirements under ACA could be enforced. Id. However, the Government now
27

(5) The effect of the imposition of these fines/penalties/“taxes” will gravely impact
Plaintiffs’ spiritual, charitable, and educational activities, and the individuals who rely on the
Catholic Church’s nonprofit, religious affiliated/related organizations for the basic needs of food,
shelter, and education, as well as other charitable programs. The fines/penalties/“taxes” also will
negatively affect Plaintiffs’ financial situation because donors to these
spiritual/charitable/educational organizations may not wish to donate funds when the funds could
be diverted to the Government in the form of fines/penalties/“taxes.”
claims that because “church plans” are “specifically excluded from the ambit of ERISA[,]” ERISA enforcement authority is “not available” to be used against the Plaintiffs’ TPAs, because of the nature of the heal plan being a “self-insured church plan.” Id.
Simply put, the Government argues that “[b]ecause the regulations allow [P]laintiffs to opt out of providing or paying for contraceptive services, and because [the Government] lack[s] the authority to require the TPAs of self-insured church plans to make these payments, [P]laintiffs have not established an injury in fact . . . .” Id. This argument fails for two reasons.
First, the Government ignores the fact that the “accommodation” still requires Plaintiffs to sign a form (EBSA Form 700) to “opt out” of providing or paying for contraceptive services (which simultaneously triggers their TPAs to do so). Thus, the portion of the “accommodation” requiring an action on the part of Plaintiffs (i.e., the signature and delivery of the form to the TPA) is still enforceable and required. For these Plaintiffs, it is the signature on the form that triggers eternal ramifications for the signators because Plaintiffs believe that the signature constitutes the direct facilitation of moral evil.
Second, the Government focuses on the alleged fact that it cannot enforce Plaintiffs’ TPA to provide or pay for the contraceptive services after the TPA receives the signed form from Plaintiffs. This argument suggests that Plaintiffs and/or their TPA may ignore or disobey regulation(s) or portions of regulations because the Government may not be able to punish them for doing so. The Government also argues that “there is no reason to believe that Plaintiffs’ TPA would voluntarily provide such coverage over their clients’ stated religious objections to doing so.” Government’s Brief in Opposition, doc. no. 23, p. 3. This argument fails because it ignores 26 C.F.R. § 54.9815–2713, which prohibits Plaintiffs from “influencing” the decision of the TPA. Unless, of course, this is yet another regulation that can be ignored. Thus, it appears from the Government’s argument, that Plaintiffs may ignore the regulation concerning “influencing” their TPA, and their TPAs can ignore the law requiring it to provide contraceptive coverage once it receives a form from Plaintiffs. This Court finds that Plaintiffs cannot morally disobey a regulation – or instruct their TPA to do so – because there allegedly may not be any enforceable consequences at this point in time. As Monsignor Riffle explained, signing the form – and the Government never indicated that the Plaintiffs could do otherwise – without knowing with “certitude” whether or not the TPA would actually provide the contraceptive coverage, would still violate Plaintiffs’ religious beliefs. Hearing Transcript, doc. no. 40, p. 81, lines 6-20.
28

V. Conclusions of Law A. Overview The Court begins by noting that on June 20, 2014, the Court granted Plaintiffs’ Motion
for an Expedited Preliminary Injunction. Doc. nos. 26-27. The Court did so without conducting a hearing based on the representations made by counsel for the Parties during a June 3, 2014 status conference. Counsel indicated that given the Court’s familiarity with the issues presented in the case from its experience in the Zubik and Persico matters, and in light of the very constricted time frame within which they had to comply with the “accommodation,” all Parties agreed to waive a preliminary hearing and have this Court decide the preliminary injunction matter solely on the written record. Status Conference Transcript, doc. no. 20, pg. 6-7, line 25, lines 1-4. In light of this agreement by the Parties, the Court ordered the Parties to prepare a Stipulation as to any undisputed facts – as they had done in the Persico and Zubik cases – and set a date for a permanent injunction hearing.
On June 6, 2014, in the Parties’ jointly filed “Stipulation to Undisputed Fact” (doc. no. 22), the Government conceded that: (1) Plaintiffs’ religious beliefs are sincerely held, and (2) Plaintiffs’ participation in the accommodation – specifically, signing the self-certification form – would violate their sincerely-held religious beliefs. The Government also stipulated that it did not dispute the factual allegations set forth in: the Complaint (doc. no. 1); the declaration of Monsignor Larry Kulick (doc. no. 17-3); the declaration of Monsignor Raymond Riffle (doc. no. 17-4); the declaration of Christine Roskovensky (doc. no. 17-5); the declaration of Charles Quiggle (doc. no. 17-6); the declaration of Bishop Lawrence Brandt (doc. no. 17-7); and the “Preliminary Injunction papers” (doc. nos. 16 and 17). Therefore, the Court ruled on Plaintiffs’ Motion for an Expedited Preliminary Injunction based on the facts set forth in those documents
29

because they were (and are) uncontested. See doc. nos. 26-27, Memorandum Opinion and Order on Plaintiffs’ Motion for an Expedited Preliminary Injunction.
The Court’s decision in this case, like the Court’s decisions in Zubik and Persico, is guided by decisions in other Courts across the Country. In this instance, the most recent Supreme Court decision, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S.Ct. 2751 (June 30, 2014), is especially instructive on some – if not all – of the legal issues presented herein.
Although Hobby Lobby was decided in favor of for-profit, closely-held corporations (Hobby Lobby and Conestoga Wood Specialities) who were not offered an “accommodation” under the regulations, Hobby Lobby is still instructive. Plaintiffs here, like the plaintiffs in Hobby Lobby, challenged provisions relating to the contraceptive mandate of the ACA. Similarly, Plaintiffs here, like the plaintiffs in Hobby Lobby, assert that their religious freedom is violated by the contraceptive mandate, despite the fact that the Government provided Plaintiffs with an “accommodation” to the mandate. The only difference between these Plaintiffs and the Hobby Lobby plaintiffs arises out of the actions these Plaintiffs must take in order to comply with the “accommodation” to the contraceptive mandate as opposed to the actions that the Hobby Lobby plaintiffs had to take to comply with the mandate itself. Nonetheless, the analysis is generally the same: this Court is tasked with determining whether the law (in this case the “accommodation” provision of the contraceptive mandate) requires these Plaintiffs to take actions that violate their sincerely-held religious beliefs thereby burdening their freedom to exercise their religion.
In addition to the Hobby Lobby decision, this Court also notes that three days after publishing its Hobby Lobby decision, the United States Supreme Court granted an injunction
30

pending appeal to Wheaton College in Wheaton College v. Burwell, __ U.S. __, 134 S.Ct. 2806 (July 3, 2014). Although the Court in Wheaton did not decide the “accommodation issue” on the merits – which is the seminal issue facing this Court in the instant case, as it was in Zubik and Persico – it did enjoin the Government from enforcing the challenged accommodation provisions and related regulations against Wheaton College, specifically the regulations related to the submission of EBSA Form 700 – the very form at the heart of the issue in this case. Wheaton, 134 S.Ct. at 2807 (The Government is enjoined from enforcing against Wheaton College “the challenged provisions of the [ACA] and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.”).
Turning to the instant matter, Plaintiffs have requested that this Court grant a permanent injunction, arguing that the religious employer “accommodation,” which requires them to facilitate/initiate compliance with the contraceptive mandate, violates their rights under the RFRA and the Free Exercise Clause of the First Amendment.
B. Permanent Injunction Test According to well-established principles of equity, “[a] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010) citing eBay Inc. v. MercExchange, L.L.C., 547
31

U.S. 388, 391 (2006). See also Boring v. Google Inc., 362 Fed.Appx. 273, 282 (3d Cir. 2010) (“Pennsylvania law provides that in order to establish the right to injunctive relief, a plaintiff must establish that his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested.”); Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001) (“In deciding whether to grant a permanent injunction, the district court must consider whether: (1) the moving party has shown actual success on the merits; (2) the moving party will be irreparably injured by the denial of injunctive relief; (3) the granting of the permanent injunction will result in even greater harm to the defendant; and (4) the injunction would be in the public interest.”).
There is no significant difference between the standards for a preliminary injunction and a permanent injunction. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n. 12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”). Plaintiffs’ standard of proof for a permanent injunction is the preponderance of the evidence standard for injunctive relief, or demonstration of a fact as “more likely than not.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (citing Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983)).
Accordingly, this Court has evaluated Plaintiffs’ request for a permanent injunction and considered their request under a preponderance of evidence standard. The Court concludes, based on its aforementioned findings of fact, that Plaintiffs have met their burden of proving
32

success on the merits of their claim with respect to “Count I – Substantial Burden on Religious Exercise in Violation of RFRA” as explained more thoroughly infra.12
1. Success on the Merits - RFRA
a. Background Plaintiffs, in their Motion for Expedited Preliminary Injunction, asked this Court to enjoin Defendants from issuing, applying, and enforcing 42 U.S.C. § 300gg-13(a)(4) as further regulated by 45 C.F.R. § 147.130(a)(1)(iv) against Plaintiffs and their group health plans. Doc. no. 16. Section “III. B. 2.” above, 45 C.F.R. § 147.130(a)(1)(iv) is the regulation that allows HRSA to “establish exemptions” from group health plans maintained by “religious employers” with respect “to any requirement to cover contraceptive services[.]” See 45 C.F.R. § 147.130(a)(1)(iv)(A). Id. As noted above, the Court granted Plaintiffs’ Motion for Expedited Preliminary Injunction. Doc. nos. 26-27. After receiving hundreds of thousands of comments from the public, including religious individuals and entities, concerning the definition of “religious employer” for the benefit of receiving an “exemption” from the contraceptive mandate, the “final rule” promulgated by HRSA defined a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code . . . .” 45 C.F.R. § 147.131(a). Again, as noted in Section “III. B. 2.” above, the nonprofit entities included in the relevant portion of Section 6033 of the Internal Revenue Code are:
12 Having found that Plaintiffs successfully proved the merits of their RFRA claim by a preponderance of the evidence (for the reasons stated in greater detail below) and finding that a violation of this claim alone warrants the issuance of a permanent injunction, this Court need not reach any additional claims filed by Plaintiffs at this time. In addition, this Court is aware that the Persico, Zubik, and Geneva College cases have all been consolidated before the United States Court of Appeals for the Third Circuit and are pending resolution by said Court on substantially similar, if not identical, issues. Thus, no additional discussion on the remaining claims presented by Plaintiffs in this matter is warranted.
33

(i) churches, their integrated auxiliaries, and conventions or associations of churches,
* * * (iii) the exclusively religious activities of any religious order. 26 U.S.C.A. § 6033(a)(3)(A). Given this description, Plaintiffs in the instant cases (the nonprofit, religious affiliated/related entities) fail to meet the definition of a “religious employer” entitled to the “exemption.” In response to concerns that the application of the religious employer “exemption” was too narrow, and instead of broadening the “exemption,” a second regulation was enacted that allowed for non-secular, nonprofit employers to receive an “accommodation,” whereby these entities could self-certify that they were “eligible organizations” and thereby avoid directly providing contraceptive products, services, and counseling. As noted above, this “accommodation” is limited to “eligible organizations” that: (1) oppose providing coverage for some or all of any contraceptive services required to be covered under the contraceptive mandate “on account of religious objections[;]” (2) are organized and operate as a nonprofit entity; (3) hold themselves out as a religious organization; and (4) “self-certify,” in a form and manner specified by the Secretary, that it satisfies the criteria in (1) through (3) above. See 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. “The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.” Id. Because the non-secular, nonprofit Plaintiffs in the instant cases meet the first three criteria of the “accommodation,” they need to “self-certify,” as required by the fourth criterion, to be deemed an “eligible organization” thereby entitling them to obtain the religious employer
34

“accommodation.” It is the fourth criterion of the religious employer “accommodation” that Plaintiffs contend violates their rights under the RFRA and the First Amendment.13
In order to qualify for the religious employer “accommodation,” and thus avoid directly providing or paying for contraceptive products, services, and counseling through their own health plans, Plaintiffs in these cases must self-certify that they: (1) oppose providing such contraceptive coverage on account of their religious objections; (2) are organized and operate as nonprofit entities; and (3) hold themselves out as a religious organization. This Court found as fact that Plaintiffs’ self-certification forms must be executed by the Bishop of Greensburg or at his directive.
b. Substantial Burden under the RFRA Plaintiffs assert that by requiring self-certification and thereby facilitating or initiating the process of providing contraceptive products, services, and counseling, via a third party, the “accommodation,” violates their rights under the RFRA. The RFRA provides, in pertinent part, as follows:
(a) In general Government shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
13 Notably, subpart “(c)” of same regulation provides that entities who meet all four criteria, thereby entitles them to an “accommodation,” and will not have to pay for the contraceptive products, services, and counseling. A third party will. See 45 C.F.R. § 147.131(c).
35

(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C.A. § 2000bb-1. This Court must look to what is meant by “substantial burden” under the RFRA. As the
United States Supreme Court stated in Hobby Lobby, substantial burden is not to be determined by “whether the religious belief asserted in an RFRA case is reasonable[;]” in fact, this Court “must not presume to determine . . . the plausibility of a religious claim.” Hobby Lobby, 134 S.Ct. at 2778. Instead, in determining whether a substantial burden has been placed on these Plaintiffs, this Court’s own “‘narrow function . . . in this context is to determine’” whether the line drawn reflects “an honest conviction,’” and there is no dispute that it does.” Hobby Lobby , 134 S.Ct. at 2779, quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, at 716 (1981) (internal citation omitted).
Here, the Government (adopting its prior arguments made in Zubik and Persico), argues that the “accommodation” merely requires the Bishop of Greensburg (or his designees) to sign the self-certification form, on behalf of the Diocese’s respective nonprofit, religious affiliated/related entities, and does not rise to the level of a “substantial burden,” as that term has been defined in connection with the RFRA. The Government argues that any impact on Plaintiffs’ sincerely-held religious beliefs created by Plaintiffs’ self-certification is too attenuated to rise to the level of creating a substantial burden on Plaintiffs.
However, the Government acknowledges that the act of self-certification will require the Plaintiff-entities to sign the self-certification form and supply their TPA with the names of the Plaintiffs’ respective employees so that the TPA may provide (and/or pay for) contraceptive products, services, and counseling. The Government also concedes that Plaintiffs have
36

sincerely-held religious beliefs with respect to: (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil.
Given these concessions, the Court disagrees with the Government that Plaintiffs’ ability or inability to “merely sign a piece of paper,” and thus comport with the “accommodation,” is all that is at issue here. Again, as succinctly stated by Bishop Brandt, although the “self [-] certification form may take only a few minutes to sign, its ramifications are eternal because it constitutes direct facilitation of moral evil.” Declaration of Bishop Brandt, doc. no. 17-7, ¶ 17 (emphasis added); Stipulation to Undisputed Facts, doc. no. 22, ¶ 1.
Here, the issue is whether Plaintiffs, being non-secular in nature, have successfully proven that their right to freely exercise their religion under RFRA has been substantially burdened by the “accommodation,” which requires the Bishop of Greensburg (or his designees) to sign a form (EBSA Form 700) that thereby facilitates/initiates the provision of contraceptive products, services, and counseling. Based upon the evidence of record as set forth in the Court’s factual findings, this Court concludes that the accommodation substantially burdens Plaintiffs’ right to freely exercise their religion.
Just as this Court noted in the Zubik and Persico matters, the Court likewise concludes that:
. . . [A]lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
37

Zubik v. Sebelius, 983 F.Supp.2d 576, 606 (W.D. Pa. 2013). In addition, the Court also concludes that the “accommodation” and the “exemption” to
the contraceptive mandate divide the Catholic Church, which also creates a substantial burden on Plaintiffs’ exercise of religion. Simply put, the religious employer “exemption” enables some religious employers to completely eliminate the provision of contraceptive products, services, and counseling through the Diocese’s health plan and third parties; while the religious employer “accommodation” requires other religious employers (often times the same member with the same sincerely-held beliefs) to take affirmative actions to facilitate/initiate the provision of contraceptive products, services, and counseling – albeit from a third-party (the TPA). How these two separate provisions – the “exemption” from the contraceptive mandate and “accommodation” to the contraceptive mandate – divide the Catholic Church was discussed in greater detail in this Court’s Memorandum Opinion in Zubik and Persico, and the Court adopts that portion of its prior Opinion by reference as if more fully set forth herein. See Zubik v. Sebelius, 983 F.Supp.2d at 606-608, entitled, “iii. The ‘Accommodation’ and the ‘Exemption’ Divide the Catholic Church which Creates a Substantial Burden.”
c. Compelling Government Interest Given that the Court has concluded that the “accommodation” places a substantial burden on Plaintiffs’ free exercise of religion under the RFRA, the Court will now consider whether the RFRA’s exception has been met. 42 U.S.C.A. § 2000bb-1(b). Accordingly, the Court must determine whether the contraceptive mandate, as applied to Plaintiffs via the “accommodation”: (1) furthers a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest. Id.
38

As to the compelling interest test, the Government indicated that its compelling
governmental interests in this case were the same as those it had espoused in Zubik and Persico,
namely: (1) “the promotion of public health” and (2) “assuring that women have equal access to
health care services.” See Zubik, 983 F.Supp.2d at 610; Defendant’s Opposition to Plaintiffs’
Motion for Preliminary Injunction, doc. no. 23; Stipulation to Undisputed Facts, doc. no. 22. As
in the Zubik and Persico cases, the Court notes that these are certainly important interests;
however, the existence of the “exemption” is an indication that the Government found its
compelling interests could not “overbalance the legitimate claims to the free exercise of religion”
asserted by some religious employers – i.e., the houses of worship. Yoder, 406 U.S. at 215, 92
S.Ct. 1526; see also Geneva College, 960 F.Supp.2d 588, 599–601 (W.D.Pa. 2013). Similarly,
in Hobby Lobby, the Government asserted that the contraceptive mandate serves “a variety of
important interests” but the Supreme Court noted that the interests were “couched in very broad
terms, such as promoting ‘public health’ and ‘gender equality.’” 134 S.Ct. at 2779.
Specifically, the Hobby Lobby Court stated:
[The] RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S., at 430–431, 126 S.Ct. 1211 (quoting § 2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants” – in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431, 126 S.Ct. 1211. Id.
This Court, in Zubik and Persico, agreed that the two interests espoused by the
Government – the same two interests argued here – are “certainly important governmental
interests,” but the Court concludes here, as it did in Zubik and Persico, that these two interests, as
39

so broadly stated, are not “of the highest order” such that “those not otherwise served can
overbalance legitimate claims to the free exercise of religion.” Zubik, 983 F.Supp.2d at 610
citing Yoder, 406 U.S. at 215.
Given that no new argument has been raised with respect to the “important governmental
interests” advanced by the contraceptive mandate, this Court adopts its statements referenced
above and set forth in Zubik and Persico as follows:
. . . the Court first notes that the existence of a religious employer “exemption” is an acknowledgment of the lack of a compelling governmental interest as to religious employers who hire employees for their “houses of worship.” Simply put, as stated more fully above, the religious employers who qualify for the “exemption” do not have to directly provide, nor indirectly facilitate/initiate, the provision of any contraceptive products, services, and counseling. At a minimum, the existence of the “exemption” is an indication that the Government found its compelling interests to (1) promote public health, and (2) assure that women would have equal access to health care services, could not “overbalance the legitimate claims to the free exercise of religion” asserted by some religious employers – i.e., the houses of worship. Yoder, 406 U.S. at 215; see also Geneva College, 2013 WL 3071481 at *10.
Zubik, 983 F.Supp.2d at 610.
As applied to the instant case, the Government’s argument that its compelling interests
will overbalance the exact same legitimate claims to the free exercise of religion (at times being
raised by the same individuals – i.e., Bishop Brandt) fails when asserted on behalf of a religious
affiliated/related employer. If the Court were to conclude that the Government’s stated interests
were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit,
religious affiliated/related Plaintiffs (Catholic Charities and St. John’s School), the net effect (as
noted above) would be to allow the Government to cleave the Catholic Church into two parts:
worship, and service and “good works,” thereby entangling the Government in deciding what
comprises “religion.” Thus, the Court refuses to conclude that the Government has compelling
40

interests which overbalance the legitimate claims to the free exercise of religion raised by Plaintiffs.
Moreover, as noted in Zubik and Persico, this Court remains unconvinced that the “exemption” itself (which dictates that certain religious employers can legally decline to directly and indirectly facilitate the provision of contraceptive products, services, and counseling) was predicated upon a “public health” basis to meet the two purported compelling interests. Instead, a religious employer’s qualifications for the “exemption” is predicated upon the unrelated question of whether that religious employer files the IRS Form 990. 45 C.F.R. § 147.131(a) (August 1, 2013).
Accordingly, if there is no compelling governmental interest to apply the contraceptive mandate to the religious employers who operate the “houses of worship,” then there cannot be any compelling governmental interest to apply (even in an indirect fashion) the contraceptive mandate to the religious employers of the nonprofit, religious affiliated/related entities, like Plaintiffs in this case.
Furthermore, the Government offered no new argument to support its compelling interest position. In Zubik and Persico, the Government argued (but offered no real evidence) that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers, including organizations eligible for the accommodation [i.e., Plaintiffs in the instant case], to employ people of the same faith who share the same objection, and who would therefore be less likely to use contraceptive services even if such services were covered under their plan.” Zubik, 983 F.Supp.2d at 610. In light of the fact the Government has not offered any new evidence on this point, and given that there was none
41

offered in Zubik and Persico, the Court continues to find this statement speculative, and unsubstantiated by the record and, therefore, unpersuasive.
Next, the Court also notes that, like Zubik and Persico, the portions of the Administrative Record offered into evidence by the Government suggest that “women who receive their health coverage through employers like plaintiffs would face negative health and other outcomes . . . .” 77 Fed. Reg. at 8728; 78 Fed. Reg., at 39, 887 (emphasis added). Again, despite this assertion, the Government has failed to offer any testimony or other evidence during the injunction hearing to support its claim that Plaintiffs’ female employees, insured female spouses or insured female dependents of employees have, in fact, suffered in the past, or will in the future, any “negative health or other outcomes,” without the enforcement of the contraceptive mandate. No evidence was offered on this point during the injunction hearing in this matter despite the fact that the Court pointed out the shortfall in its Memorandum Opinion in Zubik and Persico.
As stated above and in Zubik and Persico, whether intended or not, the application of two distinct regulations (one providing a complete “exemption,” and the other merely providing an “accommodation”) to religious employers who hold the same basic religious tenets unnecessarily – and in direct contravention to the RFRA and the Free Exercise Clause of the First Amendment – entangles the Government into determining what constitutes “religion.”14 By having these two, separate regulations “on the books,” the Government has essentially detached worship and faith from “good works” and has determined that a religious employer’s complete freedom to exercise religion ends at the church doors.
14 Again, as noted by the Supreme Court in Hobby Lobby, it is not for a Court to say whether a religious belief is “mistaken or insubstantial;” rather, it is the Court’s obligation to determine whether the belief reflects “an honest conviction.” 134 S.Ct. 2778-79. In the instant case – just like Hobby Lobby – there is no dispute that the religious belief in question does reflect an honest conviction.
42

For all of the reasons set forth above, the Court concludes that the Government has again failed, both factually and legally, to establish that its two stated governmental interests are so compelling such that “those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Zubik, 983 F.Supp.2d at 611, quoting Yoder, 406 U.S. at 215, 92 S.Ct. 1526.
d. Least Restrictive Means Given that (1) Plaintiffs have met their burden of showing that the “accommodation” creates a substantial burden on their free exercise of religion, and (2) the Government has failed to meet its burden of proving that it had a compelling interest to apply the contraceptive mandate, via the “accommodation,” to Plaintiffs, the Court need not consider whether the “accommodation” was the least restrictive means of meeting the stated compelling interests. Nevertheless, the Court also concludes that the Government has failed to adduce evidence that definitively establishes that it used the least restrictive means to meet the stated compelling government interests. At the outset, the Court notes that Supreme Court in Hobby Lobby commented that the “least-restrictive-means standard is exceptionally demanding” and was not satisfied in that case. Hobby Lobby, 134 S.Ct. at 2780. Moreover, the Hobby Lobby Court provided means that could have been used in lieu of the “accommodation” to meet the Government’s stated compelling interests:
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see § 2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the
43

FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www. fda. gov/ forconsumers/ byaudience/ forwomen/ free publications/ ucm 313215. htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance-coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.[ ] If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.
Id. at 2780-81.
Turning to the instant case, at the permanent injunction hearing held on July 18, 2014, the
Government did not offer any additional evidence concerning whether the “accommodation” was
the “least restrictive means” of meeting the Government’s stated compelling interests. Thus,
based on the Stipulations made prior to the Court’s entry of the preliminary injunction in this
case, the Court will review the arguments the Government made in Zubik and Persico.
In Zubik and Persico, the Court noted and held as follows with respect to the “least
restrictive means” arguments raised by the Government:
First, the Government proffers that the “accommodation” was not only the “least restrictive means,” but the “only possible means” of furthering the two compelling governmental interests to: (1) promote public health, and (2) assure that women would have equal access to health services. The Government’s position is simply that this “accommodation” (i.e., the acts of signing a self-certification form and gathering/delivering employee list(s) to their health insurer or TPA) was the “least” and the “only possible means,” of furthering the two stated compelling governmental interests.
44

If the Government is correct that the entire fundamental statutory scheme set forth in the ACA will fail, without the participation in the contraceptive mandate by nonprofit, religious affiliated/related Plaintiffs and others like them (i.e., food pantries, homeless shelters, etc.), which operate under the authority of an already exempt religious body (i.e., Plaintiff Erie Diocese), then the foundation of the “statutory scheme” is certainly troubled.
Under the RFRA, the “accommodation” must be the “least restrictive means” to further the two stated compelling governmental interests. The Government neither at the Injunction Hearing, nor in the Administrative Record, offered any evidence concerning: (1) the identity of all other possible “least restrictive means” considered by the Government; (2) the analysis of each of the “means” to determine which was the “least” restrictive; (3) the identity of the person(s) involved in the identification and evaluation of the alternative “means”; or (4) “evidencebased” analysis as to why the Government believes that the “accommodation” is the “least restrictive means.”
Instead, the Government argues that all the “accommodation” requires is a signature on a piece of paper. Once the signed document is received by the insurer or TPA, the contraceptive products, services, and counseling will then be made part of the nonprofit, religious affiliated/related Plaintiffs' health care plan at no cost to the Plaintiffs— except, of course, for the incalculable cost of the loss of their rights to freely exercise their religion.
As noted throughout this Opinion, this Court has found that the Government conceded that Plaintiffs’ beliefs are sincerely-held. Despite these concessions, the Government trivializes these sincerely-held beliefs of Plaintiffs throughout its Brief in Opposition, to wit, the “accommodation”: (1) “requires virtually nothing of Plaintiffs” . . . ; (2) “certainly does not require Plaintiffs to modify their behavior in any meaningful way” . . . ; (3) is “no more than a de minimis burden . . . ; (4) requires Plaintiffs to “do next to nothing” . . . ; and (5) Plaintiffs “need only fulfill the self-certification requirement and provide the completed self-certification to their issuers and TPAs” . . . . Further, there is nothing in the record to establish, or even hint, that a broader “religious employer” exemption, to include Plaintiffs (i.e., Catholic Charities, Prince of Peace Center, et al.), would have any impact at all on “the entire statutory scheme.”
During the Injunction Hearing, the Court specifically asked the Government about its stated compelling interests and the means it took to advance them. The Government directed the Court’s attention to a precise section of the Administrative Record which reads, in pertinent part:
45

Fifth, some commentators asserted that the contraceptive coverage requirement [the contraceptive mandate] is not the least restrictive means of advancing those compelling interests, and proposed various alternatives to these regulations. All of these proposals were considered, and it was determined that they were not feasible and/or would not advance the government's compelling interests as effectively as the mechanisms established in these final regulations and the preventative services coverage more generally.
78 Fed.Reg. 39888 (July 2, 2013).
As to this “argument,” the Court first notes that it is not the commentators’ responsibility to draft the regulations employing the least restrictive means—that obligation rests with the Government. Second, the regulation itself clearly announces that the alternatives to the current regulations—including the contraceptive mandate—would not advance the Government's interests “as effectively as” the contraceptive mandate and the “accommodation.” Greater efficacy does not equate to the least restrictive means.
Thus, the Court concludes that the Government failed to present any credible evidence tending to prove that it utilized the least restrictive means of advancing those interests.
Zubik, 983 F.Supp.2d at 611-612.
e. Conclusion – Success on the Merits
After carefully considering the testimony of Cardinal Dolan (offered at the injunction
hearing in this case by way of transcript), Bishop Brandt, and all of the other witnesses for
Plaintiffs who were either called to testify during the hearing or who offered Declarations whose
facts the Government stipulated were true, the Court made the factual determination that
Plaintiffs possess a sincerely-held belief that the burden imposed by the execution of the self-
certification form is substantial. Plaintiffs here – like those in Zubik and Persico– sincerely
believe that by signing the self-certification form, required by the “accommodation,” they will
facilitate/initiate the provision of contraceptive products, services, and counseling. Plaintiffs also
46

sincerely believe that this facilitation/initiation is no different than if Plaintiffs directly provided those same products, services, and counseling.
The Court concludes that the “accommodation” places a substantial burden on Plaintiffs’ ability to exercise their religion. The Court also concludes that the Government failed to show these regulations meet a compelling governmental interest and are sufficiently narrowly-tailored to meet those interests, and/or to demonstrate that the “accommodation” is the least restrictive means to meet those stated interests.
Based on the foregoing analysis, the Court concludes that Plaintiffs have successfully proven a violation of their free exercise of religion under the RFRA and thereby meet the first element of the permanent injunction test.
2. Irreparable Injury The basis of injunctive relief in Federal Courts has always been irreparable harm and inadequacy of legal remedies. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-507 (1959). What may constitute “irreparable harm” in a particular case is, of course, dependent upon the particular circumstances of the case. Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir. 1975). “The key word in this consideration is Irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Oburn, 521 F.2d at 151, citing Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (U.S. App. D.C. 1958) (emphasis in original); quoted with approval Sampson v. Murray, 415 U.S. 61, 90 (1974).
47

The Supreme Court of the United States has held “[t]he loss of First Amendment
freedoms,” which implicates the Free Exercise Clause as protected by the RFRA, “for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427
U.S. 347, 373 (1976). Establishing a likely RFRA violation satisfies the irreparable harm factor.
Hobby Lobby, 723 F.3d 1114, 1146 (10th Cir. 2013). More recently, in cases on point or nearly
on point with the instant matter, the Supreme Court has granted injunctions pending appeal. See,
i.e., Wheaton College, 134 S.Ct. 2806 (majority granting injunction to plaintiffs pending appeal,
noting plaintiff did not have to “. . . use the form prescribed by the Government, EBSA Form
700, and need not send copies to health insurance issuers or third-party administrators”); Little
Sisters of the Poor, Home for the Aged v. Sebelius, 571 U.S. ___, 134 S.Ct. 1022 (Jan. 24, 2014)
(granting injunction to plaintiffs pending appeal, noting, “The Court issues this order based on all
the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.”) (emphasis added).15
Although this Court cannot interpret the two recent Supreme Court orders granting
injunctions pending appeal as “law on the merits,” this Court finds that the Supreme Court has
twice considered whether an injunction should issue under substantially similar facts, and both
15 Interestingly, the Wheaton matter, unlike the Little Sisters matter, contained a dissent wherein three Justices, who objected to the grant of an injunction in the Wheaton case stated:
[t]his case is crucially unlike Little Sisters of the Poor v. Sebelius, 571 U.S. ___, 134 S.Ct. 1022, 187 L.Ed.2d 867 (2014). There, the Court issued a comparable order ‘based on all the circumstances of the case’ – in particular, the fact that the applicants’ third-party administrator was a ‘church plan’ that had no legal obligation or intention to provide contraceptive coverage.
Wheaton, 134 S.Ct. at 2814, fn. 6 (internal citation omitted)(emphasis added). In the instant matter, the Parties have stipulated that the insurance plan at issue is also “a church plan” possibly rendering this case more on point with the Little Sisters of the Poor. This Court further notes that in the instant case, despite the Government’s argument that it cannot enforce certain regulations against Plaintiffs and/or their TPA because the insurance at issue is a “church plan” (see footnote 11, supra.), the Supreme Court in Little Sisters opted to grant the extraordinary relief of an injunction pending appeal despite the fact that a purported “church plan” was at issue.
48

times has found that an injunction should issue. This suggests that irreparable harm will ensue if no injunction were to issue. See Wheaton College, 134 S.Ct. at 2810 (“[T]his Court ‘may issue all writs necessary or appropriate in aid of [its] . . . jurisdictio[n] and agreeable to the usages and principles of law.’ 28 U.S.C. § 1651(a). This grant of equitable power is a failsafe, ‘to be used ‘sparingly and only in the most critical and exigent circumstances.’” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313, 107 S.Ct. 682, 93 L.Ed.2d 692 (1986) (SCALIA, J., in chambers)”).
In this case, Plaintiffs argue that they will suffer irreparable harm without an injunction. Although this Court, by entering the preliminary injunction in this matter, has solved the immediate problem, the preliminary injunction is only a temporary solution. Based on the foregoing analysis, this Court concludes that because a violation of the RFRA has been proven, irreparable harm will befall Plaintiffs if a permanent injunction in this matter is not issued.
3. Balance of Hardships between the Parties The balance of hardships factor “assesses the relative effect of granting or denying an injunction on the parties.” Carnegie Mellon University v. Marvell Technology Group, Ltd., 2014 WL 1320154 (W.D.Pa., March 31, 2014) citing Apple Inc. v. Samsung Electronics Co., Ltd.,735 F.3d 1352, 1371 (C.A. Fed. 2013). “The balance of harms analysis examines the harm of granting or denying the injunction upon both of the parties to the dispute and upon other interested parties, including the public.” Archdiocese of St. Louis v. Burwell, __ F.Supp.2d ___, 2014 WL 2945859 (E.D. Mo., June 30, 2014) citing Noodles Development, LP v. Ninth Street Partners. LLP, 507 F.Supp.2d 1030, 1038-39 (E.D. Mo. 2007) (internal citations omitted). “When evaluating the balance of hardships, the court weighs the irreparable harm plaintiff would
49

suffer absent an injunction against the harm such an injunction would inflict on defendant[.]” Rush Construction, Inc. v. United States, ___ Fed.Cl. ___, 2014 WL 3507336 (June 30, 2014).
In the instant case, this Court has already determined that Plaintiffs have prevailed on the merits of their RFRA claim and that they will suffer irreparable harm if the permanent injunction does not issue. Moreover, the permanent injunction Plaintiffs seek would only apply to one of the eight categories of preventive services for women required by the ACA and its implementing regulations.
Despite the Government’s two stated interests: (1) “the promotion of public health” and (2) “assuring that women have equal access to health care services,” the Court notes that any employers with fifty (50) or less employees do not have to provide their employees with any health care coverage at all. 26 U.S.C. § 4980H(c)(2)(A).
In addition, religious employers who can meet the criteria for an “exemption” have to provide health coverage to their employees, but do not have to offer contraceptive products, services, and counseling. They do not have to “sign a form” thereby facilitating/initiating the provision of contraceptive products, services, and counseling through a third party.
Finally, there are “innumerable” employers who have “grandfathered” health coverage plans which may or may not provide for all of the components required under the ACA, including the contraceptive products, services, and counseling required by the contraceptive mandate.
As stated by this Court in Zubik and Persico: . . .[T]he combined nationwide total of all of those employers who fall within an exclusion, an exemption, or whose plans are “grandfathered” (approximately 100 million individuals are on “grandfathered” health plans) creates such an “underinclusiveness” which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs.
50

Zubik, 983 F.Supp.2d at 614. During the course of the proceedings in the instant case, the Government did not present
any evidence to illustrate how its harm “outweighs” the irreparable harm Plaintiffs would suffer absent an injunction.
Thus, this Court concludes that enjoining the Government from enforcing the contraceptive mandate against these few Plaintiffs cannot be as overwhelming a government interest in light of the millions of people who have been exempted from the entire ACA or large portions of the ACA (i.e., Congress, the Territories, labor unions, etc.).
4. Public Interest To determine whether granting a permanent injunction is in the “public interest” (and thereby meet the final part of the permanent injunction test), this Court must ascertain whether greater injury will result from refusing rather than granting the relief requested. See Trefelner ex rel. Trefelner v. Burrell School Dist., 655 F.Supp.2d 581, 597-8 (“With regard to the public interest prong, the court finds that granting the temporary restraining order is in the public interest. The focus of this prong is ‘whether there are policy considerations that bear on whether the order should issue,’” citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE § 2948.4 (Civil 2d ed. 1995)). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); see also Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941). This Court’s “decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court,” the “traditional principles of equity” demand a fair weighing of the factors listed above, taking into account the unique circumstances of each case. eBay, 547
51

U.S. at 391, 394. This Court recognizes the importance of considering the totality of circumstances bearing on whether a permanent injunction is appropriate equitable relief.
Turning to the instant matter, Plaintiffs in this case have requested that the Court grant them a permanent injunction, arguing that the ACA and the religious employer “accommodation,” which requires them to facilitate/initiate compliance with the contraceptive mandate, violates their rights under the RFRA and the Free Exercise Clause of the First Amendment.
After careful consideration of this matter and drawing from the Court’s experience in the two substantially similar matters – Zubik and Persico– containing identical issues presented for consideration, the Court concludes that it is not in the public interest to allow the Government to sever the Catholic Church into two parts (i.e., worship and faith, and “good works”) through the application of the “accommodation.” To do otherwise would enable the Government to restrict these Plaintiffs’ right to the free exercise of religion as set forth in the First Amendment (and as further protected by the RFRA) to a “right to worship” only. This reflective consideration as to nonprofit, religious affiliated/related entities, including Plaintiffs, is all the more in the public interest, because the Free Exercise of Religion is a fundamental right.
Moreover, this Court also concludes that public interest is best served if Plaintiffs (nonprofit, affiliated/related organizations) can continue to provide needed educational and social services to the public-at-large. As noted by Monsignor Riffle, one of the Plaintiffs, Catholic Charities, can take over 180 telephone calls per day “for food, for clothing, for diapers, for shelter, for fuel both for automobile and for home. And our work in Catholic Charities is to find existing services that provide those assets to them or provide them ourselves through the works
52

of the Diocese.” Hearing transcript, doc. no. 40, pp. 66-67. When asked to value those services Catholic Charities provides to the public at large, Monsignor Riffle poignantly stated:
It would be in the words of the one commercial, I think, priceless basically because how do you put a value on talking someone out of a suicide? How do you put a value on providing a young pregnant woman with a place to go and with options to be healthy herself and to keep her baby? How do you put a value on providing formula or diapers for an infant or housing in the middle of a cold winter storm? I don't know how you put a value on that. It is priceless. Hearing transcript, doc. no. 40, pp. 67-68. The Court finds that the public interest is also best served if Plaintiffs (non-profit, affiliated/related organizations) can continue to provide needed educational and social services, without the threat of substantial fines for non-compliance with the contraceptive mandate as imposed upon them via the “accommodation.” Thus, as to the public interest, the Court views this factor as unquestionably favoring injunctive relief in this case.
VI. Conclusion Based upon the foregoing Findings of Fact, Conclusions of Law, and cited legal authority, the Court concludes that Plaintiffs have met their burden of proving all four criteria of the permanent injunction test, and thus, Plaintiffs’ request for a permanent injunction will be GRANTED.
s/ Arthur J. Schwab Arthur J. Schwab United States District Court Judge cc: All counsel of record
53

 
 Case 2:14-cv-00681-AJS Document 43 Filed 08/20/14 Page 1 of 4

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

MOST REVEREND LAWRENCE E. BRANDT, Bishop of the Roman Catholic Diocese of Greensburg, as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust, ET AL.,

14cv0681 ELECTRONICALLY FILED

Plaintiffs,

v.

SYLVIA M. BURWELL, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

FINAL JUDGMENT AND ORDER Upon consideration of the Parties’ written submissions related to Plaintiffs’ Motion for Expedited Preliminary Injunction (doc. nos. 16, 17, 23, and 24), the Stipulations of Undisputed Facts prepared and jointly filed by the Parties (doc. nos. 22 and 29), the Parties’ supplemental written submissions related to the Additional Stipulation of Undisputed Fact (doc. nos. 35 and 36), the evidence presented at the permanent injunction hearing held on July 18, 2014 (doc. nos. 39-1 through 39-95), and the oral arguments presented during the July 18, 2014 hearing, and for the reasons set forth in this Court’s August 20, 2014 Memorandum Opinion, which includes the Court’s Findings of Fact and Conclusions of Law (doc. no. 42),

THE COURT hereby expressly incorporates, adopts, re-affirms, and follows its August 20, 2014 Memorandum Opinion filed contemporaneously herewith at doc. no. 42.

Case 2:14-cv-00681-AJS Document 43 Filed 08/20/14 Page 2 of 4
THE COURT hereby finds:  Defendants have conceded that their arguments are identical to those made in Most Reverend David A. Zubik et. al v. Secretary of the U.S. Dept. of Health and Human Services, et. al. (case no. 13cv1459), and Most Reverend Lawrence T. Persico et. al v. Secretary of the U.S. Dept. of Health and Human Services, et. al. (case no. 13cv303), with the exception of one additional argument being made in this case;  The Court’s August 20, 2014 Memorandum Opinion, filed contemporaneously with this Order, addresses all of Plaintiffs arguments and all of Defendants’ arguments and therefore provides a sufficient basis to grant a permanent injunction;
THE COURT further hereby finds, that:  Plaintiffs have met their burden of demonstrating a substantial burden on their religious exercise;  The Government has not met its burden of demonstrating that it used the least restrictive means of achieving any compelling governmental interest; and  Therefore, Plaintiffs have established actual success on their claim that the requirements imposed upon Plaintiffs in 42 U.S.C. § 300gg-13(a)(4), and as further regulated by 45 C.F.R. § 1 47.l30(a)(1)(iv), violate the Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-l;
2

Case 2:14-cv-00681-AJS Document 43 Filed 08/20/14 Page 3 of 4
THE COURT hereby finds that Plaintiffs have satisfied all the elements of the permanent injunction standard as articulated in Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157 (2010) and Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001), based on the foregoing Findings and for the reasons stated in the Court’s August 20, 2014 Memorandum Opinion filed at doc. no. 42.
IT IS HEREBY ORDERED that Plaintiffs’ Motion for a Preliminary Injunction is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants, their agents, officers, and employees are hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.C. § 300gg13(a)(4) and as further regulated by 45 C.F.R. § 147.130(a)(l)(iv) upon the Plaintiffs, including:
(a) Plaintiff Most Reverend Lawrence E. Brandt, Bishop of the Roman Catholic Diocese of Greensburg, shall not have to sign or authorize any entity under their control to sign the self-certification form;
(b) Plaintiff the Roman Catholic Diocese of Greensburg shall be allowed to continue sponsoring their health plans, including through the Greensburg Series of the Catholic Employers Benefits Trust, without having to comply with the Mandate, including the accommodation;
(c) Plaintiffs Catholic Charities of the Diocese of Greensburg and St. John the Evangelist Regional Catholic School shall not have to comply with the Mandate, including the accommodation.
3

Case 2:14-cv-00681-AJS Document 43 Filed 08/20/14 Page 4 of 4 IT IS FURTHER ORDERED that Defendants shall send Notice of this permanent injunction to Plaintiffs’ Third Party Administrators, on or before September 16, 2014, with a copy to Plaintiffs’ counsel and to the Court; and IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate. THIS COURT shall retain jurisdiction to enforce this Final Judgment and Order.
SO ORDERED, this 20th day of August, 2014. s/ Arthur J. Schwab Arthur J. Schwab United States District Court Judge
4

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
2of 10

Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
3of10

19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
4of10

c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
6of 10

42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
7of 10

11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
8 of10

of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
10 of10

EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 1 of 12
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:14−cv−00681−AJS

CLOSED

BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG et al v. SEBELIUS et al Assigned to: Judge Arthur J. Schwab related Cases: 2:13−cv−00930−AJS
2:13−cv−01459−AJS
Case in other court: Third Circuit, 14−03663
Third Circuit, 14−04087 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 05/27/2014 Date Terminated: 08/20/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

MOST REVEREND LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG as Trustee of the Roman Catholic Diocese of Greensburg, a Charitable Trust

represented by John D. Goetz Jones Day One Mellon Center Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Email: jdgoetz@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Kilmartin Jones Day 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 412−394−3939 Fax: 412−394−7959 Email: amkilmartin@jonesday.com TERMINATED: 09/17/2015 ATTORNEY TO BE NOTICED

Ira M. Karoll Jones Day 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 412−391−3939 Fax: 412−394−7959 Email: ikaroll@jonesday.com ATTORNEY TO BE NOTICED

Leon F. DeJulius Jones Day 500 Grant Street One Mellon Center Suite 4500 Pittsburgh, PA 15219 (412) 394−9528 Fax: (412) 394−7959 Email: lfdejulius@jonesday.com ATTORNEY TO BE NOTICED

Mary Pat Stahler Morgan Lewis & Bockius LLP One Oxford Centre 32nd Floor Pittsburgh, PA 15219 412−560−7442 Fax: 412−560−7001

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 2 of 12

Email: marypat.stahler@morganlewis.com TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

Paul M. Pohl Jones Day 500 Grant St. Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Email: pmpohl@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff
THE ROMAN CATHOLIC DIOCESE OF GREENSBURG as the Beneficial Owner of the Greensburg series of the Catholic Benefits Trust

represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Kilmartin (See above for address) TERMINATED: 09/17/2015 ATTORNEY TO BE NOTICED

Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED

Leon F. DeJulius (See above for address) ATTORNEY TO BE NOTICED

Mary Pat Stahler (See above for address) TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

Paul M. Pohl (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG an affiliate nonprofit corporation of the Roman Catholic Diocese of Greensburg

represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M. Kilmartin (See above for address) TERMINATED: 09/17/2015 ATTORNEY TO BE NOTICED

Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED

Leon F. DeJulius (See above for address) ATTORNEY TO BE NOTICED

Mary Pat Stahler (See above for address) TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 3 of 12

Plaintiff
ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL an affiliate Charitable Trust of the Roman Catholic Diocese of Greensburg

Paul M. Pohl (See above for address) ATTORNEY TO BE NOTICED
represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Kilmartin (See above for address) TERMINATED: 09/17/2015 ATTORNEY TO BE NOTICED
Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED
Leon F. DeJulius (See above for address) ATTORNEY TO BE NOTICED
Mary Pat Stahler (See above for address) TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED
Paul M. Pohl (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
KATHLEEN SEBELIUS in her official capacity as Secretary of the U.S. Department of Health and Human Services

represented by Adam Grogg U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave. NW Washington, DC 20037 202−514−2395 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P. Humphreys U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave, N.W. Room 7219 Washington, DC 20530 (202) 514−3367 Fax: (202) 616−8470 Email: bradley.p.humphreys@usdoj.gov TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Bennett U.S. Department of Justice 20 Massachusetts Avenue NW, Rm. 7310

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 4 of 12

Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
THOMAS PEREZ in his official capacity as Secretary of the U.S. Department of Labor

represented by Adam Grogg (See above for address) TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

Defendant
JACOB J. LEW in his official capacity as Secretary of the U.S. Department of Treasury

represented by Adam Grogg (See above for address) TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

Defendant
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Adam Grogg (See above for address) TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

Defendant

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 5 of 12

U.S. DEPARTMENT OF LABOR

represented by Adam Grogg (See above for address) TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

Defendant U.S. DEPARTMENT OF TREASURY

represented by Adam Grogg (See above for address) TERMINATED: 08/16/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

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

Date Filed 05/27/2014
05/27/2014 05/27/2014

# Docket Text
1 COMPLAINT against JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY (Filing fee, including Administrative fee, $400, receipt number 0315−3207337), filed by THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons Eric Holder, # 4 Summons Kathleen Sebelius, # 5 Summons Jacob Lew, # 6 Summons Thomas Perez, # 7 Summons U.S. Department of Health and Human Services, # 8 Summons U.S. Department of Labor, # 9 Summons U.S. Department of Treasury) (ept) (Entered: 05/27/2014)
Summons Issued as to *JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY.* (ept) (Entered: 05/27/2014)
2 MOTION for expedited scheduling order and expedited status conference by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Attachments: # 1 Proposed Order) (ept) (Entered: 05/27/2014)

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 6 of 12

05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/27/2014 05/28/2014
05/28/2014
05/28/2014 05/28/2014 05/29/2014

3 Disclosure Statement identifying None as corporate parent or other affiliate, by THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 05/27/2014)
4 Disclosure Statement identifying None as corporate parent or other affiliate, by CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 05/27/2014)
5 Disclosure Statement identifying None as corporate parent or other affiliate, by ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL. (Goetz, John) (Entered: 05/27/2014)
6 NOTICE of Appearance by Paul M. Pohl on behalf of LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Pohl, Paul) (Entered: 05/27/2014)
7 NOTICE of Appearance by Leon F. DeJulius on behalf of LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (DeJulius, Leon) (Entered: 05/27/2014)
8 NOTICE of Appearance by Mary Pat Stahler on behalf of LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Stahler, Mary Pat) (Entered: 05/27/2014)
9 NOTICE of Appearance by Ira M. Karoll on behalf of LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Karoll, Ira) (Entered: 05/27/2014)
ORDER OF COURT. The Court hereby ORDERS the Lead Trial Counsel for each of the parties attend, in person, a Status Conference on Wednesday, June 4, 2014 at 8:00 AM in Courtroom 7C, 7th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Signed by Judge Arthur J. Schwab on 5/28/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lmt) (Entered: 05/28/2014)
ORDER OF COURT. In preparation for the Status Conference set for June 4, 2014, at 8:00 a.m., Lead Trial Counsel for the parties are directed to meet and confer, face−to−face, and to hold extensive and in−depth discussions on the issues relevant to the orderly preparation and trial of these matters, including a consent decree pending ruling in the appeals of case nos. 13−cv−0303 and 13−cv−1459, in the jury room of this Court on Tuesday, June 3, 2014 at 1:00 p.m. Counsel for Plaintiff is directed to immediately serve a copy of this Order and the Prior Order (concerning the date and time of the status conference) on the Government. Signed by Judge Arthur J. Schwab on 5/28/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lmt) (Entered: 05/28/2014)
10 NOTICE of Appearance by Bradley P. Humphreys on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 05/28/2014)
11 MOTION to Reassign Case by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 05/28/2014)
12 RESPONSE IN OPPOSITION re 11 MOTION to Reassign Case filed by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 7 of 12

05/29/2014 05/29/2014 05/29/2014 05/29/2014
05/30/2014 05/30/2014 06/03/2014 06/03/2014 06/03/2014 06/05/2014

CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) Modified on 5/30/2014 to correct title of event selected. (ept) (Entered: 05/29/2014)
13 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (ms) (Entered: 05/29/2014)
14 Unopposed MOTION to Modify the Court's May 28, 2014 Order to Reschedule Status Conference by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 05/29/2014)
15 ORDER denying 11 Motion to Reassign Case. Signed by Judge Arthur J. Schwab on 5/29/2014. (lmt) (Entered: 05/29/2014)
ORDER OF COURT MODIFYING SCHEDULING ORDERS. The Court hereby modifies its two prior scheduling Orders as follows: First, the Court hereby ORDERS the Lead Trial Counsel for each of the parties attend, in person, a Status Conference on Tuesday, June 3, 2014 at 1:00 PM in Courtroom 7C, 7th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Second, in preparation for the Status Conference set for June 3, 2014, at 1:00 p.m., Lead Trial Counsel for the parties are directed to meet and confer, face−to−face, and to hold extensive and in−depth discussions on the issues relevant to the orderly preparation and trial of these matters, including a consent decree pending ruling in the appeals of case nos. 13−cv−0303 and 13−cv−1459, in the jury room of this Court on Monday, June 2, 2014 at 2:00 p.m. Signed by Judge Arthur J. Schwab on 5/29/2014. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lmt) (Entered: 05/29/2014)
16 MOTION for Preliminary Injunction Expedited by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Attachments: # 1 Proposed Order) (Goetz, John) (Entered: 05/30/2014)
17 BRIEF in Support re 16 Motion for Preliminary Injunction, filed by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7) (Goetz, John) (Entered: 05/30/2014)
18 SCHEDULING ORDER granting 2 Motion for Expedited Scheduling Order −− Defendants' Response Brief to Preliminary Injunction is due by 6/10/14; Plaintiffs' Reply Brief (if any) is due by 6/13/14; Permanent Injunction hearing scheduled for 7/16/14 at 8:15 AM in Courtroom 7C before The Honorable Arthur J. Schwab. Signed by Judge Arthur J. Schwab on 6/3/14. (ms) (Entered: 06/03/2014)
19 Minute Entry for proceedings held before Judge Arthur J. Schwab: Status Conference held on 6/3/2014, Response to Motion for Preliminary Injunction 16 due by 6/10/2014, Reply to Response, if any, due by 6/13/2014, Permanent Injunction Hearing set for 7/16/2014 at 08:15 AM before Judge Arthur J. Schwab. Pretrial Order to follow. (Court Reporter: Richard Ford) (lck) (Entered: 06/03/2014)
Response to Motion due by 6/10/2013; Reply brief due by 6/13/2013; Preliminary Injunction Hearing set for 7/16/2014 at 8:15 AM in Courtroom 7C before Judge Arthur J. Schwab. (ms) (Entered: 06/03/2014)
20 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on June 3, 2014 before Judge Arthur J. Schwab. Court Reporter Richard Ford, Telephone number (412) 261−0802. The parties have seven (7) calendar days to file with the court a

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 8 of 12

06/06/2014
06/06/2014 06/10/2014 06/13/2014 06/19/2014
06/20/2014 06/20/2014 07/03/2014 07/09/2014 07/10/2014

Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 6/12/2014. Redaction Request due 6/26/2014. Redacted Transcript Deadline set for 7/7/2014. Release of Transcript Restriction set for 9/3/2014. (rtf, ) (Entered: 06/05/2014)
21 SUMMONS/Return of Service Returned Executed by THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG. THOMAS PEREZ served on 5/27/2014, answer due 7/28/2014; KATHLEEN SEBELIUS served on 5/27/2014, answer due 7/28/2014; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 5/27/2014, answer due 7/28/2014. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Stahler, Mary Pat) (Entered: 06/06/2014)
22 STIPULATION to Undisputed Facts by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 06/06/2014)
23 BRIEF in Opposition re 16 Motion for Preliminary Injunction, filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 06/10/2014)
24 REPLY BRIEF re 16 Motion for Preliminary Injunction, filed by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 06/13/2014)
25 SUMMONS/Return of Service Returned Executed by THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG. JACOB J. LEW served on 5/27/2014, answer due 7/28/2014; U.S. DEPARTMENT OF LABOR served on 5/27/2014, answer due 7/28/2014; U.S. DEPARTMENT OF TREASURY served on 5/27/2014, answer due 7/28/2014. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Stahler, Mary Pat) (Entered: 06/19/2014)
26 MEMORANDUM OPINION. Signed by Judge Arthur J. Schwab on 6/20/2014. (lmt) (Entered: 06/20/2014)
27 ORDER granting 16 Motion for Preliminary Injunction. Signed by Judge Arthur J. Schwab on 6/20/2014. (lmt) (Entered: 06/20/2014)
28 Proposed Order Joint by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 07/03/2014)
29 STIPULATION of Additional Fact on Behalf of the Parties by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 07/09/2014)
ORDER RESCHEDULING the Permanent Injunction Hearing by agreement of all Parties. The Permanent Injunction Hearing shall be held on Friday, July 18, 2014, at 8:00 a.m. in Courtroom 7C, 7th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Signed by Judge Arthur J. Schwab on 7/10/2014. Text−only

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 9 of 12

07/10/2014 07/11/2014 07/14/2014 07/14/2014 07/14/2014
07/15/2014 07/15/2014 07/15/2014
07/17/2014 07/18/2014 07/18/2014

entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lmt) (Entered: 07/10/2014)
30 ORDER OF COURT related to 29 Additional Stipulation filed by the Parties. Signed by Judge Arthur J. Schwab on 7/10/2014. (lmt) (Entered: 07/10/2014)
31 Exhibit List Joint by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 07/11/2014)
32 NOTICE of Appearance by Alison M. Kilmartin on behalf of LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Kilmartin, Alison) (Entered: 07/14/2014)
33 MOTION to Postpone Permanent Injunction Hearing by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 07/14/2014)
34 RESPONSE to Motion re 33 MOTION to Postpone Permanent Injunction Hearing filed by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Goetz, John) (Entered: 07/14/2014)
TEXT ORDER DENYING 33 Motion to Postpone Permanent Injunction Hearing. The Government's Motion is denied in light of the short notice of the request and the Court's schedule. Signed by Judge Arthur J. Schwab on 7/15/14. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 07/15/2014)
35 Supplemental BRIEF Regarding the Parties' Additional Stipulation of Fact to 30 Order, filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) Modified on 7/16/2014 to correct title of event selected. (ept2) (Entered: 07/15/2014)
36 BRIEF Regarding the Significance of the Parties' Additional Stipulation to Undisputed Fact to 30 Order, filed by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Attachments: # 1 Exhibit 1 − Supplemental Declaration of Charles Quiggle) (Goetz, John) Modified on 7/16/2014 to correct title of event selected. (ept2) (Entered: 07/15/2014)
37 ORDER OF COURT on Defendants' objections to Plaintiffs' Exhibits. Signed by Judge Arthur J. Schwab on 7/17/2014. (lmt) (Entered: 07/17/2014)
38 Minute Entry for proceedings held before Judge Arthur J. Schwab: Permanent Injunction Hearing held on 7/18/2014. (Court Reporter: Shirley Hall) (lck)) (Entered: 07/18/2014)
39 NOTICE of Filing Plaintiffs' Exhibits Admitted into Evidence at the July 18, 2014 Permanent Injunction Hearing by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG (Attachments: # 1 Plaintiffs' Exhibit 1, # 2 Plaintiffs' Exhibit 2, # 3 Plaintiffs' Exhibit 3, # 4 Plaintiffs' Exhibit 4, # 5 Plaintiffs' Exhibit 5, # 6 Plaintiffs' Exhibit 6, # 7 Plaintiffs' Exhibit 7 (part 1), # 8 Plaintiffs' Exhibit 7 (part 2), # 9 Plaintiffs' Exhibit 8, #

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 10 of 12

08/04/2014
08/18/2014
08/20/2014 08/20/2014 09/18/2014

10 Plaintiffs' Exhibit 9, # 11 Plaintiffs' Exhibit 10, # 12 Plaintiffs' Exhibit 11, # 13 Plaintiffs' Exhibit 12, # 14 Plaintiffs' Exhibit 13, # 15 Plaintiffs' Exhibit 14, # 16 Plaintiffs' Exhibit 15, # 17 Plaintiffs' Exhibit 16, # 18 Plaintiffs' Exhibit 17, # 19 Plaintiffs' Exhibit 18, # 20 Plaintiffs' Exhibit 19, # 21 Plaintiffs' Exhibit 20, # 22 Plaintiffs' Exhibit 21, # 23 Plaintiffs' Exhibit 22, # 24 Plaintiffs' Exhibit 23, # 25 Plaintiffs' Exhibit 24, # 26 Plaintiffs' Exhibit 25, # 27 Plaintiffs' Exhibit 26 (part 1), # 28 Plaintiffs' Exhibit 26 (part 2), # 29 Plaintiffs' Exhibit 26 (part 3), # 30 Plaintiffs' Exhibit 26 (part 4), # 31 Plaintiffs' Exhibit 27, # 32 Plaintiffs' Exhibit 28, # 33 Plaintiffs' Exhibit 29, # 34 Plaintiffs' Exhibit 30, # 35 Plaintiffs' Exhibit 31, # 36 Plaintiffs' Exhibit 32, # 37 Plaintiffs' Exhibit 33, # 38 Plaintiffs' Exhibit 34, # 39 Plaintiffs' Exhibit 35 (part 1), # 40 Plaintiffs' Exhibit 35 (part 2), # 41 Plaintiffs' Exhibit 35 (part 3), # 42 Plaintiffs' Exhibit 35 (part 4), # 43 Plaintiffs' Exhibit 36 (part 1), # 44 Plaintiffs' Exhibit 36 (part 2), # 45 Plaintiffs' Exhibit 36 (part 3), # 46 Plaintiffs' Exhibit 36 (part 4), # 47 Plaintiffs' Exhibit 36 (part 5), # 48 Plaintiffs' Exhibit 36 (part 6), # 49 Plaintiffs' Exhibit 37, # 50 Plaintiffs' Exhibit 38, # 51 Plaintiffs' Exhibit 39, # 52 Plaintiffs' Exhibit 40, # 53 Plaintiffs' Exhibit 41, # 54 Plaintiffs' Exhibit 42, # 55 Plaintiffs' Exhibit 43, # 56 Plaintiffs' Exhibit 44, # 57 Plaintiffs' Exhibit 45, # 58 Plaintiffs' Exhibit 46, # 59 Plaintiffs' Exhibit 47, # 60 Plaintiffs' Exhibit 48, # 61 Plaintiffs' Exhibit 49, # 62 Plaintiffs' Exhibit 50, # 63 Plaintiffs' Exhibit 51, # 64 Plaintiffs' Exhibit 52, # 65 Plaintiffs' Exhibit 53, # 66 Plaintiffs' Exhibit 54, # 67 Plaintiffs' Exhibit 55, # 68 Plaintiffs' Exhibit 56, # 69 Plaintiffs' Exhibit 57, # 70 Plaintiffs' Exhibit 58, # 71 Plaintiffs' Exhibit 59, # 72 Plaintiffs' Exhibit 60, # 73 Plaintiffs' Exhibit 61, # 74 Plaintiffs' Exhibit 62, # 75 Plaintiffs' Exhibit 63, # 76 Plaintiffs' Exhibit 64, # 77 Plaintiffs' Exhibit 65, # 78 Plaintiffs' Exhibit 66, # 79 Plaintiffs' Exhibit 67, # 80 Plaintiffs' Exhibit 68, # 81 Plaintiffs' Exhibit 69, # 82 Plaintiffs' Exhibit 70, # 83 Plaintiffs' Exhibit 71, # 84 Plaintiffs' Exhibit 72, # 85 Plaintiffs' Exhibit 73 (part 1), # 86 Plaintiffs' Exhibit 73 (part 2), # 87 Plaintiffs' Exhibit 73 (part 3), # 88 Plaintiffs' Exhibit 74, # 89 Plaintiffs' Exhibit 75, # 90 Plaintiffs' Exhibit 76 (part 1), # 91 Plaintiffs' Exhibit 76 (part 2), # 92 Plaintiffs' Exhibit 76 (part 3), # 93 Plaintiffs' Exhibit 76 (part 4), # 94 Plaintiffs' Exhibit 76 (part 5), # 95 Plaintiffs' Exhibit 76 (part 6)) (Goetz, John) (Entered: 07/18/2014)
40 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on Friday, July 18, 2014, before Judge Arthur J. Schwab. Court Reporter Shirley Hall, Telephone number 412.765.0408. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 8/11/2014. Redaction Request due 8/25/2014. Redacted Transcript Deadline set for 9/4/2014. Release of Transcript Restriction set for 11/3/2014. (sah, ) (Entered: 08/04/2014)
41 NOTICE OF APPEAL as to 27 Order on Motion for Preliminary Injunction by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): N/A. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) (Entered: 08/18/2014)
42 MEMORANDUM OPINION RE: PLAINTIFFS' MOTION FOR PERMANENT INJUNCTION. Signed by Judge Arthur J. Schwab on 8/20/2014. (lmt) (Entered: 08/20/2014)
43 ORDER in favor of Plaintiffs against Defendants granting PERMANENT INJUNCTION. Signed by Judge Arthur J. Schwab on 8/20/2014. (lmt) (Entered: 08/20/2014)
45 TRANSCRIPT REQUEST re 41 Notice of Appeal by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 11 of 12

09/19/2014 10/03/2014
11/04/2014 03/03/2015 03/06/2015 03/06/2015 09/16/2015 09/17/2015 09/30/2015 10/01/2015 08/16/2017 08/16/2017

TREASURY Transcript is unnecessary for appeal purposes (Humphreys, Bradley) (Entered: 09/18/2014)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 45 TPO (Transcript Purchase Order Request). ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only. (ept2) (Entered: 09/19/2014)
46 NOTICE OF APPEAL as to 43 Judgment, Permanent Injunction by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): Shirley Hall. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) (Entered: 10/03/2014)
Record complete for Appeal purposes re 41 Notice of Appeal. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified copy of the docket entries. (ept2) (Entered: 11/04/2014)
48 NOTICE of Appearance by Adam Grogg on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Grogg, Adam) (Entered: 03/03/2015)
49 Unopposed MOTION of Bradley P. Humphreys to Withdraw as Attorney by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachment: # 1 Proposed Order) (Humphreys, Bradley) Modified on 3/9/2015. (jsp) (Entered: 03/06/2015)
50 ORDER GRANTING 49 Motion to Withdraw as Attorney. Attorney Bradley P. Humphreys terminated. Signed by Judge Arthur J. Schwab on 3/6/15. (lck) (Entered: 03/06/2015)
51 MOTION to Withdraw as Attorney by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Kilmartin, Alison) (Entered: 09/16/2015)
52 ORDER GRANTING 51 Motion to Withdraw as Attorney. Attorney Alison M. Kilmartin terminated. Signed by Judge Arthur J. Schwab on 9/17/15. (lck) (Entered: 09/17/2015)
53 MOTION to Withdraw as Attorney by LAWRENCE E. BRANDT, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF GREENSBURG, CATHOLIC CHARITIES OF THE DIOCESE OF GREENSBURG, ST. JOHN THE EVANGELIST REGIONAL CATHOLIC SCHOOL, THE ROMAN CATHOLIC DIOCESE OF GREENSBURG. (Stahler, Mary Pat) (Entered: 09/30/2015)
54 TEXT ORDER granting 53 Motion to Withdraw as Attorney. Attorney Mary Pat Stahler terminated. Signed by Judge Arthur J. Schwab on 10/1/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 10/01/2015)
55 NOTICE of Appearance by Michelle Bennett on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Bennett, Michelle) (Entered: 08/16/2017)
56 MOTION to Withdraw as Attorney by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Grogg, Adam) (Entered:

Case: 2:14-cv-681 As of: 01/08/2018 09:19 PM EST 12 of 12

08/16/2017 10/19/2017

08/16/2017)
57 ORDER GRANTING 56 Motion to Withdraw as Attorney. Attorney Adam Grogg terminated. Signed by Judge Arthur J. Schwab on 8/16/17. (lck) (Entered: 08/16/2017)
58 CERTIFIED ORDER of USCA in lieu of formal MANDATE as to 41 Notice of Appeal filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS, 46 Notice of Appeal,, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS; case is dismissed in USCA pursuant to FRAP 42(b). (jk3) Text modified on 10/20/2017. (ept) (Entered: 10/19/2017)