Case 1:12-cv-00123-SPB Document 1 Filed 05/21/12 Page 1 of 56

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

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MOST REVEREND DONALD W.

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TRAUTMAN, BISHOP OF THE ROMAN )

CATHOLIC DIOCESE OF ERIE, as

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Trustee for The Roman Catholic Diocese )

of Erie, a Charitable Trust; The ROMAN )

CATHOLIC DIOCESE OF ERIE;

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ST. MARTIN CENTER, INC., an affiliate )

nonprofit corporation of Catholic

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Charities of the Diocese of Erie; and

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PRINCE OF PEACE CENTER, INC., an )

affiliate nonprofit corporation of Catholic )

Charities of the Diocese of Erie,

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PLAINTIFFS,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; HILDA SOLIS, in her official )

capacity as Secretary of the U.S.

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Department of Labor; TIMOTHY

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GEITHNER, in his official capacity as

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Secretary of the U.S. Department of

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Treasury; U.S. DEPARTMENT OF

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HEALTH AND HUMAN SERVICES;

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U.S. DEPARTMENT OF LABOR; and )

U.S. DEPARTMENT OF TREASURY, )

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DEFENDANTS.

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CIVIL ACTION NO. __1_2_-__1_2_3__E__r_ie JURY TRIAL DEMAND

COMPLAINT 1. This lawsuit is about an unprecedented attack by the Government on one of

America’s most cherished freedoms: the freedom to practice one’s religion without government

interference. It is not about whether people have a right to abortifacients, sterilization services,

contraceptives, and related counseling services. It is about whether the Government may force

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Plaintiffs—all Catholic entities—to subsidize, provide, and/or facilitate those services contrary to their firmly held religious beliefs. American history and tradition, embodied in the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act (“RFRA”), protect religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiff, the Most Reverend Donald W. Trautman, is both Bishop and Trustee of Plaintiff The Roman Catholic Diocese of Erie (the “Diocese”), which is geographically, the largest diocese in Pennsylvania. The Diocese serves Catholic and non-Catholic residents of Northwestern Pennsylvania in three main ways: by educating children within the Diocese, by promoting spiritual growth, and by service to the community. The Diocese carries out this work both on its own and through the work of related organizations, including Plaintiffs St. Martin Center, Inc. (“St. Martin Center”) and Prince of Peace Center, Inc. (“Prince of Peace Center”).
3. Plaintiffs serve individuals in Northwestern Pennsylvania that the Government does not or cannot serve and who without Plaintiffs’ assistance would be without food, shelter, and other basic life-sustaining services.
4. In every respect, Plaintiffs’ work is guided by and consistent with the teaching of the Catholic Church, of which Plaintiffs are a constituent part. Among these core teachings is the Catholic tenet that life begins at conception and continues through natural death. As is well known, Catholic doctrine regards abortion, sterilization, and contraception as gravely contrary to the moral law.
5. Catholics also believe that, according to Christ’s command, devotion to God is demonstrated through devotion to all people regardless of their faith or financial condition. Catholic social teaching requires Catholic individuals and organizations to work to create a more
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just community by striving to meet needs wherever they arise. Plaintiffs meet needs in Northwestern Pennsylvania through their respective ministries.
6. The Diocese serves families in Northwestern Pennsylvania through the education of the students in its school system and by providing support to the charitable programs of Catholic Charities of the Diocese of Erie (“Catholic Charities”), including programs operated by Plaintiffs St. Martin Center and Prince of Peace Center.
7. Plaintiffs serve all people, regardless of faith or financial condition. 8. The Government is now attacking Plaintiffs’ religious beliefs in an unprecedented manner—forcing Plaintiffs to choose between respecting the sanctity of all human life, on the one hand, and fulfilling their religious mission to provide opportunities and charitable support to all people regardless of their faith, on the other. 9. The Government, through “regulations” promulgated in violation of the Administrative Procedure Act (“APA”), has mandated that Plaintiffs provide health plans to their employees which include coverage for abortifacients, sterilization services, contraceptives, and related counseling services that the Church holds to be intrinsically immoral. 10. Defendants have promulgated various rules (collectively “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely-held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to subsidize, provide, and/or facilitate the coverage of abortifacients, sterilization services, contraceptives, and related counseling services in their employee health plans in violation of their sincerely-held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption to the U.S. Government Mandate for certain “religious employers” who can convince the Government that they satisfy four criteria: “(1) The
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inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”
11. Thus, in order to safeguard their religious freedom, religious employers must plead with government bureaucrats for a determination that they are sufficiently “religious.”
12. The Diocese does not know whether the Department of Health and Human Services will conclude that it satisfies the U.S. Government Mandate’s narrow definition of “religious employer” under the impermissibly vague terms of the exemption. In order for the Diocese to learn whether or not it qualifies for the exemption, it must submit to an intrusive governmental investigation into whether, in the view of the Department of Health and Human Services, its “purpose” is the “inculcation of religious values,” whether it “primarily” employs Catholics, and whether it “primarily” serves Catholics.
13. The definition of “religious employer,” moreover, excludes St. Martin Center and Prince of Peace Center, even though they are “religious” organizations under any reasonable definition of the term.
14. Consequently, to even attempt to qualify as a “religious employer,” these Plaintiffs may be required to stop serving non-Catholics, and fire non-Catholic employees — actions that would betray their religious commitment to serving all in need without regard to religion and threaten to undermine the Church’s vaunted tradition of service to others.
15. The only other choice available to Plaintiffs is to disobey the law, either by refusing to provide the mandated services or dropping their health plans. In so doing, Plaintiffs
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may well be subject to substantial fines and penalties, which would hamper the provision of important services and erode the funds that they use to carry out their educational and charitable missions.
16. The Government, therefore, has mandated that Plaintiffs either abandon their religious beliefs or abandon their religious commitment to serve all. The “options” imposed by the U.S. Government Mandate are therefore no “options” at all.
17. The regulations establishing the U.S. Government Mandate, including the narrow exemption, are existing law. Nevertheless, the Government has expressed an intent to implement a vaguely defined “accommodation” of certain religious organizations. Under this proposed accommodation, if a non-exempt religious organization objects to offering coverage for the mandated services, the Government would require that organization’s insurance company (or another, as yet undefined third party) to directly and “automatically” provide coverage for those services to the organization’s employees “free of charge.”
18. Regardless, however, the promise that a third-party insurer or administrator will provide the illicit services “free of charge,” even if implemented, would do nothing to change the actual effect of the U.S. Government Mandate.
19. Moreover, the accommodation is predicated on an accounting gimmick that would not affect the actual operation of the regulations as applied to religious organizations. The Diocese’s purchase of an insurance policy will result in the subsidy, provision, and/or facilitation of coverage for abortifacients, sterilization services, contraceptives, and related counseling services, even if, as an accounting matter, the insurer or administrator putatively “pays” for those services or provides them for “free.”
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20. The Catholic Church’s two-thousand-year-old objections to abortion, sterilization, and contraception, however, cannot be solved through such sleight of hand. Catholic teaching does not simply require Catholic institutions to avoid directly subsidizing practices that are viewed as intrinsically immoral. It also requires them to avoid facilitating those practices.
21. The U.S. Government Mandate forces Plaintiffs to take action subsidizing, providing, and/or facilitating coverage for abortifacients, sterilization services, contraceptives, and related counseling services in violation of their religious beliefs.
22. This unprecedented, direct assault on the religious beliefs of Catholics is irreconcilable with American law.
23. RFRA, the First Amendment, and the APA stand as bulwarks against such arbitrary governmental action.
24. RFRA and the First Amendment require the most compelling of interests to sustain such massive burdens on religion. Even then, both require the Government to adopt the most narrowly tailored means available to advancing that interest. The APA, moreover, requires that the Government use rational, lawful means for achieving any such goals in a transparent and accountable manner, and prohibits arbitrary means that target firmly held religious values simply because they are unpopular in certain quarters. The U.S. Government Mandate, however, cannot possibly satisfy these stringent legal standards.
25. Instead, the U.S. Government Mandate will hurt citizens in need, rob those ministered to by Plaintiffs of vital educational, service, and employment opportunities, and unfairly target Catholic organizations like Plaintiffs because of their moral views with an intolerable demand that they abandon their beliefs.
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26. 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 are uncertain as to their rights and duties in planning, negotiating, and implementing their group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries, as described below.
27. Accordingly, Plaintiffs seek an order vacating the U.S. Government Mandate and declaring that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs. Additionally, Plaintiffs seek a permanent injunction against enforcement of the U.S. Government Mandate. I. PRELIMINARY MATTERS
28. Plaintiff Bishop Donald W. Trautman is Trustee for Plaintiff The Roman Catholic Diocese of Erie, a nonprofit Pennsylvania Charitable Trust with a principal place of administration in Erie, Pennsylvania. The Diocese is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
29. Plaintiff St. Martin Center is a nonprofit corporation with its principal place of business in Erie, Pennsylvania. It is an affiliate corporation of Catholic Charities. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
30. Plaintiff Prince of Peace Center is a nonprofit corporation with its principal place of business in Farrell, Pennsylvania. It is an affiliate corporation of Catholic Charities. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
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31. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity.
32. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
33. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
34. Defendant U.S. Department of Health and Human Services (“HHS”) is an executive agency of the United States within the meaning of RFRA and the APA.
35. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
36. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
37. 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(c).
38. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
39. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. Background on the Bishop and the Diocese
40. The Diocese of Erie encompasses thirteen counties in Northwestern Pennsylvania. It is led by Bishop Trautman, who has served as the Bishop of Erie for twenty-two years. The Diocese carries out its Christ-centered mission in three mains ways: by educating children within the Diocese, by promoting spiritual growth, and through community service.
41. The Diocese operates thirty elementary schools, three middle schools, and seven secondary schools, which educate over 7,500 students. The Diocese educates students of all
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religions and offers tuition assistance for students who otherwise, would have no alternative to the public school system. This determination is based solely on financial need. Many nonCatholic students attend the Diocesan grade schools, middle schools, and secondary schools.
42. As for its role in promoting spiritual growth, the Diocese consists of 117 parishes serving a thirteen-county region, including a Catholic population of approximately 222,000 people. Geographically, it is the largest diocese in Pennsylvania.
43. Bishop Trautman publishes FAITH Magazine of the Catholic Diocese of Erie, the largest family publication in Northwestern Pennsylvania. FAITH Magazine is mailed to approximately 62,000 households in all thirteen counties of Northwestern Pennsylvania and focuses on religious issues, but also on other international, national, and local news. “The magazine is designed to touch the hearts of people both within and outside of the faith.” About Us, FAITH Magazine, available at http://www.eriercd.org/faithabout.asp.
44. In addition to providing spiritual care to its Catholic residents through its parishes and providing education to Catholic and non-Catholic students, the Diocese serves many more thousands of Northwestern Pennsylvania residents through its social service arms.
45. Many non-Catholics are served by the Diocese’s post-abortion ministry, prison ministry, family ministry, disability ministry, international Diocesan missions, various respect life organizations, and the numerous secular and religious charities that receive the Diocese’s financial support, including:
a. St. Elizabeth Center, a food pantry, thrift store, and clothing shop for lowincome individuals;
b. The Good Samaritan Center, a shelter for homeless men and provider of an emergency one-family apartment and other emergency assistance;
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c. Better Homes for Erie, a provider of affordable housing to low-income families; and
d. Catholic Charities Counseling and Adoption Services, a provider of professional counseling, adoption counseling, pregnancy counseling, and refugee resettlement services.
46. These social service programs, which receive support from the Diocese, provide aid to approximately 56,000 people per year. And again, all of these services are provided without regard to religion, race, or financial condition. The provision of these social services is a central tenet of the Catholic faith.
47. Many of the individuals being served through these charitable programs are not being adequately served by the Government and without the support of the Diocese, would be without food, shelter, and other necessary services.
48. The Diocese would not be able to provide all of these social services without the financial contributions of its donors and the work of its numerous volunteers.
49. In summary, the Diocese has well over 50 employees, but does not know exactly how many of these employees are Catholic. The Diocese operates 40 schools. These schools serve over 7,500 students, many of whom are not Catholic. The Diocese supports numerous charitable missions, which serve over 56,000 persons who are homeless, elderly, or otherwise in need of material assistance. The Diocese serves all people in need, regardless of the faith of such individuals, and therefore does not know how many of the people it serves are Catholic. It is therefore unclear whether the Diocese qualifies for an exemption from compliance with the U.S. Government Mandate offered to organizations deemed “religious employers” under the U.S. Government Mandate’s narrow exemption, discussed below.
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50. In order to determine how many of the individuals the Diocese employs and serves are Catholic, the Diocese would be required to ask the religious affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Diocese’s religious exercise.
51. Moreover, the process by which the Government proposes to determine whether an organization—such as the Diocese—qualifies for the exemption, will require the Government to engage in an intrusive inquiry into whether, in the view of HHS, (1) the Diocese’s “purpose” is the “inculcation of religious values,” (2) whether the Diocese “primarily” employs Catholics, and (3) whether it “primarily” serves Catholics. The standards are impermissibly vague and subjective. Regardless of outcome, the Diocese strongly objects to such an intrusive governmental investigation into its religious mission.
52. Finally, the Diocese operates a self-insured health plan. That is, the Diocese does not contract with a separate insurance company that provides health care coverage to its employees and the employees of its affiliated corporations. Instead, the Diocese itself functions as the insurance company underwriting the medical costs of its employees and the employees of its affiliated corporations.
53. The Diocesan health plans are administered by Third Party Administrators, which are paid a flat fee for each covered individual for administering the plans, but do not pay for any services received by covered employees.
54. The Diocesan health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan. 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.
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55. Under the Diocesan health plan, each new plan year begins annually on July 1st. B. Background on St. Martin Center, Inc.
56. Plaintiff St. Martin Center is a nonprofit, social service organization which has been providing individuals and families with resources to gain self-sufficiency for the last 50 years. Plaintiff provides the following services to the needy in the greater Erie, Pennsylvania community, regardless of religion:
a. Social services: an in-house pantry; vouchers for clothing items; assistance for rent, mortgage, and utility payments; assistance for obtaining life-sustaining prescriptions; vouchers for bus passes and gasoline; and guidance for creating a budget. Also, through St. Martin’s Bishop’s Breakfast Program, the needy in the community receive a hot breakfast every weekday.
b. Housing services: counseling for potential homebuyers; fair housing and predatory lending education; lead paint education; and foreclosure prevention counseling. Also, through the HOME Investment Partnership Program, first-time homebuyers can receive funds to bring a home into compliance with building codes.
c. An Early Learning Center, which serves as a preschool and provider of before and after school care. Childcare tuition assistance is available at the Early Learning Center.
d. Hospitality Industry Training to teach workforce kitchen skills to the underemployed, unemployed, and many resettled refugees. St. Martin
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Center provides hands-on experience to such individuals through its catering program, Catering on Parade; and e. PA WORKWEAR, a provider of men’s clothing for interviewing and entering the workforce. 57. Many of the individuals being served through the programs of St. Martin Center are not being adequately served by the Government and without the support of these programs, would be without food and other necessary services which enable them to live a self-sufficient life. 58. St. Martin Center would not be able to provide all of these social services without the financial contributions of its donors and the work of its numerous volunteers. 59. St. Martin Center has over 50 full-time employees, but does not know how many of these employees are Catholic. 60. St. Martin Center employees are insured under the Diocesan health plan. 61. In summary, St. Martin Center has over 50 employees, but does not know how many of these employees are Catholic. St. Martin Center serves all people in need, regardless of the faith of such individuals, and therefore does not know how many of the people it serves are Catholic. C. Background on Prince of Peace Center, Inc. 62. Plaintiff Prince of Peace Center is a nonprofit, social service organization which provides various social and self-sufficiency services to the needy in the greater Mercer County community. The services offered by Prince of Peace Center include: a. Family support services through the HOPE Advocacy program (Help and Opportunity for Personal Empowerment) and Project RUTH (Resources, Understanding, Training, and Homes). HOPE Advocacy is a long term
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support program (for up to 24 months) for individuals and families struggling with poverty. Project RUTH is a transitional housing program for single parents and their children, who meet the U.S. Department of Housing and Urban Development’s definition of homeless. All of the individuals served by HOPE Advocacy and Project RUTH are given the opportunity to learn basic life skills necessary for self-sufficiency and family stability through intensive case management and monthly support groups. The case managers work closely with all participants and offer educational, supportive, and advocacy services. b. Emergency Assistance programs, which provide food, clothing, furniture, appliances, and more to those in need at little to no cost. Prince of Peace Center’s Emergency Assistance programs are funded by private donations. Through such donations, Prince of Peace Center is able to offer over $50,000 yearly to help the needy pay utility bills and offer any other necessary support to ensure that family units remain intact. As part of its Emergency Assistance Program, Prince of Peace Center runs a program entitled AWESOME (Assistance With Education, Shelter, Organization, Money management, and Employment). The AWESOME program is geared towards single men and women who have children and wish to attain self-sufficiency. The AWESOME program classes cover a variety of topics, including proper nutrition, decision making, and financial planning. Anyone who attends the AWESOME program classes is eligible for an emergency stipend towards payment of a utility bill.
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c. Mission Thrift Store (“the Thrift Store”), which provides items such as clothing and furniture to the community at a low cost. The Thrift Store does not turn away anyone in need and supplies items to such individuals at no cost. The Thrift Store operates at a significant loss each year, but the mission of the store is to serve all in need, not to focus on sales or money.
d. PA WORKWEAR, a program which provides the needy with clothing, accessories, and training to prepare for job interviews. Those who successfully obtain employment are entitled to receive five additional days of work appropriate attire so that they can continue to present a professional image at their job.
e. Neighborhood Meal, a soup kitchen, which provides two meals per week to the needy. The soup kitchen serves approximately 5,700 individuals per year. The needy can come to the soup kitchen for Thanksgiving and Christmas dinner. During the summer months, a health fair is held at the soup kitchen to educate the needy about the benefits of a healthy lifestyle. Also, Prince of Peace Center sponsors Food Day, a program where the needy receive a monthly food distribution of groceries to supplement food stamps. An average of approximately 700 individuals receive food through this program each month.
f. Computer classes for adults and seniors. Students who pass the class receive a free donated and refurbished computer.
g. Various programs and charity drives for disadvantaged children in the Mercer County community are held throughout the year, including a
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Christmas toy drive, Easter egg hunt, and school supplies and school clothing drive. 63. Prince of Peace Center does not inquire into the religious beliefs of the individuals it serves, as part of its mission is to strengthen families, build community, and reduce poverty among people of all ages, faiths, races, and backgrounds. 64. The majority of the individuals served by Prince of Peace Center are below the poverty level and are not being adequately served by the Government. Without the services of Prince of Peace Center, these individuals would be without food and shelter. 65. Prince of Peace Center would not be able to provide all of these social services without the financial contributions of its donors and the work of its numerous volunteers. 66. Prince of Peace Center employees are insured under the Diocesan health plan. 67. Prince of Peace Center does not know how many of its employees are Catholic. 68. In summary, Prince of Peace Center does not know how many of its employees are Catholic and serves all people in need, regardless of the faith of such individuals. II. PLAINTIFFS’ RELIGIOUS BELIEFS 69. None of the social service programs or schools described above are available only to Catholics. To the contrary, the schools of the Diocese are open to children of every religion. The social service programs of St. Martin Center, Prince of Peace Center, and of other organizations which the Diocese supports do not ask the religion of the people they serve. Instead, all of these schools and programs—like the Catholic Church that inspires the work of all Plaintiffs—are committed to serving anyone in need, regardless of religion. 70. Plaintiffs’ commitments to teach and to serve all are part of a larger belief system that likewise proclaims Catholic teachings on the sanctity of human life and the dignity of all persons.
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71. Plaintiffs believe, in accordance with the Catechism of the Catholic Church, that the “dignity of the human person is rooted in his creation in the image and likeness of God,” Catechism of the Catholic Church ¶ 1700, and that “[h]uman life must be respected and protected absolutely from the moment of conception.” Id. ¶ 2270.
72. Likewise, Plaintiffs adhere to Catholic teachings on the nature and purpose of human sexuality. Plaintiffs believe, in accordance with the Catechism of the Catholic Church, that the sexual union of spouses “achieves the twofold end of marriage: the good of the spouses themselves and the transmission of life. These two meanings or values of marriage cannot be separated without altering the couple’s spiritual life and compromising the goods of marriage and the future of the family.” Id. ¶ 2363.
73. Consequently, Plaintiffs believe that “every action,” including artificial contraception and sterilization, “which . . . proposes, whether as an end or as a means, to render procreation impossible is intrinsically evil.” Id. ¶ 2370.
74. Plaintiffs believe that “direct abortion,” defined as “abortion willed as an end or as a means,” is “gravely contrary to the moral law.” Id. ¶¶ 2322, 2271.
75. Plaintiffs adhere to Catholic teachings which regard direct sterilization as “unacceptable.” ¶¶ 2370, 2399.
76. The Diocese promulgates its beliefs that abortion, contraception, and sterilization are contrary to the moral law through its schools and programs run out of Diocesan headquarters. To support these beliefs, the Office of Education within the Diocese has an organization devoted solely to Natural Family Planning and Chastity Education and Bishop Trautman has recognized that natural family planning is consistent with Catholic doctrine.
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77. The ability of the Diocese to impress upon its parishioners, students, and engaged couples its strong opposition—consistent with the strong opposition of the Catholic Church—to abortion, contraceptives, and sterilization would be seriously undermined if the Government succeeded in forcing the Diocese to provide its employees and the employees of its affiliated corporations with access to abortifacients, sterilization services, contraceptives, and related counseling services.
78. Plaintiffs have a duty, in accordance with Catholic social teachings, to promote the health and well-being of their employees and families.
79. To that end, Plaintiffs offer generous health insurance plans to their employees. Significantly, however, Plaintiffs have ensured that those plans do not include coverage for abortifacients, sterilization services, and related counseling services.
80. Consistent with Church teachings, Plaintiffs’ employee health plans cover drugs commonly used as contraceptives only when prescribed with the intent of treating another medical condition, not with the intent of preventing pregnancy.
81. Plaintiffs cannot, without violating their sincerely-held religious beliefs, subsidize, provide, and/or facilitate these or other devices, drugs, procedures, or services that are inconsistent with the teachings of the Catholic Church. III. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 82. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010) (collectively the “Affordable Care Act” or the “Act”). 83. The Affordable Care Act established many new requirements for “group health
plans,” broadly defined as “employee welfare benefit plans” within the meaning of the Employee
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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).
84. The Affordable Care Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for—(4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)).
85. 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.
86. Some provisions of the Affordable Care Act exempt individuals with religious objections. For example, individuals are exempt from the requirement to obtain health insurance if they are members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds or are members of a “health care sharing ministry.” 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (conscientious objectors); 5000A(d)(2)(b)(ii) (“health care sharing ministry”).
87. Not every employer is required to comply with the U.S. Government Mandate. “Grandfathered” health plans are exempt from the “preventive care” mandate. 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. Such plans cannot undergo
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substantial change after March 23, 2010 without losing grandfathered status. Id. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
88. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
89. 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).
90. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventive Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this assessment applies to employers who violate the “preventive care” provision of the Affordable Care Act).
91. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
92. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement
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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).
93. The Affordable Care Act limits the Government’s regulatory authority. The Act and an accompanying Executive Order reflect a clear congressional intent to exclude all abortion-related services from the Act and the regulations implementing it. The Act itself provides that “nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act left it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii).
94. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits an agency from using Government funds to discriminate against an institution based on providing coverage for abortions. Specifically, “[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).
95. The intent to exclude abortions was instrumental in the Affordable Care Act’s passage, as cemented by an Executive Order without which the Act would not have passed.
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Indeed, the Act’s legislative history could not show a clearer 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 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 indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. To appease these Representatives, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13,535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
96. The Act was, therefore, passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id.
B. The U.S. Government Mandate Was Promulgated Without Regard to Ordinary Rules of Procedure
97. It took the Defendants in this case less than two years to subvert this central premise of the Act. Over time, they issued interim rules and press releases—none of which followed notice-and-comment rulemaking—that required the federal funding of abortifacients, sterilization services, contraceptives, and related counseling services and commandeered religious organizations to facilitate those services as well.
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98. Within four months, on July 19, 2010, Defendants issued their initial interim final rules concerning § 300gg-13(a)(4)’s requirement that group health plans provide coverage for women’s “preventive care.” Interim Final Rules, 75 Fed. Reg. at 41,726.
99. Defendants improperly dispensed with notice-and-comment rulemaking for these rules. Even though federal law had never required coverage of abortifacients, sterilization services, contraceptives, and related counseling services, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act and that “it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice-and-comment process was completed.” Id. at 41,730.
100. The interim final rules did not resolve what services constitute “preventive care;” instead, they merely track the Affordable Care Act’s statutory language. They provide that “a group health plan . . . must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: . . . (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147.130(a)(iv)).
101. The interim final rules, however, failed to identify the women’s “preventive care” that Defendants planned to require employer group health plans to cover, nor did the interim final rules give any notice as to how Defendants would identify those services. 42 U.S.C. § 300gg-13(a)(4). Instead, Defendants noted that “[t]he Department of HHS [was] developing
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these guidelines and expects to issue them no later than August 1, 2011.” Interim Final Rules, 75 Fed. Reg. at 41,731.
102. Defendants permitted concerned entities to provide written comments about the interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id. at 41,730.
103. In response, several groups engaged in a lobbying effort to persuade Defendants to include various contraceptives and abortion-inducing drugs in the “preventive care” requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned Parenthood Supports Initial White House Regulations on Preventive Care (July 14, 2010), available at http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm.
104. Other commentators noted that “preventive care” could not reasonably be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be “prevented,” and that a contrary view would intrude on the firmly held beliefs of many religiously affiliated organizations by requiring them to pay for services that they viewed as intrinsically immoral. See, e.g., Comments of U.S. Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
105. On August 1, 2011, HHS issued the “preventive care” services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost (Aug. 1, 2011), available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than
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enactments in the Code of Federal Regulations or statements in the Federal Register. The press release made clear that the guidelines were developed by a non-governmental “independent” organization, the Institute of Medicine (“IOM”). See id.
106. In developing the guidelines, IOM invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of abortion, contraception, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women app. B at 217-21 (2011), http://www.nap.edu/openbook.php?record_id=13181&page=R1.
107. The IOM’s own report, in turn, included a dissent that suggested that the IOM’s recommendations were made on an unduly short time frame dictated by political considerations, through a process that was largely subject to the preferences of the committee’s composition, and without the appropriate transparency for all concerned persons.
108. In stark contrast with the central compromise necessary for the Affordable Care Act’s passage and President Obama’s promise to protect religious liberty, HHS’s guidelines required insurers and group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See Health Res. Servs. Admin., Women’s Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/.
109. Contraceptives approved by the FDA that qualify under these guidelines cause abortions. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which destroys the embryo by preventing it
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from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or Ella), which likewise can induce abortions of living embryos.
110. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had previously enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011).
111. Defendants issued the amendments again without notice-and-comment rulemaking on the same grounds (namely, that it would be “impracticable and contrary to the public interest to delay” putting the rules into effect) that they had provided for bypassing the APA with the original rules. See id. at 46,624.
112. When announcing the amended regulations, Defendants ignored the view that “preventive care” should exclude abortifacients, sterilization services, and contraceptives that do not prevent disease. Instead, they noted only that “commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.” Id. at 46,623.
113. Defendants sought “to provide for a religious accommodation that respect[ed]” only “the unique relationship between a house of worship and its employees in ministerial positions.” Id.
114. Specifically, the regulatory “religious employer” exemption ignored definitions of “religious employer” already existing in federal law and, instead covered only those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals
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of the same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).
115. The regulation delegates to a branch within Defendant HHS the job of issuing
exemptions on an ad hoc and subjective basis by allowing that branch to determine which
organizations meet this definition of “religious employer.”
116. The religious employer exemption also mandates an unconstitutionally invasive
inquiry into an organization’s religious purpose, beliefs, and practices.
117. Similarly, the religious employer exemption further mandates an impermissibly
invasive inquiry into the religious beliefs of the individuals an organization employs and serves.
118. The religious employer exemption also uses impermissibly vague, undefined
terms that extend that Agency’s already broad discretion and fail to provide organizations with
notice of their duties and obligations. There is no definition for the vague terms “inculcation of
religious values,” “purpose of the organization,” “primarily,” and “religious tenets.” Similarly,
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there is no indication of whether an entity with multiple purposes can determine whether it qualifies and how much overlap there must be for religious tenets to be “share[d].”
119. When issuing this interim final rule, Defendants did not explain why they issued such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other “longstanding Federal laws to protect conscience” that President Obama’s executive order previously had promised to respect. See Exec. Order No. 13,535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
120. ERISA, for example, has long excluded “church plans” from its requirements, more broadly defined to cover civil law corporations, including entities like St. Martin Center and Prince of Peace Center, that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003.
121. Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers to include services in their health plans that they viewed as immoral, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
122. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations expressed the same concerns that they had before, noting that abortifacients, sterilization services, contraceptives, and related counseling services could not be viewed as “preventive care.” They also explained that the religious exemption was “narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of U.S. Conference of Catholic Bishops at 1-2 (Aug. 31,
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2011), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/commentsto-hhs-on-preventive-services-2011-08.pdf.
123. The Diocese published an article in its October 17, 2011 Life Issues Forum entitled “Standing Together for Conscience Rights,” which asked parishioners to stand with the Bishops in support of religious freedom.
124. Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. NARAL Pro-Choice America is a pro-abortion organization that opposes many Catholic teachings. She told the pro-abortion audience that “we are in a war,” apparently with opponents of either federal funding of abortifacients, sterilization services, contraceptives, and related counseling services or federal mandates requiring coverage of abortifacients, sterilization services, contraceptives, and related counseling services in health care plans.
125. In January 2012, allegedly “[a]fter evaluating [the new] comments” to the interim final rules, Defendants gave their response. They did not request further discussion or attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short, Friday-afternoon press release. See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
126. The press release announced, with little analysis or reasoning, that HHS opted to keep the religious employer exemption unchanged, but indicated that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” Id.
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127. Taken together, these various rules and press releases amount to a mandate that requires most religiously affiliated organizations to subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services through the health plans that they offer employees. As noted by Cardinal Timothy Dolan, the release effectively gave objecting religious institutions “a year to figure out how to violate [their] consciences.”
C. The White House Has Refused to Expand the Exemption 128. On February 10, 2012, given the continued public outcry to the U.S. Government
Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate announcing that it had unilaterally come up with a “solution” to their religious objections.
129. According to the White House, Defendants will issue regulations at some unspecified date prior to August 1, 2013 to exempt religious organizations that have moral objections to subsidizing, providing, and/or facilitating coverage for abortifacients, sterilization services, contraceptives, and related counseling services from directly paying for those services under the terms of their health plans.
130. When such religious organizations provide health plans to their employees, the “insurance company will be required to directly offer . . . contraceptive care free of charge.” White House, Fact Sheet: Women’s Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheetwomen-s-preventive-services-and-religious-institutions.
131. Despite continued objections that this “accommodation” did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: “No, this is our plan.” David Eldridge &
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Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, available at http://www.washingtontimes.com/news/2012/feb/12/whitehouse-birth-control-compromise-will-stand/print/.
132. Defendants have since finalized, “without change,” the interim rules containing the religious employer exemption, 77 Fed. Reg. at 8,729 (Feb. 15, 2012), and issued guidelines regarding the previously announced “temporary enforcement safe harbor” for “non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8,725; see Ctr. for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf.
133. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012).
134. The ANPRM launches a 90-day comment period, to be followed by several other steps in the rulemaking process; it offers no clear end date other than repeating the assurance that an accommodation will be in place by August 1, 2013. See id.
135. The recurring theme is that the Government has not found a solution to the problems it created when it promulgated its U.S. Government Mandate.
136. In fact, the ANPRM contains little more than a recitation of proposals, hypotheticals, and “possible approaches.” It offers almost no analysis of the relative merits of the various proposals. It is, in essence, an exercise in public brainstorming.
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137. This “regulate first, think later” approach is not an acceptable method of rulemaking when the Government is regulating in a way that may require monumental changes of the regulated entities.
138. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form of an ANPRM does not, in fact, change the law.
139. Nor does the ANPRM alter the scope of the narrow religious employer exemption.
140. The ANPRM does nothing of substance to avoid involving Plaintiffs in the subsidy, provision, and/or facilitation of coverage for abortifacients, sterilization services, contraceptives, and related counseling services or otherwise eliminate the constitutional infirmity of the U.S. Government Mandate.
141. Health plans do not take shape overnight. Many analyses, negotiations, and decisions must occur each year before Plaintiffs can implement health plans for their employees.
142. For example, an employer that is self-insured—like the Diocese— must work with actuaries to evaluate its funding reserves and then must negotiate with its third-party administrator (“TPA”).
143. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty swirling around the U.S. Government Mandate and the ANPRM make the already lengthy process of preparing a health benefits package even more complex.
144. The U.S. Government Mandate, however, may require Plaintiffs to make significant, and revolutionary changes, to their employee health coverage. Plaintiffs, moreover,
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may need to restructure their programs and health plans to fit within the U.S. Government Mandate’s requirements. Such changes will require substantially more lead time.
145. Plaintiffs are already being affected by the U.S. Government Mandate in that they have expended resources learning about the U.S. Government Mandate, including the religious employer exemption and safe harbor, and how these provisions affect Plaintiffs.
146. Plaintiffs are currently, and for the foreseeable future will be, negotiating new and existing employee contracts that will be in force when the U.S. Government Mandate begins applying to Plaintiffs’ health insurance plans. The fact that Plaintiffs are unsure of the status of their health insurance plans may impact employee recruitment efforts, which may in turn harm Plaintiffs’ educational and social service functions.
147. Additionally, Plaintiffs’ funding will likely be significantly impacted by the U.S. Government Mandate in that donors expect that Catholic organizations will act in accordance with Catholic doctrine in all manners.
148. Also, individuals who volunteer their time in support of the social service programs run by Plaintiffs may stop offering their volunteer services since volunteers expect that Catholic organizations will act in accordance with Catholic doctrine in all manners. As Plaintiffs rely on volunteers to help support their charitable programs, this could significantly impact the services they are able to offer to the community.
149. The U.S. Government Mandate thus imposes a present and ongoing hardship on Plaintiffs.
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IV. THE U.S. GOVERNMENT MANDATE, THE PROPOSED ACCOMMODATION, AND THE RELIGIOUS EMPLOYER EXEMPTION VIOLATE PLAINTIFFS’ RELIGIOUS BELIEFS
A. The U.S. Government Mandate Puts Plaintiffs in the Unconscionable Position of Having to Choose Between Complying with the Law or Abiding by their Religious Beliefs
150. Since the founding of this country, one of the basic freedoms central to our society and legal system is that individuals and institutions are entitled to freedom of conscience and religious practice. See, e.g., James Madison, Memorial and Remonstrance Against Religious Assessments, ¶ 1 (1785).
151. The U.S. Government Mandate puts Plaintiffs—all Catholic employers—in an intolerable and unconscionable position. It forces Plaintiffs to choose between their religious beliefs (that abortion, sterilization, and contraception are immoral and strictly forbidden), their mission (educating, servicing, and employing individuals of all faith traditions to enrich and enlighten), and obeying the law.
152. The U.S. Government Mandate directly conflicts with Plaintiffs’ sincere belief that strictly forbids, as intrinsically immoral, the subsidy, provision, and/or facilitation of coverage for abortifacients, sterilization services, contraceptives, and related counseling services that the U.S. Government Mandate forces upon them. Plaintiffs cannot, consistent with their Catholic identity, subsidize, provide, and/or facilitate such practices.
153. In order to fall within the exemption, Plaintiffs would have to primarily serve Catholics, which would violate their religious beliefs. For Catholics, love of God is demonstrated through service to others; the two are so closely related and dependent upon each other that they cannot be separated. Catholic doctrine recognizes that, “[l]iving faith ‘work[s] through charity.’” Catechism of the Catholic Church ¶ 1814. Plaintiffs cannot be forced to give
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up their devotion to all mankind without violating their religious beliefs and compromising their religious purpose.
154. The U.S. Government Mandate also seeks to compel Plaintiffs to fund “patient education and counseling for all women with reproductive capacity.” It therefore compels Plaintiffs to provide, subsidize, and/or facilitate speech that is contrary to their firmly held religious beliefs.
155. Although the Government exempts some religious institutions from the requirement of subsidizing, providing, and/or facilitating the objectionable services, it has crafted such a narrow exception that thousands of sincere religious institutions and countless religious individuals are being forced to make this unconscionable “choice.”
156. Indeed, the Government does not provide Plaintiffs the option of attempting to avoid the U.S. Government Mandate by exiting the health care market. Eliminating its employee group health plan would expose each Plaintiff to substantial fines.
157. It is no “choice” to leave those employees scrambling for health insurance while subjecting Plaintiffs to significant fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiffs to adhere to their religious beliefs. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely-held religious beliefs by requiring them to subsidize, provide, and/or facilitate access to abortifacients, sterilization services, contraceptives, and related counseling services.
158. 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
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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.
159. Furthermore, the U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs.
160. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws.
161. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
162. The U.S. Government Mandate compels Plaintiffs to consider restructuring their admissions, employment, and service programs to discriminate on the basis of religion in an overt and potentially illegal fashion.
163. The Diocese would be forced to inquire both into the nature and sincerity of the faith of prospective students, turning away Protestants, Muslims, Jews, atheists, and those that the Government may not find to be sufficiently Catholic—or at the very least, imposing strict quotas that ensure that they do not “primarily” serve such students.
164. Financial aid programs designed to reach poor and underprivileged students regardless of religion would have to be similarly redesigned to exclude non-Catholics.
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165. Meanwhile, Plaintiffs would potentially subject themselves to a host of employment discrimination suits if they restricted employment to coreligionists.
166. Moreover, any attempts by Plaintiffs to qualify for the narrow religious exemption by restricting their charitable and educational mission to Catholics would have devastating effects on the communities encompassed within the Diocese’s borders.
167. Several of the public school systems located within the Diocese’s boundaries are not strong, and few non-Catholic private schools are available. Forcing the non-Catholic students attending the Diocese’s grade schools and high schools to leave the Catholic school system would deprive these students and their parents of a safe, positive, structured, and academically rigorous education in an area where there are very few comparable alternatives.
168. Many non-Catholics are also served by the Diocese’s post-abortion ministry and the numerous secular and religious charities that receive the Diocese’s financial support, including: Plaintiff St. Martin Center, Plaintiff Prince of Peace Center, a prison ministry, a homeless shelter and low-income housing program, soup kitchens, food pantries, an HIV/AIDS support group and four emergency assistance centers, counseling and adoption services at eleven sites, and refugee resettlement.
169. The vacuum left in Northwestern Pennsylvania by Plaintiffs’ inability to serve non-Catholics would be impossible to fill.
170. In order to restrict the provision of services to Catholics, Plaintiffs would have to inquire about the religious beliefs and membership of any person who approached them or the programs which Plaintiffs support. Verifying the religious status of every poor, hungry, disabled, or otherwise underserved person asking for assistance from Plaintiffs would clearly present a logistical problem of significant proportions—and would seriously hamstring
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Plaintiffs’ ability to serve even those persons who were ultimately able to prove their membership in the Catholic Church.
171. Despite the efforts of the Government to divide religious institutions by targeting specific religious beliefs, Christian leaders in Pennsylvania, including all of the Catholic Bishops of Pennsylvania as members of the Pennsylvania Catholic Conference, have jointly recognized that the U.S. Government Mandate infringes on religious liberty and threatens all Christian institutions, no matter what the beliefs of the religious institution are as to abortion, sterilization, and contraception. In a joint letter from the Pennsylvania Catholic Conference dated March 7, 2012 and signed by the Roman Catholic Archbishop for Philadelphia, the Roman Catholic Bishops for Erie, Pittsburgh, Greensburg, Harrisburg, Allentown, Altoona-Johnstown, and Scranton, as well as the Metropolitan Archbishop for Ukrainians in the USA and the Administrator of the Byzantine Catholic Archdiocese of Pittsburgh, the Christian leaders stated:
Some falsely suggest that the HHS mandate is about contraception. This is primarily about religious liberty and our First Amendment rights to the free exercise of our religion. Make no mistake about it – this government mandate is a step which will inevitably lead to other mandates that continue to strike at the heart of our Faith and the constitutional liberties we have been guaranteed. B. The U.S. Government Mandate’s Religious Employer Exemption Aggravates the Constitutional and Statutory Violations 172. The religious employer exemption destroys religious freedom by exempting only institutions that primarily employ and serve “persons who share the religious tenets of the organization.” 45 C.F.R. § 147.130(a)(iv)(B)(2)-(3). This is inconsistent with the definition of religion under the Constitution and RFRA, and directly contradicts the Plaintiffs’ sincerely-held religious beliefs of serving all people, regardless of whether or not they share the same faith. 173. Both the Constitution and RFRA protect religious institutions, whether or not their purpose is the “inculcation of religious values,” and whether or not they “primarily” serve
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and employ co-religionists. However, only institutions with such a narrow purpose qualify for the religious exemption under the U.S. Government Mandate. 45 C.F.R. § 147.130(a)(iv)(B)(1). The Constitution and RFRA cannot abide such a feigned attempt at preserving religious rights.
174. The Government also has not provided any process by which the Diocese can determine whether it fits within the exemption.
175. It is unclear whether the Diocese qualifies for the exemption. 176. It is unclear how the Government defines or will interpret religious “purpose.” 177. It is unclear how the Government defines or will interpret vague terms, such as “primarily,” “share,” and “religious tenets.” 178. It is unclear how the Government will ascertain the “religious tenets” of an entity, those it employs, and those it serves. 179. It is unclear how much overlap the Government will require for religious tenets to be “share[d].” 180. Though the Government’s position is unclear, it appears that if an entity qualifies as a “religious employer” for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity’s group health plan would also receive the benefit of the exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. at 16,502 (Mar. 21, 2012). 181. If the Diocese qualifies as a “religious employer” under the exemption to the U.S. Government Mandate, St. Martin Center and Prince of Peace Center thus also appear to receive the benefit of the exemption.
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C. The U.S. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government With Religion, Interferes With Religious Institutions’ Religious Doctrine, and Discriminates Against and Among Religions
182. The U.S. Government Mandate’s exemption further entangles the Government in defining the religious tenets of each organization and its employees and beneficiaries. The Government would have to decide Plaintiffs’ “religious tenets,” determine whether “the purpose” of the organization is to “inculcate” those tenets, and then conduct an inquiry into the practices and beliefs of the individuals that Plaintiffs ultimately employ and educate.
183. Indeed, President Obama all but conceded that the current state of the law fails to protect Plaintiffs’ exercise of religion when, on February 10, 2012, he announced that his Administration intended to implement new regulations that “accommodate[] religious liberty.” White House, Fact Sheet. But promises to change the law do not actually do so.
184. Nor would the few opaque statements publicly made about the proposed “accommodation” relieve Plaintiffs from the unconscionable position in which the U.S. Government Mandate currently puts them.
185. Plaintiffs object to being forced to provide plans which subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services they view as immoral even if Plaintiffs do not have to directly pay for such services.
186. Basing the definition of religion on the Government’s assessment of the “purity” of an institution’s religious purpose and limiting that purpose to inculcation, at the expense of other sincerely-held religious purposes, the U.S. Government Mandate usurps religious autonomy, injecting the Government into deciding what is and is not a valid religious purpose. The Government cannot make such determinations.
187. Under the U.S. Government Mandate’s logic, the Diocese’s programs in math, science, and the arts could be subject to cancellation if they were deemed by a government
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administrator to be insufficiently “religious” or to lack sufficient religious “purpose.” Regardless of outcome, this inquiry is unconstitutional, and the Diocese strongly objects to such an intrusive governmental investigation into its religious mission.
188. The U.S. Government Mandate’s narrow, ungrounded exemption discriminates against Catholic religious institutions as well as among religions.
189. The U.S. Government Mandate targets Plaintiffs precisely because of their commitment to educate, serve, and employ all without regard to religion.
190. As a result of such discrimination, the U.S. Government Mandate is subject to the strictest scrutiny under the Constitution.
D. The U.S. Government Mandate is Not a Neutral Law of General Applicability 191. The U.S. Government Mandate is not a neutral law of general applicability. 192. It offers multiple exemptions from its requirement that employer-based health
plans subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements until the plans lose that status.
193. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortion and contraception, and thus targets certain religious organizations and certain religions for disfavored treatment.
194. The Government has crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by religious organizations that have, as their “purpose,” the “inculcation of religious values”; that “primarily” serve individuals that share their “religious tenets”; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B)(1).
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195. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of all faiths, provide vital social services to individuals of all faiths, and employ individuals of all faiths. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of all faiths.
196. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose Catholic teachings and beliefs regarding marriage and family.
197. For example, Defendant Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortion and contraception.
198. On October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL ProChoice America. 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.”
199. Consequently, on information and belief, 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.
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V. CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA
200. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 201. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb. 202. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 203. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 204. The U.S. Government Mandate requires Plaintiffs to subsidize, provide, and/or facilitate practices and speech that are contrary to their religious beliefs. 205. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 206. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 207. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate. 208. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
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209. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
210. Plaintiffs have no adequate remedy at law. 211. The U.S. Government Mandate and its impending enforcement impose 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 212. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 213. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 214. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 215. The U.S. Government Mandate requires Plaintiffs to subsidize, provide, and/or facilitate practices and speech that are contrary to their religious beliefs. 216. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 217. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 218. The U.S. Government Mandate is not a neutral law of general applicability because it is riddled with exemptions. It offers multiple exemptions from its requirement that employer-based health plans subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services.
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219. The U.S. Government Mandate is not a neutral law of general applicability because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendant enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs’ exercise of religion.
220. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
221. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
222. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
223. 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.
224. Plaintiffs have no adequate remedy at law. 225. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 226. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 227. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government.
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228. This prohibition on excessive entanglement protects organizations as well as individuals.
229. In order to qualify for the exemption to the U.S. Government Mandate for “religious employers,” entities must submit to an invasive government investigation into an entity’s religious beliefs, including whether the entity’s “purpose” is the “inculcation of religious values” and whether the entity “primarily employs” and “primarily serves” individuals who share the entity’s religious tenets.
230. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
231. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
232. The U.S. Government Mandate is therefore unconstitutional and invalid. 233. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 234. Plaintiffs have no adequate remedy at law. 235. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and
Establishment Clauses of the First Amendment 236. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 237. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference.
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238. This mandate of equal treatment protects organizations as well as individuals. 239. The U.S. Government Mandate’s narrow exemption for “religious employers” but not others discriminates on the basis of religious views or religious status. 240. The U.S. Government Mandate’s definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities’ religious beliefs or practices. 241. The U.S. Government Mandate’s definition of religious employer furthers no compelling governmental interest. 242. The U.S. Government Mandate’s definition of religious employer is not narrowly tailored to further a compelling governmental interest. 243. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 244. Plaintiffs have no adequate remedy at law. 245. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Interference in Matters of Internal Church Governance in Violation of the Free Exercise and
Establishment Clauses of the First Amendment 246. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 247. The Free Exercise Clause and the Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church governance 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.
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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 subsidizing, providing, and/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 subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services. 255. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to subsidize, provide, and/or facilitate practices that directly conflict with Catholic beliefs. 256. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to subsidize, provide, and/or facilitate practices that directly conflict with their religious beliefs. 257. Because the U.S. Government Mandate interferes with the internal decision making of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment.
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258. Plaintiffs have no adequate remedy at law. 259. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 260. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 261. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 262. The First Amendment protects organizations as well as individuals against compelled speech. 263. Expenditures are a form of speech protected by the First Amendment. 264. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 265. Plaintiffs consistently hold and publicly proclaim that abortion, sterilization, and contraception violate fundamental tenets of their Catholic religion. 266. The U.S. Government Mandate would compel Plaintiffs to provide or sponsor health care plans to their employees that subsidize, provide, and/or facilitate coverage for practices that violate their religious beliefs. 267. The U.S. Government Mandate would compel Plaintiffs to subsidize, provide, and/or facilitate coverage for education and counseling services regarding these practices. 268. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize and/or facilitate the activity and speech of private entities that are contrary to their religious beliefs.
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269. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
270. The U.S. Government Mandate furthers no compelling governmental interest. 271. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 272. Plaintiffs have no adequate remedy at law. 273. The U.S. Government Mandate imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-And-Comment Rulemaking and Improper
Delegation in Violation of the APA 274. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 275. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide. 276. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 277. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. 278. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the IOM.
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279. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
280. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
281. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
282. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim final rules and the final rule incorporating the guidelines.
283. Defendants’ stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute “good cause.” Providing public notice and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
284. Defendants have since undertaken a prolonged notice-and-comment process to promulgate amended regulations, which undermines their claim that good cause warranted abandoning notice-and-comment for the current regulations.
285. By enacting the “preventive care” guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
286. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
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287. Plaintiffs have no adequate remedy at law. 288. The enactment of the U.S. Government Mandate without observance of a procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Arbitrary and Capricious Action in Violation of the APA 289. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 290. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 291. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 292. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 293. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer. 294. Defendants failed to consider the suggestion of many commentators that abortifacients, sterilization services, contraceptives, and related counseling services could not be viewed as “preventive care.” 295. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened. 296. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions it made.
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297. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
298. Defendants’ promulgation of the U.S. Government Mandate violates the APA. 299. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 300. Plaintiffs have no adequate remedy at law. 301. The U.S. Government Mandate imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IX Acting Illegally In Violation of the APA 302. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 303. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 304. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA. 305. 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). 306. The Affordable Care Act states that “nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion]
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services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). It adds that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]” Id. § 18023(b)(1)(A)(ii).
307. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision and/or facilitation of health plans that include coverage for abortifacients, sterilization services, contraceptives, and related counseling services should be required to provide such plans.
308. The U.S. Government Mandate requires employer based-health plans to subsidize, provide, and/or facilitate coverage for abortifacients, sterilization services, contraceptives, and related counseling services. 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.
309. The U.S. Government Mandate violates RFRA. 310. The U.S. Government Mandate violates the First Amendment. 311. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 312. Plaintiffs have no adequate or available remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 313. Plaintiffs have no adequate remedy at law. 314. The enactment of the U.S. Government Mandate that is not in accordance with law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
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Case 1:12-cv-00123-SPB Document 1 Filed 05/21/12 Page 55 of 56 VI. RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an order vacating the U.S. Government Mandate; 5. Enter an injunction prohibiting Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 6. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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VII. DEMAND FOR JURY TRIAL COMES NOW Plaintiffs, by their counsel, and hereby demands a trial by jury as to all
issues so triable. Respectfully submitted, this 21st day of May, 2012.

By: /s/ Paul M. Pohl

_

Paul M. Pohl (PA ID No. 21625) Laura E. Ellsworth (PA ID No. 39555) John D. Goetz (PA ID No. 47759) Leon F. DeJulius, Jr. (PA ID No. 90383) 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 Donald W. Trautman, The Roman Catholic Diocese of Erie, St. Martin Center, Inc., and Prince of Peace Center, Inc.

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

MOST REVEREND LAWRENCE

)

T. PERSICO, BISHOP OF THE

)

ROMAN CATHOLIC DIOCESE

)

OF ERIE, as Trustee for the

)

Roman Catholic Diocese of Erie,

)

A Charitable Trust, et al.

)

)

Plaintiff,

)

Case No. 1:12-cv-123-SJM

)

v.

)

)

KATHLEEN SEBELIUS, in her

)

official capacity as Secretary of the

)

U.S. Department of Health and

)

Human Services, et al.,

)

)

Defendants.

)

MEMORANDUM OPINION McLAUGHLIN, SEAN J., District J.,
Following the enactment of the Affordable Care Act (or ―ACA‖) in March of 2010, group health plans and health insurance issuers not otherwise grandfathered under the Act are required to provide coverage for certain preventive health services – including FDA approved ―cnotraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity‖ -- without cost sharing. Plaintiffs in this lawsuit -- the Roman Catholic Diocese of Erie (the ―Diocese‖), the Most Reverend Lawrence T. Persico (as Bishop and Trustee of the Diocese), the St. Martin Center, Inc., and the Prince of Peace Center, Inc. – have sought to invalidate and enjoin this regulation (hereinafter referred to as the ―Mandate‖) on the grounds that it violates the Plaintiffs‘ rights under the First Amendment, the Religious Freedom and Restoration
1

Act, and the Administrative Procedures Act. Named as Defendants are the Secretaries of the U.S. Departments of Health and Human Services, Labor, and Treasury as well as the Departments themselves. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
Presently pending before the Court is the Defendants‘ motion to dismiss this action for lack of standing and/or ripeness. Plaintiffs have filed a memorandum in opposition to this motion, which is supported by various exhibits.1 The matter has been fully briefed and argued and is ripe for disposition.
I. STANDARD OF REVIEW Defendants‘ motion to dismiss for lack of jurisdiction, filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, concerns the Court‘s ―evry power to hear the case.‖ Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.2006) (citation omitted). Our Court of Appeals has explained that ―there are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact. When considering a facial attack, ‗the Court must consider the allegations of the complaint as true,‘ and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion.‖ Id., at 302 n. 3 (citation omitted). A factual attack, on the other hand, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction ... there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will
1 In addition, certain interested parties have filed briefs as amicus curiae in this matter.
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not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.
Id. at 302 n.3 (citation omitted) (ellipsis in the original).
Here, the parties are in agreement that the Defendants‘ jurisdictional challenge
should be treated as a factual challenge, albeit one in which Plaintiffs‘ factual averments
stand largely unrebutted. Both sides further agree that Plaintiffs bear the burden of
establishing this Court‘s jurisdiction and, therefore, standing and ripeness. We proceed
accordingly.
II. LEGAL BACKGROUND
The provision being challenged in this lawsuit is, as one court has stated, ―teh
result of a complex history of Congressional legislation and agency rulemaking involving
the Departments of Labor (‗DoL‘), the Department of the Treasury (‗DoT‘), and the
Department of Health and Human Services (‗HHS‘) (collectively, the ‗Departments‘).‖
The Roman Catholic Archdiocese of New York v. Sebelius, --- F. Supp. 2d ---, 2012, WL
6042864 at *1 (E.D.N.Y. Dec. 4, 2012). Because the U.S. District Court for the Eastern
District of New York has aptly summarized the relevant legal history of the so-called
―mandate provision‖ as it pertains to the issues in this case, we quote liberally from the
Court‘s decision in Roman Catholic Archdiocese of New York v. Sebelius:
In March 2010, Congress enacted the ACA as well as the Health Care and Education Reconciliation Act. These acts established a number of requirements relating to ―group health plans,‖ a term which encompasses employer plans that provide health care coverage to employees, regardless of whether the plans are insured or self-insured. See 42 U.S.C. § 300gg–91(a)(1); Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,727 (July 19, 2010) (―Interim Final Rules‖). As is relevant here, the ACA requires that group health plans provide coverage for a number of
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preventative medical services at no charge to the patient. § 300gg–13. Specially, the ACA provides that a group health plan must ―at a minimum provide coverage for and shall not impose any cost sharing requirements for[,]‖ among other things, women's ―preventative care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration[.]‖ § 300gg–13(a)(4). FN 2
FN 2. The Health Resources and Services Administration (―HRSA‖) is an agency within HHS.
The ACA's preventative services coverage requirement does not, however, apply to group health plans that are grandfathered. See 42 U.S.C. § 18011(a)(2). A group health plan is grandfathered when at least one person was enrolled in the plan on March 23, 2010 and the plan has continually covered at least one individual since that date. See 26 C.F.R. § 54.9815–1251T(a)(1)(i)(DoT); 29 C.F.R. § 2590.715–1251(a)(1)(i)(DoL); 45 C.F.R. § 147.140(a)(1)(i)(HHS). A plan may lose its grandfathered status, however, if, when compared to the terms of the plan as of March 23, 2010, it eliminates benefits, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly decreases an employer's contribution rate, or imposes or lowers an annual limit on the dollar value of benefits. See 26 C.F.R. § 54.9815–1251T(g)(1) (DoT); 29 C.F.R. § 2590.715–1251(g)(1)(DoL); 45 C.F.R. §147.140(g)(1) (HHS).
The Departments began issuing regulations implementing the ACA in phases. On July 19, 2010, they announced that HHS was developing the HRSA guidelines and expected to issue them by August 1, 2011. See Interim Final Rules, 75 Fed. Reg. at 41,728. Since there were no existing HRSA guidelines concerning preventative care and screenings for women at the time of the Interim Final Rules, HHS commissioned the Institute of Medicine (―IOM‖), a Congressionally-funded body, with ―review[ing] what preventative services are necessary for women's health and well-being‖ and recommending comprehensive guidelines, as called for by the ACA. On July 19, 2011, IOM published a report recommending the inclusion of certain preventative medical services in HRSA's guidelines. Among other things, IOM recommended that group health plans be required to cover ―the full range of Food and Drug Administration [―FDA‖]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.‖ FDA-approved contraceptive methods encompass oral conceptive pills, diaphragms, intrauterine devices, and emergency contraceptives, which, according to plaintiffs, can cause abortions.
HRSA adopted IOM's recommendations on August 1, 2011. Two days later, the Interim Final Rules were amended to ―provide HRSA additional discretion to exempt certain religious employers from the [HRSA] Guidelines where contraceptive services are concerned.‖ 76 Fed. Reg. 46,263 (Aug. 3, 2011). See also 45 C.F.R. § 147.130(a)(1)(iv)(A). In order to qualify for the religious employer exemption, an organization must meet all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
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(2) The organization primarily employs persons who share the religious ten[e]ts of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. FN3
FN 3. These sections of the Internal Revenue Code apply to ―churches, their integrated auxiliaries, and conventions or associations of churches,‖ as well as ―the exclusively religious activities of any religious order.‖ 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii).
45 C.F.R. § 147.130(a)(1)(iv)(B)(HHS). See also 29 C.F.R. § 2590.715– 2713(a)(1)(iv)(DoL). HRSA exercised its discretion under the amended Interim Final Rules and exempted the religious employers who satisfy these criteria from the requirement of covering contraceptive services. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012).
The Departments received over 200,000 responses to their request for comments on the amended Interim Final Rules. Many of the comments were submitted by religiously-affiliated institutions and asserted that the religious employer exemption was too narrow and that the limited scope of the exemption raised religious liberty concerns. Id. at 8,727. On February 15, 2012, the Departments finalized the amended Interim Final Rules without making any changes to the criteria used to determine whether an organization qualified for the religious employer exemption. Id. These finalized amended rules are the operative regulations at issue in this suit and, together with the HRSA guidelines, constitute the Coverage Mandate. See 29 C.F.R. § 2590.715–2713(a)(1)(iv)(DoL); 45 C.F.R. § 147.130(a)(1)(iv) (HHS).
At the same time that they finalized the Interim Final Rules, however, the Departments announced a ―temporary enforcement safe harbor‖ period during which they planned ―to develop and propose changes to these final regulations that would meet two goals — providing contraceptive coverage without cost-sharing to individuals who want it and accommodating nonexempted, non-profit organizations' religious objections to covering contraceptive services [.]‖ 77 Fed. Reg. at 8,727. Without the safe harbor, non-grandfathered plans would be required to comply with the Coverage Mandate for plan years beginning on or after August 1, 2012. The safe harbor extended this date, by a year, to plan years beginning on or after August 1, 2013, during which time the Departments agreed not to take any enforcement action against an employer or group health plan that complies with the conditions of the safe harbor. See HHS, Guidance on Temporary Enforcement Safe Harbor, at 3 (Aug. 15, 2012), available at http://cciio.cms .gov/resources/files/prev–services– guidance–08152012.pdf (last visited Dec. 3, 2012). In order to comply with the
5

terms of the safe harbor, the organization must (1) be organized and operate as a non-profit entity, (2) have ―consistently not provided all or the same subset of contraceptive coverage otherwise required at any point‖ from February 10, 2012 onward because of the organization's religious beliefs, (3) provide notice to participants that some or all contraceptive services will not be covered for the first plan year beginning on or after August 1, 2012, and (4) provide a certification that it satisfies these criteria.
Consistent with their announced plan ―to develop and propose changes‖ to the Interim Final Rules, on March 21, 2012, the Departments filed an advance notice of proposed rulemaking (―ANPRM‖) in the Federal Register concerning possible means of accommodating religious organizations' objections to the Coverage Mandate. See Certain Preventative Services under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). Specifically, the ANPRM ―presents questions and ideas‖ and provides an ―opportunity for any interested stakeholders to provide advice and input into the policy development relating to the accommodation to be made with respect to non-exempted, non-profit religious organizations with religious objections to contraceptive coverage.‖ Id. at 16,503. One possible accommodation that the Departments ―intend to propose‖ is to require health insurance issuers to provide health insurance coverage that excludes contraceptive services to objecting religious organizations while, at the same time, offering contraceptive coverage directly to plan participants without charging either the participants or the organization. Id. at 16,505.
Roman Catholic Diocese of New York v. Sebelius, 2012 WL 6042864 at *1-3.
As the foregoing discussion explains, the Departments, in their March 21, 2012
ANPRM, lay out a possible accommodation whereby health insurance companies would
be required to offer group health insurance coverage, minus contraceptive coverage, to
religious organizations while simultaneously providing contraceptive coverage directly to
plan participants and beneficiaries. See Certain Preventive Services Under the
Affordable Care Act, 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012). Under this proposed
accommodation, the health insurance company would not be permitted to impose any
cost-sharing on the part of the plan participants and beneficiaries and would be further
precluded from imposing any premium charge to the religious organization relative to
this separate contraceptive coverage. Id. For religious organizations like the Plaintiffs
which are self-insured, the ANPRM states Defendants‘ intent to propose ―taht a third-
6

party administrator of the group health plan or some other independent entity assume this responsibility.‖ Id. According to the ANPRM, the Defendants ―suggest multiple options for how contraceptive coverage in this circumstance could be arranged and financed in recognition of the variation in how such self-insured plans are structured and different religious organizations‘ perspectives on what constitutes objectionable cooperation with the provision of contraceptive coverage.‖ Id.
III. FACTUAL AND PROCEDURAL BACKGROUND2
A. The Parties 1. Plaintiffs Persico and the Diocese Plaintiff, the Most Reverend Lawrence T. Persico, is Bishop and Trustee of
Plaintiff the Roman Catholic Diocese of Erie (the ―Diocese‖). (Complaint ¶ 2.)3 The Diocese is a nonprofit Pennsylvania Charitable Trust with a principal place of administration in Erie, Pennsylvania. (Id. at ¶ 28.) It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. (Id.) The Diocese consists of 117 parishes serving a thirteen-county region, including approximately 222,000 individuals of Catholic faith. (Id. at ¶ 42.)
2 The following facts are taken from either the Plaintiff‘s complaint or their exhibits in support of their memorandum opposing the pending motion. In either event, the following averments stand unrebutted on this record. 3 The Complaint originally named as Plaintiff the Most Reverend Donald W. Trautman, proceeding in his capacity as Bishop and Trustee of the Diocese. On October 9, 2012, the caption was amended to reflect the substitution of Lawrence T. Persico in place of Donald W. Trautman, following Bishop Trautman‘s retirement. (See Order of 10/9/12 [ECF No. 39].)
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The Diocese serves both Catholic and non-Catholic residents of Northwestern Pennsylvania in three main ways: by educating children within the Diocese‘s school system, by promoting spiritual growth, and by service to the community. (Complaint ¶¶ 2, 6, 40.) The Diocese carries out this work both on its own and through its support of the Catholic Charities of the Diocese of Erie, whose charitable programs include those operated by Plaintiffs St. Martin Center, Inc. (―SMC‖) and Prince of Peace Center, Inc. (―PPC‖). (Id.)
Through its numerous elementary, middle and secondary schools, the Diocese educates over 7,500 students of all faiths. It also offers tuition assistance for students based solely on financial need. (Complaint ¶ 41.)
In addition to serving the spiritual needs of its Catholic residents and educating Catholic and non-Catholic students, the Diocese serves thousands of Northwest Pennsylvanians through its social services arms. (Complaint ¶ 44.) For example, many non-Catholics are served by the Diocese‘s post-abortion ministry, prison ministry, family ministry, disability ministry, international Diocesan missions, various respect life organizations, and the numerous religious and non-religious charities that receive the Diocese‘s financial support, including the following: (a) St. Elizabeth Center, which operates a food pantry, thrift store, and clothing shop for lower-income individuals; (b) The Good Samaritan Center, a shelter for homeless men and provider of an emergency one-family apartment and other assistance; (c) Better Homes for Erie, a provider of affordable housing to low-income families; and (d) Catholic Charities Counseling and Adoption Services, a provider of professional counseling, adoption counseling, pregnancy counseling, and refugee resettlement services. (Id. at ¶ 45.)
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These social service programs, through support from the Diocese, provide aid to over 50,000 individuals each year without regard to the individuals‘ religion, race, or financial condition. (Id. at ¶ 46.) The Diocese would not be able to provide all of the foregoing social services without the financial contributions of its donors and the work of its numerous volunteers. (Id. at ¶ 48.)
The Diocese employs approximately 70 full-time equivalent employees. (Affidavit of David J. Murphy [24-3], Ex. 2 to Pls.‘ Mem. In Opp. to Defs.‘ Mot. to Dismiss, at p. 3, ¶ 5.) However, the Diocese does not know how many of its employees are Catholic. (Complaint ¶ 49.) The Diocese educates and assists tens of thousands of individuals but it is unknown how many of those educated or served by the Diocese are Catholic. It is therefore unclear to the Diocese whether it would qualify for the exemption from the challenged mandate afforded to ―erligious employers.‖ (Id.)
The Diocese operates a self-insured health plan.4 (Complaint ¶ 52.) Diocesan health plans are administered by Third Party Administrators (―PTAs‖), which are paid a flat administrative fee for each individual covered by the plan. (Id. at ¶ 53.) The TPAs do not pay for any services received by the Diocese‘s covered employees. (Id.)
Through its health plan, the Diocese provides health insurance coverage to approximately 803 employees, including those employed directly by the Diocese as well as those employed by the various parishes, schools, and charitable agencies of the Diocese. The Diocese also covers the dependents of these employees, resulting in a total of approximately 994 insured individuals. (Murphy Affid. at ¶ 5.)
4 As a self-insurer, the Diocese does not contract with a separate insurance company for the provision of health care coverage; instead, the Diocese itself functions as the insurance company by underwriting the medical costs of its employees and the employees of its affiliated corporations. (Complaint ¶ 52.)
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The Diocesan health care plan does not meet the ACA‘s definition of a
―rgandfathered‖ plan. Accordingly, 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) .5 (Complaint ¶ 54.) Under the Diocesan health plan, each new plan
year commences annually on July 1. (Id. at ¶ 55.)
2. Plaintiff The Saint Martin Center, Inc.
Plaintiff SMC is a nonprofit 501(c)(3) affiliate corporation of Catholic Charities
with its principal place of business in Erie, Pennsylvania. (Complaint ¶ 29.) SMC
provides needy individuals and families, regardless of their religious affiliation, with
resources necessary for them to gain self-sufficiency. (Id. at ¶ 56.)
SMC serves underprivileged individuals within the greater Erie community by
providing social services, including an in-house pantry, vouchers for clothing items,
assistance for rent, mortgage, and utility payments, financial assistance for life-
5 Defendants initially disputed the Plaintiffs‘ averment that its health care plan does not qualify for ―grandfathering,‖ on the grounds that the only information asserted in the complaint concerning the plan‘s non-grandfathered status was the Plaintiffs‘ averment that the Diocese had not included a statement of grandfathered status in its plan materials. Defendants argued that Plaintiffs should not benefit from a self-inflicted injury simply by having failed to provide notice in its plan materials of the plan‘s otherwise ―grandfathered‖ status. Without more information justifying the conclusion that the Diocese‘s health care plan cannot benefit from ―grandfathered‖ status, Defendants argued, the claims premised upon the plan(s) should be dismissed due to the Diocese‘s lack of standing.
However, in their brief opposing the pending motion to dismiss and supporting materials, the Plaintiffs explain that the Diocese‘s health care plan cannot be considered ―garndfathered‖ because the Diocese changed insurers between March 23 and November 15, 2010. Specifically, the Diocese represents that its health care plan went from being self-insured to fully insured on July 1, 2010 before switching back to self-insured status on July 1, 2011. (See Affidavit of David J. Murphy, Ex. 2 [ECF No. 24-3] to Pls.‘ Mem. In Opp. to Mot. to Dismiss at p. 3, ¶ 7.) According to the pertinent administrative rules, a group health plan (including one that was self-insured as of March 23, 2010) ceases to be grandfathered if the plan or its sponsor entered into a new policy, certificate, or contract of insurance after March 23, 2010 with an effective date prior to November 15, 2010. 45 C.F.R. § 147.140(a)(1)(ii) (2013).
Following this representation, Defendants have not pursued their challenge concerning the nongrandfathered status of the Diocese‘s health care plan. Accordingly, we will assume for present purposes that the Diocese‘s health care plan is, indeed, ineligible for grandfathered status.
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sustaining medical prescriptions, vouchers for bus passes and gasoline, guidance for creating a budget, and hot breakfast meals. SMC also provides various housing-related services such as counseling for potential homebuyers, fair housing and predatory lending education, lead paint detection, foreclosure prevention counseling, and financial assistance with respect to building code compliance. In addition, SMC operates an early learning center, provides workforce kitchen skills to individuals in need of work, and provides clothing to male individuals attending job interviews and/or reentering the workforce. (Complaint ¶ 56.) SMC relies on financial contributions from its donors and on the work of numerous volunteers, without which it would be unable to provide the foregoing services. (Id. at ¶ 58.)
SMC has over 50 full-time employees but does not know how many of its employees are Catholic. Similarly, SMC does not know how many of its beneficiaries are Catholic. (Complaint ¶¶ 59, 61.)
SMC‘s employees are insured through the Diocese‘s health plan. (Murphy Affid. at ¶ 4; Complaint ¶ 60.)
3. Plaintiff Prince of Peace Center, Inc. Plaintiff Prince of Peace Center, Inc. (―PPC‖) is a nonprofit 501(c)(3) affiliate corporation of Catholic Charities with its principal place of business in Farrell, Pennsylvania. (Complaint ¶ 30.) PPC provides various social and self-sufficiency services to the needy in the greater Mercer County community. (Id. at ¶ 62.) Among the ways in which PPC serves those in need are through its family support services, which include PPC‘s HOPE (Help and Opportunity for Personal Empowerment) Advocacy Program as well as its Project RUTH (Resources,
11

Understanding, Training, and Homes). (Complaint ¶ 62(a).) HOPE Advocacy provides longer term support for individuals and families struggling with poverty, while Project RUTH is a transitional housing program for homeless single parent families. All of the individuals served by HOPE Advocacy and Project RUTH are given the opportunity to learn basic life skills necessary for self-sufficiency and family stability through intensive case management and monthly support groups. (Id.)
PPC also operates emergency assistance programs which provide food, clothing, furniture, and appliances, among other things, at little or no cost to those in need. Through these programs, which are privately funded, PPC is able to offer over $50,000 in assistance every year to help pay utility bills and offer other support with the goal of keeping family units together. PPC‘s AWESOME (Assistance With Education, Shelter, Organization, Money management, and Employment) program assists single men and women with children who desire to attain self-sufficiency. (Complaint ¶ 62(b).)
In addition to the foregoing, PPC runs a mission thrift store, which provides items such as clothing and furniture at low cost. (Complaint ¶ 62(c).) It operates PA WORKWEAR, a program which provides the needy with clothing, accessories, and training to prepare for job interviews. (Id at ¶ 62(d).) It operates a soup kitchen, which serves approximately 5,700 individuals each year, and distributes supplemental groceries to approximately 700 individuals annually. (Id. at ¶ 62(e).) PPC also runs computer classes and makes refurbished computers available to its students and holds various programs and charity drives for underprivileged children in the Mercer County area. (Id. at ¶ 62(f)-(g).)
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PPC does not inquire into the religious beliefs of the individuals it serves. Its mission is to strengthen families, build communities, and reduce poverty among people of all ages, faiths, races and backgrounds. (Complaint ¶ 63.) Without the financial contributions of its donors and the work of many volunteers, PPC would not be able to provide the foregoing services. (Id. at ¶ 65.)
Like SMC, PPC‘s employees are insured through the Diocese‘s health care plan. (Murphy Affid. at 4; Complaint ¶ 66.) PPC does not know how many of its employees are Catholic. (Id. at ¶¶ 67-68.)
B. The Plaintiffs‘ Religious Beliefs Plaintiffs‘ work is guided by and consistent with the teaching of the Catholic
Church, of which Plaintiffs are a constituent part. Among the core teachings of the Catholic Church is the tenet that life begins at conception and continues through natural death. Catholic doctrine therefore regards abortion, sterilization, and contraception as gravely contrary to moral law. (Complaint ¶ 4.)
Catholic faith also teaches that devotion to God is demonstrated through devotion to all people regardless of their faith or financial condition. Catholic social teaching requires Catholic individuals and organizations to work to create a more just community by striving to meet needs wherever they arise. (Complaint ¶ 5.)
Through the educational and social services outlined above, Plaintiffs serve all people, regardless of the individual‘s faith or financial condition. (Id. at ¶¶ 7, 69.) Plaintiffs‘ commitments to teach and to serve all are part of a larger belief system that
13

likewise proclaims Catholic teachings on the sanctity of human life and dignity of all persons. (Id. at ¶ 70.)
C. Plaintiff‘s Complaint This action was commenced on May 21, 2012 with the filing of Plaintiffs‘
complaint. In it, Plaintiffs aver that the ACA‘s mandate forces them to take action subsidizing, providing, and/or facilitating coverage for abortifacients, sterilization services, contraceptives, and related counseling services in violation of their religious beliefs. (Complaint ¶ 21.)
While the ACA and accompanying regulations have exempted ―erligious employers‖ from the Mandate, Plaintiffs contend that the Diocese does not know whether it satisfies the ACA‘s definition of ―erligious employer.‖ (Complaint ¶ 12.) In order to make this determination, Plaintiffs claim, the Diocese will have to submit to ―an intrusive governmental investigation into whether, in the view of the Department of [HHS], its ‗purpose‘ is the ‗inculcation of religious values,‘ whether it ‗prmi arily‘ employs Catholics, and whether it ‗prmi arily‘ serves Catholics.‖ (Id. at ¶ 12.) In any event, however, Plaintiffs SMC and PPC cannot meet the definition of ―erligious employers,‖ as they employ and serve people of all faiths. (Id. at ¶ 14.)
Plaintiffs contend that, to even attempt to qualify as ―erligious employers,‖ they may be required to stop serving and employing non-Catholics – actions which, in Plaintiffs‘ view, would betray their religious commitment to serving all in need without regard to religion. (Complaint ¶ 14.) Thus, Plaintiffs claim, the Government is imposing upon them an untenable moral dilemma whereby they must ―cohose between respecting the sanctity of all human life, on the one hand, and fulfilling their religious
14

mission to provide opportunities and charitable support to all people regardless of their faith, on the other.‖ (Complaint ¶ 8.) Either way, it is alleged, Plaintiffs will be forced to violate their sincerely held religious beliefs. (Id. at ¶ 16.)
Plaintiffs state that their only other choice it to violate the law, either by refusing to provide the mandated services or dropping their health plans. (Complaint at ¶ 15.) This, it is claimed, might well subject Plaintiffs to substantial fines and penalties, which in turn would hamper their ability to provide important services to their communities and erode the funds they use to carry out their educational and charitable missions. (Id.)
Moreover, Plaintiffs contend that they are presently suffering uncertainty as to their rights and duties in planning, negotiating, and implementing their group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries. (Complaint ¶ 26.) They maintain that an adjudication determining the validity of the Mandate is necessary in order to resolve this uncertainty. (Id.)
Plaintiffs‘ complaint sets forth nine causes of action. Count 1 asserts that the Mandate violates Plaintiffs‘ rights under the Religious Freedom Restoration Act inasmuch as it (i) imposes a substantial burden Plaintiffs‘ exercise of religion (ii) without the justification of a compelling governmental interest and (iii) by means which are not the least restrictive means of furthering the alleged governmental interest. Counts 2 through 4 assert various violations of the Plaintiffs‘ First Amendment rights premised upon the allegation that the Mandate substantially burdens the Plaintiffs‘ free exercise of religion, discriminates against their religious viewpoint, infringes upon their free speech rights, and creates excessive governmental entanglement with their religious practices.
15

Count 5 asserts First Amendment violations premised upon the Government‘s alleged interference with matters of internal church governance. Count 6 asserts that the Mandate requires Plaintiffs to subsidize, provide, and/or facilitate education and counseling for certain services they find objectionable and, thereby, compels speech which violates Plaintiffs‘ religious beliefs, in violation of the First Amendment. Count 7 alleges violations of the APA premised upon the Defendants‘ failure to conduct noticeand-comment rulemaking as well as Defendants‘ improper delegation of rulemaking to the IOM. Count 8 alleges arbitrary and capricious conduct on the part of the Defendants in violation of the APA. Count 9 asserts a claim for failing to act ―ni accordance with law‖ in violation of the APA. Among other things, Plaintiffs seek an order enjoining enforcement of the Mandate, vacating the Mandate, and declaring that the Mandate violates Plaintiffs‘ rights under RFRA, the First Amendment, and the APA.
D. Defendants‘ Motion to Dismiss Pursuant to Rule 12(b)(1) On August 6, 2012, Defendants filed the pending motion to dismiss the complaint
for lack of subject matter jurisdiction. In it, Defendants contend that Plaintiffs lack standing to assert their claims and, in addition, they claim the case is not ripe for adjudication.
Defendants‘ motion is premised on the Government‘s actions, following enactment of the ACA, which Defendants say are designed to ameliorate the Plaintiffs‘ religious concerns relative to the Mandate. In particular, Defendants point to: (a) the amendment to the preventative services coverage regulations which exempts certain ―erligious employers‖ from the Mandate; (b) the issuance of guidance relative to the so-
16

called ―safe harbor‖ provision, which is applicable to a larger group of ―erligious organizations‖ having theological objections to the Mandate, and which precludes enforcement of the Mandate as to such organizations until the first plan year beginning on or after August 1, 2013; and (c) the publication of an advance notice of proposed rulemaking (―ANPRM‖) in the Federal Register expressing the Government‘s intent to further amend the regulations in a manner that will accommodate non-exempt, nongrandfathered religious organizations‘ objections to the Mandate.
Defendants contend that these measures deprive Plaintiffs of standing because, in light of them, Plaintiffs cannot demonstrate any imminent injury stemming from the Mandate. According to Defendants, the safe harbor provision protects the Plaintiffs against any enforcement of the Mandate until at least July 1, 2014. Moreover, Defendants say, the absence of any imminent harm is further demonstrated by the Government‘s initiation of further rulemaking which promises to amend the Mandate, well before July of 2014, so as to accommodate Plaintiffs‘ religious objections. For basically the same reasons, Defendants insist that Plaintiffs‘ various claims are not ripe for adjudication inasmuch as there is no present adversity of interest between the parties and a declaratory judgment would provide neither ―cnoclusivity‖ relative to the parties‘ legal relationship nor practical utility.
Plaintiffs have filed a memorandum in opposition to the pending motion in which they attempt to outline various injuries they are presently incurring as a result of the Mandate. The Plaintiffs‘ memorandum is supported by the affidavits of Mary Maxwell and David J. Murphy, which are, in turn, accompanied by various exhibits. For Rule 12(b)(1) purposes, these evidentiary submissions stand unrebutted and will be
17

construed as true and accurate insofar as they assert factual information rather than conclusions of law.
With this background in mind, we turn to our legal analysis, addressing first the issue of ripeness.
IV. DISCUSSION A. Ripeness
―hTe ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.‖ Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003) (citation omitted). The doctrine ―serevs to ‗determine whether a party has brought an action prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.‘‖ Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004) (citation omitted). The ripeness requirement is designed ―toprevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties.‖ Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). ―Vraious considerations underpin the ripeness doctrine, including ... whether the facts of the case are sufficiently developed to provide the court with enough information on which to decide the matter conclusively, and whether a party is genuinely aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to no one.‖ Khodara, supra, at 196 (internal quotation marks and citation omitted).
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Ascertaining whether an administrative action is ripe for judicial review requires courts to evaluate ―teh fitness of the issues for judicial decision‖ and ―the hardship to the parties of withholding court consideration.‖ National Park Hospitality Ass’n, 538 U.S. at 808 (citing Abbott Laboratories, supra, at 149). In the context of a declaratory judgment action, our circuit applies a ―erfined‖ test for determining ripeness by considering: ―1() the adversity of the parties‘ interests, (2) the conclusiveness of the judgment, and (3) the utility of the judgment.‖ Khodara, 376 F.3d at 196 (citations omitted).
Plaintiffs contend, however, that we should apply a ―erlaxed ripeness‖ standard in this case rather than the foregoing three-step analysis. Citing Peachlum v. City of York, Pennsylvania, 333 F.3d 429 (3d Cir. 2003), Plaintiffs point out that ―a[] First Amendment claim, particularly a facial challenge, is subject to a relaxed ripeness standard.‖ Id. at 434. That is to say,
courts have repeatedly shown solicitude for First Amendment claims because of concern that, even in the absence of a fully concrete dispute, unconstitutional statutes or ordinances tend to chill protected expression among those who forbear speaking because of the law‘s very existence. This concern is particularly acute with regard to facial challenges to a statute or ordinance. Id. at 434-35 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). The relaxed ripeness standard in the context of a pre-enforcement challenge thus ―stme s from a concern that a person will merely comply with an illegitimate statute rather than be subjected to prosecution.‖ Id. at 435 (citation omitted). Alternatively, ―teh government may choose never to put the law to the test by initiating a prosecution, while the presence of the statute on the books nonetheless chills constitutionally
19

protected conduct.‖ Id. (citing 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 3532.5 (2d ed. 1984)).
While we acknowledge the application of a relaxed ripeness standard in appropriate cases, we do not agree with Plaintiffs that such a relaxed standard applies here. First, while the Plaintiffs‘ RFRA and First Amendment claims do concern fundamental rights, it is not clear that these claims actually present facial, as opposed to ―asapplied,‖ challenges to the ACA.6 In the First Amendment context, a law may be facially challenged on the basis of being impermissibly overbroad where ―a sbustantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.‖ Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008). Because ―[t]eh concept of ‗substantial overbreadth‘ is not readily reduced to an exact definition,‖ Free Speech Coalition, Inc. v. Attorney General of U.S., 677 F.3d 519, 537 (3d Cir. 2012 )(citing Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)), courts typically must consider factors such as: ―(1) the number of valid applications‖ of the statute; (2) the historic or likely frequency of conceivably impermissible applications; (3) the nature of the activity or conduct sought to be regulated; and (4) the nature of the state interest underlying the regulation.‖ Id. at 537-38 (internal quotation marks omitted; citation omitted). Plaintiffs have not framed their claims in a manner that suggests they are asserting a facial challenge to the Mandate on overbreadth grounds, as opposed to simply asserting a direct infringement of their own personal First Amendment rights.
6 We note that Plaintiffs‘ APA claims do not allege the violation of any fundamental right and, therefore, do not benefit from the relaxed ripeness standard in any event.
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Second, the concerns which underpin the relaxed ripeness standard are not
present here. As Peachlum makes clear, it is the risk of otherwise constitutional speech
being chilled which justifies relaxing the ripeness standard in First Amendment cases
presenting facial-challenges to an allegedly overbroad regulation. In such cases, ―eevn
the remotest threat of prosecution, such as the absence of a promise not to prosecute,
has supported a holding of ripeness where the issues in the case were ‗predominantly
legal‘ and did not require additional factual development.‖ Id., 333 F.3d at 435
(emphasis supplied). Here, as we explain in more detail below, there is effectively a
promise in place by the Defendants not to prosecute the Mandate in its current form;
thus, no fundamental rights of any party are being affected or will be affected under the
Mandate as it currently stands.7 Nor, to put a finer point on it, is there any allegation by
Plaintiffs that their own protected speech, or anyone else‘s, is being chilled; rather they
complain that the Mandate in its current form compels them to engage in speech which
they find objectionable but in which they have not yet actually engaged.
7 For this reason, assuming a relaxed ripeness standard were to be applied here, Plaintiffs cannot establish ―veen the remotest threat of prosecution‖ in light of the Defendants‘ promise not to prosecute them. See Zubik v. Sebelius,--- F. Supp. 2d ---, 2012 WL 5932977 at *7 n.13 (W.D. Pa. Nov.. 27, 2012) (finding that, even under relaxed ripeness standard, Plaintiffs‘ claims would not be justiciable, in part because ―it is not disputed that Defendants have provided a promise not to enforce‖ the Mandate); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Services, --- F. Supp. 2d ---, 2012 WL 2913402 at *23 (D. Neb. July 17, 2012) (―[P]laintiffs in this case do not face a direct and immediate dilemma that involves the sacrifice of their First Amendment rights, and the defendants‘ position on the scope of the exemptions to the contraceptive coverage requirements is tentative – and under these circumstances, the plaintiffs cannot establish ripeness even under a relaxed standard.‖) (footnote omitted). See also Tait v. City of Philadelphia, 410 Fed. Appx. 506, 509 (3d Cir. 2011) (First Amendment challenge to city ordinance, which regulated the work of tour guides and required them to obtain certificates before leading tours in certain historic areas of Philadelphia, was not ripe under relaxed standard where there was no evidence that the speech of any tour guide had been chilled and where the City had expressly ―disavowed‖ enforcement of the Ordinance until some indeterminate point in the future when an announcement would be made that a written test would be administered).
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Finally, this case does not present the type of situation, referenced in Peachlum, where ―teh issues in the case [a]re ‗predominantly legal‘ and d[o] not require additional factual development.‖ 33 F.3d at 435. Despite the fact that Plaintiffs‘ evidentiary record is essentially unchallenged, ―fruther factual development is required to know whether, when, and how the [amended form of the Mandate] will, in fact, apply to Plaintiffs.‖ Most Reverend David A. Zubik v. Sebelius, 2012 WL 5932977 at * 7 n.13 (W.D. Pa. Nov. 27, 2013). In light of these distinguishing facts, we find that the relaxed ripeness standard does not apply.
Having identified the appropriate ripeness standard, we turn to an analysis of the relevant factors. In addressing these issues, however, we acknowledge that this Court is not writing on a blank slate. As of this writing, no less than ten district courts have entertained ripeness inquiries in the context of legal claims very similar to those raised here. Notably, all but one of the courts have found the plaintiffs‘ claims to be unripe. See Colorado Christian University v. Sebelius, Civil Action No. 11-cv-3350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013) (Christian university‘s challenges to the ACA‘s preventative services mandate on First Amendment and other grounds was not ripe); Catholic Diocese of Peoria v. Sebelius, No. 12-1276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013) (claims of Catholic Diocese held unripe); University of Notre Dame v. Sebelius, Case No. 3:12-CV-253-RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012) (claims of Catholic University found to be unripe); The Catholic Diocese of Biloxi, Inc. v. Sebelius, Civil No. 1:12CV158-HSO-RHW (S.D. Miss. Dec. 20, 2012) (claims held unripe); Zubik v. Sebelius, supra, 2012 WL 5932977 (same); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012) (same);
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Wheaton College v. Sebelius, --- F. Supp. 2d ---, 2012 WL 3637162 (D.D.C. Aug. 24, 2012) (same), appeal held in abeyance, 2012 WL 6652505 (D.C. Cir. Dec. 18, 2012); Belmont Abbey College v. Sebelius, --- F. Supp. 2d ---, 2012 WL 2914417 (D.D.C. July 18, 2012) (same), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C. Cir. Dec. 18, 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Services, --- F. Supp. 2d ---, 2012 WL 2913402 at *20-24 (D. Neb., July 17, 2012) (same).8 But see Roman Catholic Archdiocese of New York v. Sebelius, supra, 2012 WL 6042864 at *20-24 (finding that plaintiffs‘ challenge to ACA‘s preventative services mandate was fit for review).
Having carefully reviewed the foregoing authority, this Court finds itself to be in agreement with the majority of district courts which have dismissed lawsuits virtually identical to this one for lack of ripeness. We explain this conclusion more fully in our analysis of the relevant factors which follow.
1. Adversity of Interest As an initial matter, we find no adversity of legal interests between the parties for purposes of the first ripeness prong. ―Ahltough the [plaintiff] need not have suffered a ‗completed harm‘ to establish adversity of interest, … it is necessary that there be a substantial threat of real harm and that the threat ‗must remain real and immediate throughout the course of the litigation.‘‖ Presbytery of New Jersey of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1463 (3d Cir. 1994) (internal quotation marks and citation omitted). ―Where the plaintiff‘s action is based on a contingency, it is
8 Another federal district court has dismissed a similar lawsuit by a non-profit religious organization for lack of standing. See Legatus v. Sebelius, --- F. Supp. 2d ---, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012).
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unlikely that the parties‘ interest will be sufficiently adverse to give rise to a case or controversy within the meaning of Article III.‖ Armstrong World Indus. v. Adams, 961 F.2d 405, 411–12 (3d Cir.1992).
In this case, all of the Plaintiffs‘ claims are premised upon the assumption that they will be imminently required to comply with the Mandate, a situation which, Plaintiffs say, places them in an impossible trilemma by forcing them to either: (a) subsidize, provide and/or facilitate the coverage of abortifacients, sterilization services, contraceptives, and related counseling services, in which case they will be violating sincerely held religious beliefs; (b) attempt to obtain exemption from the Mandate as ―erligious employers,‖ in which case they will be violating different, but no less sincerely held religious beliefs by abandoning service to non-Catholics; or (c) violate the terms of the Mandate, in which case they will likely incur substantial fines and penalties.
However, Plaintiffs‘ assumption that they will be subjected to the Mandate in a manner that violates their sincerely-held religious beliefs is, at most, a contingency which may well never to come to pass. Under the ―sfae harbor‖ provisions established by current regulations, Plaintiffs are protected from any potential enforcement action relative to the Mandate until at least January 1, 2014. In addition, the Defendants have repeatedly stated their intent to amend the Mandate, well before January 1, 2014, for the express purpose of accommodating the Plaintiffs‘ religiously motivated objections to the regulation. Through their issuance of the March 21, 2012 ANPRM, Defendants have in fact already initiated the amendment process. See Certain Preventive Services Under the Affordable Care Act, Administrative Notice of Proposed Rulemaking (―ANPRM‖), 77 Fed. Reg. 16501 (Mar. 21, 2012). Indeed, the Defendants have gone so
24

far as to plainly state that the Mandate in its current form will never be enforced against the Plaintiffs and that they will publish a Notice of Proposed Rulemaking relative to the Mandate in the first quarter of 2013.9
Based on these representations from the Defendants, which we credit as good faith statements of their true intent, we find that adversity of legal interests between the parties is lacking. See Tait v. City of Philadelphia, 410 Fed. Appx. 506, 509 (3d Cir.
2011) (―When a government body promises not to enforce a restriction against a plaintiff, or at all, there is no longer ‗a substantial threat of real harm‘ because ‗intervening events [have] remove[d] the possibility of harm.‘‖) (alterations in the original) (citations omitted); Presbytery of N.J., 40 F.3d at 1470-71 (dismissing religious
challenge to discrimination law as unripe where State indicated, through official‘s affidavit, that churches would not be prosecuted for violations of the law); Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 192 (3d Cir.1990) (holding that a claim
was not ripe as to certain regulations when there was ―na express assurance that there will be no enforcement‖ of those provisions).
Plaintiffs insist that their current complaints do not rest upon uncertain future events because the Mandate is currently the law, unless and until it is changed. The only uncertainty, Plaintiffs say, is whether the Government can alleviate the threat to their federal rights within a limited timeframe – i.e., prior to the expiration of the safe
9 These facts distinguish the present case from Korte v. Sebelius, No. 12-3841 (7th Cir. Dec. 28, 2012) and Monaghan v. Sebelius, No. 12-15488 (E.D. Mich. Dec. 30, 2012), both of which were recently cited by Plaintiffs in support of their request for injunctive relief. Because both Korte and Monaghan involved plaintiffs that were for-profit entities challenging the ACA‘s contraceptive mandate, the plaintiffs in those cases were not beneficiaries of the safe harbor period and additional rulemaking. See 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012). Accordingly, since the issue of ripeness was never joined in those cases, their reasoning does not inform our present analysis.
25

harbor period. Ultimately, the viability of Plaintiffs‘ argument depends upon how we view the Government‘s professed commitment to engage in further amendment of the Mandate and, in particular, whether we view the Government‘s assurances in this regard as something that renders the Mandate a mere contingency.
Plaintiffs urge this Court to follow the approach taken by the District Court in Roman Catholic Archdiocese of New York v. Sebelius, supra. In that case, the district court found the plaintiffs‘ First Amendment and RFRA claims fit for judicial review based on its conclusion that the Mandate, having been formally promulgated in the Federal Register, is not merely a ―onn-final proposed policy,‖ but rather a ―final rule.‖ 2012 WL 6042864 at *21. Consistent with this conclusion, the court viewed the Defendants‘ stated intent to engage in further rulemaking as too amorphous to support the defendants‘ lack-of-ripeness argument. See id. (―[A]lthough the Court will assume that the consideration that the Departments will conduct pursuant to the ANPRM is real, not merely theoretical, there is no way to tell where that will go; the ANPRM is not a ‗concrete plan.‘ It is, in fact, only ‗directed at possibilities.‘‖). Critically, the New York court considered it ―sltlipossible,‖ notwithstanding the defendants‘ publication of the ANPRM, ―taht the Coverage Mandate as it is currently structured will become effective at the expiration of the safe harbor.‖ Id. at *21.
The position taken by the New York court appears to be the minority view, however, and numerous other federal courts have interpreted the prospect of the Mandate‘s enforcement as a mere contingency in light of the Government‘s stated plan for further rulemaking as it relates to non-exempt religious organizations. See Colorado Christian University v. Sebelius, 2013 WL 93188 at *5 (―In the instant case, Defendants
26

have not only committed to further amend the interim final rule but, in fact, have initiated a rulemaking process to do so. Interpreted in a pragmatic way, Defendants' actions render tentative, as opposed to final, the regulation at issue and Defendants' position on the issues raised by [plaintiff].‖); Catholic Diocese of Peoria v. Sebelius, 2013 WL 74240 at *5 (finding that the Government is in the process of amending the preventive service regulations and that this makes the regulations unfit for judicial review); University of Notre Dame v. Sebelius, 2012 WL 6756332 at *3 (stating that, despite the Mandate‘s claim to be a final regulation, ―eevnts following the regulation‘s adoption make clear that it isn‘t final,‖ and ―edfendants have taken prompt and concrete action – the safe harbor provision – indicating that its rule is subject to reconsideration and modification‖); The Catholic Diocese of Biloxi, Inc. v. Sebelius, Civil No. 1:12CV158-HSO-RHW (S.D. Miss. Dec. 20, 2012) (slip op. at p. 13) (―Bceause the preventive services regulations are in the process of being amended, in their present form they represent a tentative agency position.‖); Zubik v. Sebelius, 2012 WL 5932977 at *8-9 (finding, despite the fact that the Mandate is ―celarly definitive‖ by virtue of having been promulgated, that the defendants‘ stated intention of amending the regulation so as to address plaintiffs‘ religious liberties concerns rendered the plaintiffs‘ claims unripe); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 at *5 (―Because the preventive services regulations are in the process of being amended, they are by definition a tentative agency position in which the agency expressly reserves the possibility that its opinion might change and, therefore, are not fit for judicial decision at this time.‖); Wheaton College v. Sebelius, 2012 WL 3637162 at *8 (―Because they are in the process of being amended … the preventive services regulations are by definition a tentative agency
27

position ‗inwhich the agency expressly reserves the possibility that its opinion might change.‘‖) (citations omitted); Belmont Abbey College, 2012 WL 2914417 at *12 (concluding that ―teh Departments‘ position on the policy at issue remains indeterminate‖); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Services, 2012 WL 2913402 at *22 (court agreeing with plaintiffs that the Mandate should be considered ―edfinitive‖ by virtue of its formal promulgation, but concluding that ―[ht]is fact carries little significance … given the tentative nature of the Departments‘ position on religious accommodations to the ACA‘s contraceptive coverage requirements‖).
Recently, the Court of Appeals for the D.C. Circuit addressed the ripeness issue in the consolidated appeals of Wheaton College and Belmont Abbey College. See Wheaton College v. Sebelius, Nos. 12-5273 and 12-5291 (D.C. Cir. Dec. 18, 2012). After acknowledging the Departments‘ creation of a safe harbor period and their stated intent to engage in further amendment of the Mandate prior to the end of the safe harbor period (as set forth in the February 15, 2012 Final Rule and the March 21, 2012 ANPRM), the Court of Appeals observed that the Government had, at oral argument, gone ―further.‖ Id. at p. 2. ―Frsi t,‖ the Court noted, the Government had ―erpresented to the court that it would never enforce [the Mandate] in its current form against the appellants or those similarly situated as regards contraceptive services‖ and instead, a ―diffreent rule‖ would be applied to them – a representation which the Court of Appeals interpreted as a ―ibnding commitment.‖ Id. Moreover, the Court noted, the Government had ―erpresented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013.‖ Id. ―aBsed expressly upon the understanding that the government will not deviate from
28

its considered representations,‖ the Court of Appeals concluded that ―teh cases are not fit for review at this time because ‗[if] we do not decide [the merits of appellants‘ challenge to the current rule] now, we may never need to.‘‖ Id. at 2 (alterations in the original) (quoting American Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012)).10
In their supplemental memorandum discussing the Wheaton and Belmont Abbey College appeal, Defendants essentially reiterate their promise that: (1) ―teh regulations will never be enforced in their present form against entities like the plaintiffs in those cases or plaintiffs here‖ and (2) the Defendants ―will finalize amendments to the regulations in an effort to accommodate religious organizations with religious objections to contraceptive coverage before the rolling expiration of the safe harbor begins in August 2013.‖ (Defs.‘ Resp. to Pls.‘ Notice of Suppl. Auth. [ECF No. 53] at p. 1.) Based on these representations, we, like the majority of other courts cited above, view the Defendants‘ promise to engage in further rulemaking as a good faith, binding commitment which effectively renders the Mandate a ―onn-final‖ agency action, at least insofar as it relates to religious organizations like the Plaintiffs. See Belmont Abbey College, supra, at * 9 (collecting cases in support of the proposition that agencies are presumed to act in good faith). See also Colorado Christian University, supra, at *7 (rejecting the argument, adopted in Roman Catholic Archdiocese of New York, that the preventative services coverage Mandate is ―final‖ for purposes of ripeness and explaining that the Defendants have finalized the religious employer exemption but have
10 The Court of Appeals went on to hold the appeals before it in abeyance (rather than dismiss them), pending regular updates from the Government on the status of its ongoing rulemaking efforts. Like the district court in Colorado Christian University, 2013 WL 93188 at *8, we will adhere to the customary practice of dismissing this unripe case in its entirety, rather than holding it in abeyance.
29

never finalized the mandate itself). Accordingly, Plaintiffs face no realistic scenario of imminent injury resulting from enforcement of the Mandate as it currently exists.
Once the forthcoming amendments to the Mandate are finalized, and assuming Plaintiffs‘ concerns are not sufficiently ameliorated, they ―will have ample opportunity [ ] to bring [their] legal challenge at a time when harm is more imminent and more certain.‖ Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734 (1998). For present purposes, however, Plaintiffs‘ claims are not ripe for adjudication because they ―erst[ ] upon ‗contingent future events that may not occur as anticipated, or indeed may not occur at all,‘‖ Texas v. United States, 523 U.S. 296, 300 (1998) (citations omitted), and because ―teh possibility that future consideration will actually occur before [implementation] is not theoretical but real.‖ Ohio Forestry Ass'n, Inc., 523 U.S. at 735.
Plaintiffs insist that, regardless of the form the Mandate may ultimately take in the future, they are suffering a litany of injuries right now from the existing regulatory scheme and the harm to them will continue until this Court resolves their claims. For example, Plaintiffs maintain that they have an immediate need to know their obligations relative to the Mandate because they are presently assessing and negotiating their budgets and health insurance plans, which must be finalized in advance of the next open enrollment season beginning in November 2013. Specifically, Plaintiffs are weighing the costs of compliance with the Mandate versus the cost of non-compliance. (See Murphy Affidavit [ECF. No. 24-3] at ¶ 25.) Plaintiffs also fear the loss of donations from local businesses should their commercial benefactors be fined at some point for their own non-compliance with the Mandate or should they feel that the Plaintiffs are not acting in accordance with Catholic doctrine. Plaintiffs further contend that Catholic
30

Charities cannot finalize its plans to expand its social services programs in light of the potential fines to which Plaintiffs may be subjected. In addition, Plaintiffs say that the anticipated rulemaking schedule does not afford them enough time to make any necessary changes to their health plans, to adjust their budgets, and to litigate.
Although the ripeness inquiry encompasses consideration of the hardship to the parties that would result from withholding judicial review, Abbott Laboratories, 387 U.S. at 152, it is also the case that ―m[ ]ere economic uncertainty affecting the plaintiff‘s planning is not sufficient to support pre-mature review.‖ Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987). Accord Tennessee Gas Pipline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (plaintiff‘s ―planning insecurity‖ was insufficient to establish hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162 (7th Cir. 1976) (―calims of uncertainty in [plaintiff‘s] business and capital planning are not sufficient to warrant [ ] review of an ongoing administrative process‖).
Accordingly, a number of courts have found the types of injuries alleged here to be insufficient for purposes of satisfying the ripeness requirement in cases where nonexempt religious organizations were challenging the preventive services coverage mandate. See, e.g., Colorado Christian University, supra, at *8 (plaintiff‘s ―presnet planning for future eventualities‖ did not establish hardship for purposes of ripeness inquiry where the planning stemmed from plaintiff‘s ―nogoing speculation that Defendants will fail to amend the [Mandate] in a satisfactory manner‖); University of Notre Dame, supra, at *4 (rejecting, in the context of standing, plaintiff‘s claim of injury stemming from plaintiff‘s professed need for time to prepare for compliance with the Mandate or its replacement; court finding that injury flowed not from the Mandate but
31

from the brevity of the safe harbor period); Catholic Diocese of Nashville, supra, at *5 (―[T]he planning insecurity Plaintiffs advance with regard to what the preventive services regulations may or may not require of them does not suffice to show hardship.‖); Zubik, supra, at *9 (stating that ―teh mere fact that a declaratory judgment would be useful to assist Plaintiffs in making their upcoming operational decisions is insufficient to overcome the fact that no actual controversy yet exists between the parties‖); id. at *11 (in the context of standing, plaintiffs could not demonstrate injury in fact based on allegations that uncertainty from the Mandate was interfering with their need for lead time to arrange their health care plans, their ability to enter into collective bargaining agreement negotiations, and their ability to set tuition rates and make teacher retention decisions); Wheaton College, supra, at * 8 (costs stemming from plaintiff‘s ―dseire to prepare for contingencies‖ and the ―lpanning insecurity‖ which allegedly resulted from uncertainty as to what the preventive services regulations might require of the plaintiff were insufficient to establish hardship for purposes of the ripeness inquiry) (quoting Belmont Abbey College, supra, at *14).
Plaintiffs also claim injury by virtue of the fact that the Diocese is being required by its Third Party Administrator to sign an agreement indemnifying the TPA against any costs that may be incurred with respect to the TPA‘s obligations to comply with the Mandate. More specifically, the Diocese has instructed its TPA not to comply with the terms of the Mandate, and the TPA has asked the Diocese to agree to indemnify it for losses it may incur in complying with the Diocese‘s instructions. (See Murphy Affidavit, Ex. B [ECF No. 24-3] at 16-17.) According to Plaintiffs, the indemnity agreement
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applies to broad categories of costs for potentially staggering amounts of money and may expose the Diocese to significant liability.
This potential liability, however, is completely dependent upon contingent events, namely that: (a) the amended form of the Mandate will fail to alleviate the Plaintiffs‘ religious concerns and (b) will not be complied with by the Diocese‘s TPA, resulting in (c) third party claims for which the Diocese is ultimately liable. Such contingencies are too speculative to support a finding of ripeness. Moreover, to the extent the claimed harm is the Diocese‘s discomfort in having to decide whether or not to sign the indemnity agreement, this represents but another form of ―[m]ere economic uncertainty affecting the plaintiff‘s planning‖ which ―si not sufficient to support pre-mature review.‖ Wilmac Corp., supra, at 813.
Plaintiffs also claim a number of injuries stemming from the exemption pertaining to ―erligious employers.‖11 Unlike the contraceptive services mandate, the ―erligious employer‖ exemption does not appear to be the subject of further rulemaking and may therefore be considered a ―final‖ regulation insofar as it relates to (and apparently excludes) religious organizations like the Plaintiffs. Seizing on this distinction, Plaintiffs have articulated a number of ways in which, they claim, they are harmed by the now
11 To reiterate, the regulations allow for a ―religious employer‖ to be exempted from the Mandate, and they define that term as ―an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.‖ See 45 C.F.R. § 147.130 (a)(1)(iv)(B) (effective Aug. 3, 2011).
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―inf al‖ – and (in their view) unconstitutionally narrow – exemption applicable to religious employers.
They assert, for example, that the Diocese is being required to truthfully certify to its TPA whether or not it satisfies the regulatory definition of a ―erligious employer‖ for purposes of the exemption. According to Plaintiffs, any certification in this regard may impact the scope of Plaintiffs‘ current TPA services as well as attempts by the Diocese to later claim the exemption. Because the Diocese does not feel it can truthfully state that it ―rpimarily employs‖ or ―serves primarily‖ persons who share its ―erligious tenets,‖ Plaintiffs believe that the Diocese cannot presently claim ―erligious employer‖ status; however, they fear that failure to claim such status now may jeopardize the Diocese‘s ability to claim the exemption at a later time. Alternatively, they say, a failure by the Diocese to complete the exemption form as requested may jeopardize its relationship with its TPA.
In addition, Plaintiffs claim that they are being harmed in that the Diocese is unable to determine whether to participate in a particular scholarship program that would require the imminent recruitment of students, both Catholic and non-Catholic. Plaintiffs fear that, should the Diocese involve itself in the recruitment program now, it may be precluded from claiming the religious employer exemption later, since many non-Catholic students would benefit from the program.
In a similar fashion, Plaintiffs state that they are in danger of losing federal grant monies on account of the manner in which the religious employer exemption has been formulated. Because the Plaintiffs‘ federal grants are conditioned upon a certification that Plaintiffs do not discriminate on the basis of religion, Plaintiffs believe that they
34

would be in violation of this provision – and, thereby stand to lose substantial federal funding – should they have to alter their practices in the future for the benefit of the religious employer exemption.
At bottom, all of these professed harms stemming from the allegedly unconstitutional definition of ―erligious employer‖ share a common premise: the assumption that Plaintiffs‘ religious liberties can only be adequately accommodated by exempting them from the Mandate altogether rather than by altering the terms of the Mandate itself. However, that assumption is unwarranted given that the future form of the Mandate is as yet unknown. Indeed, this uncertainty precisely illustrates why the pending dispute is unfit for review. See Colorado Christian University, supra, at *8 (rejecting plaintiff‘s claims of hardship which stemmed from its ongoing speculation that defendants will fail to amend the interim final rule in a satisfactory manner, especially in light of defendants‘ stated intent to amend the rule so as to accommodate the plaintiff‘s religious concerns); University of Notre Dame, supra, at *4 (noting that, while it is possible that the future form of the Mandate might cause the plaintiff to violate its Catholic beliefs, ―on one can say because that future rule hasn‘t been promulgated‖); Wheaton College, supra, at *8 (―Wheaton‘s argument that various hypothetical accommodations are insufficient … only serves to underscore why this Court ought not address the merits of Wheaton‘s claims until the preventive services regulations ‗have taken on fixed and final shape so that [the Court] can see what legal issues it is deciding.‘‖) (alteration in the original) (citation omitted); Belmont Abbey College, supra, at *13 (rejecting as ―sepculative‖ plaintiff‘s assumption that the proposed accommodation set forth in the ANPRM will necessarily be the final rule; noting that ―teh
35

contents of the final amendment have not yet been decided‖ and ―[ti]would thus be premature to find that the amendment will not adequately address Plaintiff‘s concerns‖).
Finally, since it appears that the definition of a ―erligious employer‖ (and therefore the exemption to which it applies) will likely not change via the rulemaking process, Plaintiffs have attempted to frame their complaint partially as an attack on the definition of ―erligious employer‖ itself, which Plaintiffs claim is unconstitutionally narrow. In this regard, Plaintiffs‘ counsel suggested at oral argument that the definition of ―erligious employer‖ as set forth in the Defendants‘ February 2012 regulations could become an insidious gateway for future regulation of Catholic affairs, since the Diocese and its affiliated religious organizations can never meet this narrow definition of a ―erligious employer‖ without fundamentally altering their practices and violating core religious beliefs.
We find unavailing this attempt by Plaintiffs to decouple their objections relative to the Mandate from their objections concerning the exemption for religious employers. In light of the manner in which the regulatory scheme has been constructed, the objected-to definition of ―erligious employer‖ is expressly limited to the context of required preventive care and screenings for women – i.e., the contraceptive Mandate, and cannot reasonably be read as having application outside the context of that particular regulation. See 45 C.F.R. §147.130(a)(iv)(A) and (B). The ANPRM buttresses this conclusion by emphasizing that
this religious exemption is intended solely for purposes of the contraceptive coverage requirement pursuant to section 2713 of the PHS Act and the companion provisions of ERISA and the [Internal Revenue] Code. Whether an employer is designated as ―erligious‖ for these purposes is not intended as a judgment about the mission, sincerity, or
36

commitment of the employer, and the use of such designation is limited to defining the class that qualifies for this specific exemption. The designation will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose. Certain Preventive Services Under the Affordable Care Act (ANPRM), 77 Fed. Reg. at 16502 (emphasis in the original). Consequently, it makes no sense to adjudicate the meaning of the religious employer exemption separate and apart from the Mandate itself, as the Mandate is the only context in which that particular definition of ―erligious employer‖ can have meaning. Additionally, for the reasons discussed at length above, Plaintiffs‘ alleged harms relative to their exclusion from the ―erligious employer‖ exemption are all premised on the fundamental assumption that their religious liberties can only be adequately accommodated by exemption, as opposed to amendment of the Mandate itself. That issue, however, is not one that is presently fit for judicial review. For all of the foregoing reasons, this Court concludes that the interests of the parties are not sufficiently adverse at this juncture to support a finding of ripeness.
2. Conclusiveness of the Judgment The conclusiveness prong of the ripeness inquiry addresses ―whether the parties' rights will be definitively decided by a declaratory judgment.‖ Step–Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 649 n. 9 (3d Cir. 1990). ―f Ia declaratory judgment is based on a contingency, however, it fails to change the parties‘ legal status, and becomes an exercise in futility.‖ Zubik, supra, at *9 (citing Step Saver, 912 F.2d at 649).
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For the same reasons previously discussed in relation to the ―daversity of interests‖ inquiry, I find that the second ripeness prong is also unsatisfied. That is, no judgment can be entered by this Court that would definitively decide the rights of the parties because the final form which the challenged regulation will take is as yet undetermined. Because the Defendants insist that the present form of the Mandate will not be enforced against the Plaintiffs or other similar religious organizations, any adjudication by this Court concerning the Mandate, as it exists today, would represent a waste of judicial resources. See, e.g., Zubik, supra, at *9 (―In this lawsuit, even if Plaintiffs received the declaratory judgment they seek at this time, it would not affect their rights unless Defendants sought or threatened to bring an enforcement action against them. Since this has not occurred, and cannot occur under current law before January 2014, the issuance of a declaratory judgment would be futile.‖); Catholic Diocese of Nashville, supra, at *5 (finding that ―dajudicating Plaintiffs‘ claims now would undermine the interests of judicial economy as it would require the court to review the [Mandate] before it is amended and before it is to be enforced‖ and ―would deny the defendants a full opportunity to consider Plaintiffs‘ objections and to modify the Government‘s positions‖).
Moreover, as Defendants point out, any attempt by this Court to adjudicate possible future amendments to the Mandate would be too speculative to yield meaningful review. It would also defeat one of the rationales of the ripeness doctrine – specifically, ―toprevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also
38

to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way.‖ Abbott Labs, 387 U.S. at 148-49.
Plaintiffs contend that the relevant inquiry for present purposes is whether the issues in dispute are predominantly legal. In Presbytery of New Jersey, our Court of Appeals observed that, for purposes of the conclusivity-of-judgment prong, the usual requirement of a concrete set of facts ―hsa some play in the joints‖ and is not so important where ―teh question is ‗predominantly legal.‘‖ 40 F.3d at 1463-64. Here, Plaintiffs argue, the only potential missing ―fcat‖ is a possible change in the law which, they insist, is legally insufficient to undermine the ripeness of their claims. They consider the current form of the Mandate to be a ―final‖ rule and contend that this Court should not accept the Defendants‘ ―blithe ‗trust us—we‘ll fix it later‘ assertions that the ANPRM will resolve all of Plaintiff‘s difficulties.‖ (Pls.‘ Mem. in Opp. to Defs.‘ Mot. to Dismiss [24] at p. 30.) They view the ANPRM‘s promise of future rulemaking as ―merely a speculative potential future change.‖ (Id. at 30-31.)
As we have previously discussed, however, Plaintiffs‘ view – as espoused by the district court in Roman Catholic Archdiocese of New York, is the minority view and one with which we disagree. The majority of courts which have entertained similar lawsuits by non-exempt religious entities have viewed the Mandate, in its present form, as a ―nno-final,‖ tentative agency action in light of the rule-making process which is, even now, unfolding. See cases discussed, supra, at pp. 26-28. Thus, the ―noly missing fact‖ at issue here – i.e., the question of what form the Mandate will ultimately take, is a critical one which precludes meaningful, conclusive review.
3. Utility 39

Finally, we consider the extent to which a declaratory judgment would be useful to the parties in this case. Unlike the conclusivity inquiry, which addresses whether the parties‘ rights will be definitively decided by a declaratory judgment, the utility inquiry addresses whether the parties‘ plans of action will likely be affected by a declaratory judgment. See Step-Saver Data Systems, Inc., 912 F.2d at 650 n.9. As our circuit court of appeals has explained, ―[]one of the primary purposes behind the Declaratory Judgment Act was to enable plaintiffs to preserve the status quo before irreparable damage was done,‖ and therefore, ―a csae should not be considered justiciable unless ‗the court is convinced that [by its action] a useful purpose will be served.‘‖ Id. at 649 (second alteration in the original).
In their complaint, Plaintiffs seek an order vacating and/or enjoining the Mandate. They also seek a declaratory judgment stating that the Mandate violates their rights under RFRA and the First Amendment as well as the provisions of the APA. In other words, Plaintiffs essentially seek an order that places them in the position they enjoyed prior to enactment of the ACA.
Such an order, however, would have little utility in light of the fact that (1) the safe harbor period official precludes enforcement of the Mandate against the Plaintiffs until at least January 2014; (2) Defendants have committed to finalizing an amended form of the Mandate by August 2013; (3) Defendants have committed to publishing the new proposed amendment during the first quarter of 2013; and (4) Defendants have essentially guaranteed that the Mandate, in its current form will never be enforced against these Plaintiffs (or other similarly situated religious entities). Under these circumstances, the declaratory relief sought in the complaint would be redundant insofar
40

as it relates to the Mandate in its current form and would not preclude the Defendants from promulgating an amended form of the Mandate in any event. See Colorado Christian University, 2013 WL 93118 at *7 (until the pending amendment to the interim final rule is completed, ‖the Court‘s review could encompass, at most, the current amended interim final rule, which would be highly inefficient since it will be altered again soon.‖); Zubik, 2012 WL 5932977 at *9 (holding that ―adeclaratory judgment would be of remarkably little utility at this stage‖ because, to the extent it would aid Plaintiffs‘ operational planning, ―hte mere fact that a declaratory judgment would be useful to assist Plaintiffs in making their upcoming operational decisions is insufficient to overcome the fact that no actual controversy yet exists between the parties.‖).
Accordingly, we find that declaratory relief in this case would provide little, if any, utility at this stage.
B. Plaintiffs’ APA Claims Plaintiffs claim that, even if their RFRA and First Amendment claims are not
presently ripe for review, their APA claims are. We disagree. Section 704 of the APA provides that a ―final agency action for which there is no
other adequate remedy in a court [is] subject to judicial review.‖ 5 U.S.C. § 704. Although the APA does not, by its terms, explicitly define what qualifies as ―final‖ agency action, the ―core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.‖ Franklin v. Massachusetts, 505 U.S. 788, 797 (1992); see also Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (noting that agency action is final if: (1) it marks the consummation of the decisionmaking process – i.e., it must not be of a ―merely
41

tentative or interlocutory nature‖; and (2) rights are determined or legal consequences
flow from the action). Thus, ―a regulation is not ordinarily considered the type of agency
action ‗rpi e‘ for judicial review under the [APA] until the scope of the controversy has
been reduced to more manageable proportions, and its factual components fleshed out,
by some concrete action applying the regulation to the claimant's situation in a fashion
that harms or threatens to harm him.‖ Nat'l Park Hospitality Ass'n v. Dept. of the
Interior, 538 U.S. 803, 808 (2003) (citation omitted).
For the reasons previously discussed at length herein, this Court concludes that
the Mandate, in its present form, cannot be considered a ―inf al agency action‖ for
purposes of review under the APA.12 Further, to the extent Plaintiffs seek review of the
―erligious employer‖ exemption, their complaints cannot be segregated from
12 On this point, we find ourselves in agreement with the conclusion reached by the court in Zubik v. Sebelius, supra. Noting that ―[]courts have been pragmatic when interpreting the finality element of ripeness under the APA,‖ 2012 WL 5932977 at *13 (citations omitted), the Zubik court considered the following ―finality factors‖: (1) whether the decision represents the agency's definitive position on the question; (2) whether the decision has the status of law with the expectation of immediate compliance; (3) whether the decision has immediate impact on the day-to-day operations of the party seeking review; (4) whether the decision involves a pure question of law that does not require further factual development; and (5) whether immediate judicial review would speed enforcement of the relevant act. See id. (citing Solar Turbines Inc. v. Seif, 879 F.2d 1073, 1080 (3d Cir. 1989)). The court then found that:
each of these factors weighs against a determination that Plaintiffs' claims are ripe. First, while the regulations are ―final,‖ by virtue of having been formally promulgated, the regulations do not represent the Defendants' ―definitive position on the question‖ as Defendants have initiated a formal amendment process of these regulations. Second, as discussed at length supra, at the current time there is no expectation of immediate compliance by either Plaintiffs or Defendants. Third, any decision the Court would make today would not have an immediate impact on Plaintiffs' day-to-day operations as the existing regulations are currently under review and are expected to be modified. Next, any decision clearly requires further factual development as the current controversy at this time is based on contingent facts. Finally, immediate judicial review would not speed enforcement as Plaintiffs are not subject to any potential enforcement action before January 2014, if at all.
2012 WL 5932977 at *13.
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consideration of the Mandate itself, and it cannot be said that they presently face any harm or threat of harm from that particular aspect of the regulation.
For these reasons, the Court finds that the Plaintiffs‘ claims under the APA are not ripe for adjudication at this time.
C. Standing Defendants have made the alternative argument that this Court lacks subject
matter jurisdiction over the pending case based upon the Plaintiffs‘ alleged lack of standing. Because our conclusion as to lack of ripeness is dispositive, we need not consider this alternative basis for dismissal. See Colorado Christian University, 2013 WL 93188 at *9 (declining to address defendants‘ standing arguments where case was not ripe for review); Catholic Diocese of Biloxi, supra, at *12 (same).
V. CONCLUSION Based upon the foregoing reasons, this Court concludes that the within action is not ripe for judicial review. Because Plaintiffs have failed to meet their burden of establishing subject matter jurisdiction, this matter will be dismissed in its entirety without prejudice. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MOST REVEREND LAWRENCE

)

T. PERSICO, BISHOP OF THE

)

ROMAN CATHOLIC DIOCESE

)

OF ERIE, as Trustee for the

)

Roman Catholic Diocese of Erie,

)

A Charitable Trust, et al.

)

)

Plaintiff,

)

Case No. 1:12-cv-123-SJM

)

v.

)

)

KATHLEEN SEBELIUS, in her

)

official capacity as Secretary of the

)

U.S. Department of Health and

)

Human Services, et al.,

)

)

Defendants.

)

O R D E R AND NOW, to wit, this 22nd Day of January, 2013, for the reasons set forth in the accompanying Memorandum Opinion, IT IS ORDERED that the Defendants‘ Motion to Dismiss for lack of subject matter jurisdiction [ECF No. 17] shall be, and hereby is, GRANTED. Accordingly, all counts of Plaintiffs‘ complaint are hereby DISMISSED without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and the case shall be marked ―CLOSED.‖

cm: All counsel of record.

s/ Sean J. McLaughlin Sean J. McLaughlin United States District Judge
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U.S. District Court Western District of Pennsylvania (Erie) CIVIL DOCKET FOR CASE #: 1:12-cv-00123-SJM

CLOSED

PERSICO et al v. SEBELIUS et al Assigned to: Judge Sean J. McLaughlin Cause: 42:2000 Civil Rights: Other Plaintiff MOST REVEREND LAWRENCE T. PERSICO BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS TRUSTEE FOR THE ROMAN CATHOLIC DIOCESE OF ERIE, A CHARITABLE TRUST
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Date Filed: 05/21/2012 Date Terminated: 01/22/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
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
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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Pohl Jones Day 500 Grant St.
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Plaintiff THE ROMAN CATHOLIC DIOCESE OF ERIE
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3/29/13 11:35 AM
Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 Email: pmpohl@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 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
Laura E. Ellsworth Jones Day 500 Grant Street Suite 4500 Pittsburgh, PA 15219-2514 394-7929 Email: leellsworth@jonesday.com ATTORNEY TO BE NOTICED
Mary Pat Stahler Jones Day 500 Grant St. Suite 4500 Pittsburgh, PA 15219 412-394-9529 Fax: 412-394-7959 Email: mstahler@jonesday.com ATTORNEY TO BE NOTICED

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

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Plaintiff ST. MARTIN CENTER, INC. AN AFFILIATE NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE
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3/29/13 11:35 AM
ATTORNEY TO BE NOTICED
Leon F. DeJulius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Pohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Kilmartin (See above for address) ATTORNEY TO BE NOTICED
Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED
Laura E. Ellsworth (See above for address) ATTORNEY TO BE NOTICED
Mary Pat Stahler (See above for address) ATTORNEY TO BE NOTICED
represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leon F. DeJulius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Pohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Kilmartin (See above for address) ATTORNEY TO BE NOTICED
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Plaintiff
PRINCE OF PEACE CENTER, INC. AN AFFILIATE NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE

Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED
Laura E. Ellsworth (See above for address) ATTORNEY TO BE NOTICED
Mary Pat Stahler (See above for address) ATTORNEY TO BE NOTICED
represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leon F. DeJulius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Pohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M. Kilmartin (See above for address) ATTORNEY TO BE NOTICED
Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED
Laura E. Ellsworth (See above for address) ATTORNEY TO BE NOTICED
Mary Pat Stahler (See above for address) ATTORNEY TO BE NOTICED

V.
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Defendant KATHLEEN SEBELIUS IN HER OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant HILDA SOLIS IN HER OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF LABOR Defendant TIMOTHY GEITHNER IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE U.S. DEPARTMENT OF TREASURY Defendant U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant U.S. DEPARTMENT OF LABOR
Defendant U.S. DEPARTMENT OF TREASURY
Amicus CALL TO ACTION PENNSYLVANIA
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represented by 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 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis C. Rapp , Jr. Feldstein, Grinberg, Stein & McKee
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Amicus CATHOLICS FOR SOCIAL JUSTICE Amicus PITTSBURGH AREA PAX CHRISTI Amicus ASSOCIATION OF PITTSBURGH PRIESTS Amicus SEVENTY-NINE (79) MEMBERS OF THE UNITED STATES CONGRESS
Amicus
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3/29/13 11:35 AM
428 Boulevard of the Allies Pittsburgh, PA 15219 (412) 263 - 6099 Fax: (412)263-6101 Email: fcr@fgsmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis C. Rapp , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis C. Rapp , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Francis C. Rapp , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Noah Paul Fardo Flaherty Fardo 5541 Walnut Street Pittsburgh, PA 15232 (412) 802-6666 Email: npf@pghfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward L. White American Center for Law & Justice 5068 Plymouth Road Ann Arbor, MI 48105 734-662-2984 Fax: 734-302-1758 Email: ewhite@aclj.org PRO HAC VICE ATTORNEY TO BE NOTICED
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AMERICAN CENTER FOR LAW & JUSTICE

3/29/13 11:35 AM
represented by Noah Paul Fardo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward L. White (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012
05/24/2012
05/24/2012
05/24/2012
05/24/2012

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $350, receipt number 03152375083), filed by ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, PRINCE OF PEACE CENTER, INC., DONALD W. TRAUTMAN. (Attachments: # 1 Civil Cover Sheet) (dm) (Entered: 05/21/2012)
2 Disclosure Statement identifying None as corporate parent or other affiliate, by THE ROMAN CATHOLIC DIOCESE OF ERIE. (dm) (Entered: 05/21/2012)
3 Disclosure Statement identifying None as corporate parent or other affiliate, by ST. MARTIN CENTER, INC.. (dm) (Entered: 05/21/2012)
4 Disclosure Statement identifying None as corporate parent or other affiliate, by PRINCE OF PEACE CENTER, INC. (dm) (Entered: 05/21/2012)
5 Summons Issued as to *TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY* (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons) (jd) (Entered: 05/21/2012)
6 NOTICE of Appearance by Laura E. Ellsworth on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Ellsworth, Laura) (Entered: 05/24/2012)
7 NOTICE of Appearance by John D. Goetz on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Goetz, John) (Entered: 05/24/2012)
8 NOTICE of Appearance by Leon F. DeJulius on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (DeJulius, Leon) (Entered: 05/24/2012)
9 NOTICE of Appearance by Mary Pat Stahler on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC

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06/06/2012 06/08/2012 06/14/2012
06/15/2012 07/03/2012 07/03/2012
07/10/2012 07/10/2012 07/10/2012 08/06/2012

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DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Stahler, Mary Pat) (Entered: 05/24/2012)
10 DISTRICT JUDGE OPTION by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN to have this case randomly assigned to a U.S. District Judge. (Goetz, John) (Entered: 06/06/2012)
Case Reassigned to Judge Sean J. McLaughlin, presiding and Magistrate Judge Susan Paradise Baxter, referral. (dm) (Entered: 06/08/2012)
11 SUMMONS/Return of Service Returned Executed by ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, PRINCE OF PEACE CENTER, INC., DONALD W. TRAUTMAN. KATHLEEN SEBELIUS served 5/29/2012; HILDA SOLIS served 5/29/2012; TIMOTHY GEITHNER served 5/25/2012; US DEPARTMENT OF HEALTH & HUMAN SERVICES served 5/29/2012; US DEPARTMENT OF LABOR served 6/1/2012; UNITED STATES DEPARTMENT OF TREASURY served 6/1/2012; US ATTORNEY GENERAL served 5/29/2012; US ATTORNEY served 5/25/2012, answer due 7/24/2012 (Attachments: # 1 Exhibit) (Pohl, Paul) (Entered: 06/14/2012)
Update Answer Deadline: Answer due from US ATTORNEY 7/24/2012 (dm) (Entered: 06/15/2012)
12 NOTICE of Appearance by Bradley P. Humphreys on behalf of TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 07/03/2012)
13 Joint MOTION to Extend Time to Respond to Complaint by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. Motion(s) referred to Susan Paradise Baxter. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 07/03/2012)
ORDER VACATING the referral to Magistrate Judge Susan Paradise Baxter dated 6/8/2012. Signed by Judge Sean J. McLaughlin on 7/10/12. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 07/10/2012)
Magistrate Judge Susan Paradise Baxter no longer assigned to case. (dm) (Entered: 07/10/2012)
14 ORDER granting 13 Motion to Extend Time; Motion motion to dismiss the Complaint due by 8/6/2012; opposition to such motion due by 8/27/2012; Reply brief due 28 days after Plaintiffs file their opposition to the motion to dismiss. Signed by Judge Sean J. McLaughlin on 7/10/12. (nk, ) (Entered: 07/10/2012)
15 MOTION for Leave to File Amicus Curiae Brief in Support of Defendants by CALL TO ACTION PENNSYLVANIA, CATHOLICS FOR SOCIAL JUSTICE, PITTSBURGH AREA PAX CHRISTI and ASSOCIATION OF PITTSBURGH

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08/06/2012
08/06/2012
08/06/2012 08/07/2012
08/08/2012 08/21/2012 08/21/2012 08/21/2012 08/22/2012 08/24/2012

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PRIESTS (Attachments: # 1 Exhibit, # 2 Proposed Order) (Rapp, Francis) Modified on 8/7/2012 to correct filers (dm) (Entered: 08/06/2012)
16 Disclosure Statement identifying None as corporate parent or other affiliate, by CALL TO ACTION PENNSYLVANIA, CATHOLICS FOR SOCIAL JUSTICE, PITTSBURGH AREA PAX CHRISTI and THE ASSOCIATION OF PITTSBURGH PRIESTS. (Rapp, Francis) Modified on 8/7/2012 to correct filers (dm) (Entered: 08/06/2012)
17 MOTION to Dismiss for Lack of Jurisdiction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 08/06/2012)
18 BRIEF in Support re 17 Motion to Dismiss/Lack of Jurisdiction, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 08/06/2012)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 16 Disclosure Statement, 15 Motion for Leave to File. ERROR: Incorrect filers selected. CORRECTION: Correct filers CALL TO ACTION PENNSYLVANIA, CATHOLICS FOR SOCIAL JUSTICE, PITTSBURGH AREA PAX CHRISTI and THE ASSOCIATION OF PITTSBURGH PRIESTS properly linked to Motion. This message is for informational purposes only. (dm) (Entered: 08/07/2012)
ORDER Response to 17 Motion to Dismiss/Lack of Jurisdiction, Response to Motion due by 8/29/2012. Signed by Judge Sean J. McLaughlin on 8/7/12. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 08/08/2012)
19 MOTION for attorney Edward L. White III to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315-2479105) by American Center for Law & Justice et al. (Attachments: # 1 Proposed Order) (Fardo, Noah) (Entered: 08/21/2012)
20 MOTION to File Amicus Brief by American Center for Law & Justice et al. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Proposed Order) (Fardo, Noah) (Entered: 08/21/2012)
21 Disclosure Statement identifying None as corporate parent or other affiliate, by American Center for Law & Justice et al. (Fardo, Noah) (Entered: 08/21/2012)
ORDER granting 19 Motion for Edward White III to Appear Pro Hac Vice. Signed by Judge Sean J. McLaughlin on 8/22/12. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (nk, ) (Entered: 08/22/2012)
TEXT ORDER granting 15 Motion for Leave to File Amicus Curiae Brief. Signed by Judge Sean J. McLaughlin on 8/24/2012. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter.

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(dm) (Entered: 08/24/2012)
TEXT ORDER granting 20 Motion for Leave to File Amicus Brief. Signed by Judge Sean J. McLaughlin on 8/24/2012. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (dm) (Entered: 08/24/2012)
22 NOTICE of Appearance by Edward L. White on behalf of AMERICAN CENTER FOR LAW & JUSTICE, SEVENTY-NINE (79) MEMBERS OF THE UNITED STATES CONGRESS. (White, Edward) (Entered: 08/24/2012)
23 BRIEF in Opposition re 17 Motion to Dismiss/Lack of Jurisdiction, Amici Curiae Brief In Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss on Behalf of the American Center for Law & Justice and 79 Members of Congress filed by AMERICAN CENTER FOR LAW & JUSTICE, SEVENTY-NINE (79) MEMBERS OF THE UNITED STATES CONGRESS. (White, Edward) (Entered: 08/24/2012)
24 BRIEF in Opposition re 17 Motion to Dismiss/Lack of Jurisdiction, filed by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Affidavit of Mary Maxwell, # 3 Exhibit Affidavit of David J. Murphy) (Pohl, Paul) (Entered: 08/27/2012)
25 BRIEF in Support re 17 Motion to Dismiss/Lack of Jurisdiction, filed by ASSOCIATION OF PITTSBURGH PRIESTS, CALL TO ACTION PENNSYLVANIA, CATHOLICS FOR SOCIAL JUSTICE, PITTSBURGH AREA PAX CHRISTI. (Rapp, Francis) (Entered: 08/31/2012)
26 NOTICE of Appearance by Alison M. Kilmartin on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Kilmartin, Alison) (Entered: 09/04/2012)
27 NOTICE of Appearance by Ira M. Karoll on behalf of PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Karoll, Ira) (Entered: 09/04/2012)
28 MOTION for Leave to File Excess Pages for Memorandum in Support of Motions for (1) Preliminary and Permanent Injunctions, (2) Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, and (3) Scheduling Order or In-Person or Telephonic Status or Trial Setting Conference by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 09/04/2012)
29 MOTION for Preliminary Injunction and, MOTION for Permanent Injunction by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 09/04/2012)

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30 MOTION for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 09/04/2012)
31 MOTION for a Scheduling Order or In-Person or Telephonic Status or Trial Setting Conference re 30 MOTION for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing filed by PRINCE OF PEACE CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN, ST. MARTIN CENTER, INC., 29 MOTION for Preliminary Injunction and MOTION for Permanent Injunction filed by PRINCE OF PEACE CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN, ST. MARTIN CENTER, INC. by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 09/04/2012)
32 BRIEF in Support re 30 Motion for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, 29 Motion for Preliminary Injunction, Motion for Permanent Injunction, 31 Motion for a Scheduling Order or In-Person or Telephonic Status or Trial Setting Conference, Memorandum of Law in Support of Plaintiffs' Motion for Preliminary and Permanent Injunctions, Motion for Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, and Motion for Scheduling Order or In-Person or Telephonic Status or Trial Setting Conference filed by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Pohl, Paul) Modified on 9/10/2012. (tt) (Entered: 09/04/2012)
34 ORDER granting 31 Motion for Status Conference. Status conference set for 9/11/12 at 1:30 p.m. before the Honorable Sean J. McLaughlin. Signed by Judge Sean J. McLaughlin on 9/6/12. (nk) (Entered: 09/06/2012)
35 ORDER granting 28 Motion for Leave to File Excess Pages. Signed by Judge Sean J. McLaughlin on 9/10/12. (nk, ) (Entered: 09/10/2012)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Status Conference held on 9/11/2012. (Court Reporter: Ron Bench) Text-only entry; no PDF document will issue. This text-only entry constitutes a Minute of the Court or Notice on the matter. (nk) (Entered: 09/11/2012)
NOTICE of Oral Argument on Motion re 17 MOTION to Dismiss for Lack of Jurisdiction: Motion Hearing set for 10/17/2012 10:00 AM in Courtroom C before Judge Sean J. McLaughlin. Text-only entry. No PDF document will issue. This textonly entry constitutes the Order of the Court or Notice on the matter. (nk) (Entered: 09/11/2012)
36 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 9/11/2012 before Judge Sean J. McLaughlin. Court Reporter/Transcriber Ronald Bench, Telephone number 814-464-9613. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request

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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/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 9/21/2012. Redaction Request due 10/5/2012. Redacted Transcript Deadline set for 10/15/2012. Release of Transcript Restriction set for 12/13/2012. (dm) (Entered: 09/14/2012)
37 REPLY BRIEF re 17 Motion to Dismiss/Lack of Jurisdiction, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 09/24/2012)
ORDER Brief in Opposition re 30 Motion for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, 29 Motion for Preliminary Injunction, Motion for Permanent Injunction; Brief due by 10/15/2012. Signed by Judge Sean J. McLaughlin on 9/25/12. Text-only entry; no PDF document will issue. This text-only entry constitutes the Order of the Court or Notice on the matter. (nk) Modified on 10/2/2012. (tt) (Entered: 09/25/2012)
38 MOTION to Amend the Case Caption by PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE, DONALD W. TRAUTMAN. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 10/05/2012)
39 ORDER granting 38 Motion amend caption. Signed by Judge Sean J. McLaughlin on 10/9/12. (nk) (Entered: 10/09/2012)
40 MOTION for Leave to File Excess Pages for Memorandum in Opposition to Plaintiffs' Motions for Preliminary and Permanent Injunctinos and for a Rule 65(a) (2) Consolidated Trial and Preliminary Injunction Hearing by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 10/16/2012)
41 BRIEF in Opposition re 30 Motion for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, 29 Motion for Preliminary Injunction, Motion for Permanent Injunction, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) Modified on 10/31/2012. (tt) (Entered: 10/16/2012)
42 ORDER granting 40 Motion for Leave to File Excess Pages. Signed by Judge Sean J. McLaughlin on 10/16/12. (nk) (Entered: 10/16/2012)
Minute Entry for proceedings held before Judge Sean J. McLaughlin: Oral Argument held on 10/17/2012 re 17 MOTION to Dismiss for Lack of Jurisdiction filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT

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11/02/2012 11/08/2012 11/13/2012 11/19/2012 11/28/2012 11/29/2012

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OF LABOR, U.S. DEPARTMENT OF TREASURY, TIMOTHY GEITHNER, HILDA SOLIS, KATHLEEN SEBELIUS. Motion is Under Advisement (Court Reporter: Ron Bench) Text-only entry; no PDF document will issue. This text-only entry constitutes a Minute of the Court or Notice on the matter. (nk ) Modified on 10/19/2012. (nk) (Entered: 10/19/2012)
43 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing on Defendants' Motion to Dismiss held on October 17, 2012 before Judge Sean J. McLaughlin. Court Reporter/Transcriber Ronald J. Bench, Telephone number 814-464-9613. 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/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 10/30/2012. Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/23/2012. Release of Transcript Restriction set for 1/22/2013. (dm) (Entered: 10/23/2012)
44 REPLY BRIEF re 30 Motion for a Rule 65(a)(2) Consolidated Trial and Preliminary Injunction Hearing, 29 Motion for Preliminary Injunction, Motion for Permanent Injunction, filed by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE. (Pohl, Paul) Modified on 11/14/2012. (tt) (Entered: 11/02/2012)
45 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY re 17 Motion to Dismiss/Lack of Jurisdiction. (Attachments: # 1 Exhibit A - Legatus v. Sebelius) (Humphreys, Bradley) (Entered: 11/08/2012)
46 RESPONSE to 45 Notice, filed by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE. (Pohl, Paul) (Entered: 11/13/2012)
47 NOTICE of Supplemental Authority by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE re 32 Brief in Support of Motion, 24 Brief in Opposition to Motion. (Attachments: # 1 Exhibit A) (Pohl, Paul) (Entered: 11/19/2012)
48 RESPONSE to 47 Notice, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Catholic Diocese of Nashville v. Sebelius, # 2 Zubik v. Sebelius) (Humphreys, Bradley) (Entered: 11/28/2012)
49 REPLY to 48 Response, filed by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE. (Pohl, Paul) (Entered: 11/29/2012)

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50 NOTICE of Supplemental Authority by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE re 17 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit A - Archdiocese of New York v Sebelius) (Pohl, Paul) (Entered: 12/05/2012)
51 RESPONSE to 50 Notice, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 12/17/2012)
52 NOTICE of Supplemental Authority by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE (Pohl, Paul) (Entered: 12/19/2012)
53 RESPONSE to Plaintiffs' Notice of Supplemental Authority and Notice of Additional Supplemental Authority to 52 Notice, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Exhibit Catholic Diocese of Biloxi v. Sebelius) (Humphreys, Bradley) (Entered: 12/21/2012)
54 REPLY to 52 Notice, filed by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE. (Attachments: # 1 Exhibit) (Pohl, Paul) (Entered: 12/21/2012)
55 NOTICE of Supplemental Authority by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY re 17 Motion to Dismiss/Lack of Jurisdiction, (Attachments: # 1 Exhibit University of Notre Dame v. Sebelius, # 2 Exhibit Catholic Diocese of Peoria v. Sebelius, # 3 Exhibit Colorado Christian University v. Sebelius) (Humphreys, Bradley) (Entered: 01/10/2013)
56 RESPONSE to 55 Notice, filed by LAWRENCE T. PERSICO, PRINCE OF PEACE CENTER, INC., ST. MARTIN CENTER, INC., THE ROMAN CATHOLIC DIOCESE OF ERIE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Pohl, Paul) (Entered: 01/15/2013)
57 MEMORANDUM OPINION AND ORDER: AND NOW, to wit, this 22nd Day of January, 2013, for the reasons set forth in the accompanying Memorandum Opinion, IT IS ORDERED that the Defendants' Motion to Dismiss for lack of subject matter jurisdiction (ECF No. 17 ) shall be, and hereby is, GRANTED. Accordingly, all counts of Plaintiffs' complaint are hereby DISMISSED without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and the case shall be marked "CLOSED." Signed by Judge Sean J. McLaughlin on 1/22/2013. (kas) (Entered: 01/22/2013)

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Transaction Receipt

03/29/2013 11:35:23

PACER Login: hs0328

Client Code: Fore

Description: Docket Report Search Criteria: 1:12-cv-00123-SJM

Billable Pages: 12

Cost:

1.20

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