Case 2:14-cv-00021-SWS Document 1 Filed 01/30/14 Page 1 of 56
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Paul 1. Hickey (WY# 5-143 I) HICKEY & EVANS. LLP 1800 Carey Ave .. Suite 700 P.O. Drawer 467 Cheyenne. WY 8200J-()467 Telephone: (307) 634-1525 Facsimile: (J07) 638-1335 phickey(o\hickcyevans.com

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Noell. Francisco (Pro Hac Vice Admission Pending) D.C. Bar No. 464752 nj francisco (dljonesday .corn David T. Raimer (Pro Hac Vice Admission Pending) D.C. Bar No. 994558 dtraimervojonesday.corn JONES DAY 51 Louisiana Avenue. N.W. Washington. DC 20001 (202) 879-3939

Counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

DIOCESE OF CHEYENNE; CATHOLIC )

CHARITIES OF WYOMING; SAINT

)

JOSEPH'S CHILDREN'S HOME; ST.

)

ANTHONY TRI-PARISH CATHOLIC )

SCHOOL; JOHN PAUL II CATHOLIC )

SCHOOL AT ST. MATTHEWS;

)

WYOMING CATHOLIC COLLEGE

)

)

Plaintiffs,

)

v.

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

)

U.S. Department of the Treasury; U.S.

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; U.S.

)

DEPARTMENT OF THE TREASURY

)

)

Defendants.

)

v- Civil Action No. ILl- c. 2 / - 'S
COMPLAINT

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1. This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing products, sterilization, and contraception. Those products and services are widely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs-all of which are Catholic entities-to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of their communities, Catholic and non-Catholic alike. Plaintiff Diocese of Cheyenne.' (the "Diocese"), not only provides pastoral care and spiritual guidance for nearly 58,000 Catholics, but also serves individuals throughout the State of Wyoming through its schools and multiple charitable programs. Plaintiff Catholic Charities of Wyoming ("Catholic Charities") offers a host of social services to those in need throughout the State. In a similar vein, Plaintiff St. Joseph's Children's Home ("St. Joseph's Home") provides comprehensive behavioral services to children and families in Wyoming and the surrounding region. Likewise, Plaintiffs St. Anthony Tri-Parish Catholic School CSt. Anthony School") and John Paul II Catholic School at St. Matthews ("JPIICS") provide children with a rigorous education rooted in the faith and teachings
I The Diocese of Cheyenne encompasses the entire State of Wyoming.
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of the Roman Catholic Church in Casper and Gillette respectively. For its part, Plaintiff Wyoming Catholic College, located in Lander ("WCC" or "College"), offers a Catholic liberalarts education, fostering a community of scholars dedicated to the intellectual tradition and moral teachings of the Catholic Church.
3. Plaintiffs' work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: "Preach the Gospel at all times. Use words if necessary." As Pope Emeritus Benedict XVI has put it, "[Ljove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." And as Pope Francis has indicated: "By her very nature the Church is missionary; she abounds in effective charity and a compassion which understands, assists and promotes." Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, "the U.S. Government Mandate") that force Plaintiffs to violate their sincerely held religious beliefs. These rules, first proposed on ] uly 19, 2010, require Plaintiffs and other Catholic and religious organizations to
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provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception, in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government's original proposal provoked, including by some of the current Administration's most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious exercise. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Diocese, and their equally religious charitable arms, such as Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS. In particular, contrary to its initial interpretation, the Government now asserts that the U.S. Government Mandate prohibits the Diocese from ensuring that its religious affiliates provide health insurance consistent with Catholic doctrine.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all "FDA-approved contraceptive methods and contraceptive counseling"-a term that includes abortion-inducing products, contraception, sterilization, and related counseling and education. 8. Second, the Mandate creates a narrow exemption for certain "religious employers," defined to include only organizations that are "organized and operate[] as ... nonprofit entit[ies] and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt
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nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this exemption is intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions." 78 Fed. Reg. 8456,8461 (Feb. 6, 2013). Consequently, the only organizations that qualify for the exemption are "churches, synagogues, mosques, and other houses of worship, and religious orders." [d. This is the narrowest "conscience exemption" ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as "religious employers," thus favoring certain religious organizations and denominations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government's view, are not sufficiently "religious" to qualify for the "religious employer" exemption. These religious entities, deemed "eligible organizations," are subject to a so-called "accommodation" that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The "accommodation," however, is illusory: it continues to require "eligible organizations" to provide, pay for, and/or facilitate access to the objectionable products and services for their employees.
10. In particular, Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, JPIICS, and WCC do not qualify under the Government's narrow definition of "religious employer," even though they are religious organizations under any reasonable definition of the term. Instead, they are "eligible organizations" subject to the so-called "accommodation." But notwithstanding the "accommodation," these Plaintiffs are required to identify and contract with an insurance company (or, for self-insured organizations, a third-party administrator), which, as a
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result, is required to provide or procure "free" abortion-inducing products, contraception, sterilization, and related counseling for these particular Plaintiffs' employees upon receipt of a self-certification. Consequently, the religious organizations' actions authorize the provision of the "free" objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services without subjecting themselves to fines, other negative consequences, and/or lawsuits by individuals and governmental entities.
11. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that further exacerbate their religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called "accommodation," Plaintiffs who do not qualify for the "religious employer" exemption must provide a "certification" to their insurance provider or third-party administrator setting forth their religious objections to the Mandate. Once this "certification" is provided, it automatically triggers an obligation on the part of the insurance provider or third-party administrator to provide or procure the objectionable products and services for these Plaintiffs' employees. For selfinsured Plaintiffs, moreover, before they can even provide the certification, they must first find and identify a third party administrator who is willing to provide the very coverage Plaintiffs find objectionable, and their self-certification constitutes the religious organization's "designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits." 78 Fed. Reg. at 39,879 (emphases added). Plaintiffs' actions, therefore, directly result in the provision of the objectionable products and services to their employees, contrary to their sincerely held religious beliefs.
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12. Plaintiff Diocese appears to qualify as a "religious employer," and, as such, is eligible for the "religious employer" exemption. However, the Diocese operates a self-insured group health plan that encompasses not only individuals directly employed by the Diocese itself, but, in addition, individuals employed by other Catholic organizations including Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS. Because Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS do not themselves appear to qualify as exempt "religious employers," the U.S. Government Mandate requires that the Diocese either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS and other organizations, or (2) no longer extend its plan to these organizations, subjecting them to fines or other negative consequences if they do not contract with another insurance provider that will provide the objectionable coverage.
13. This appears to be a reversal of the Government's original interpretation of the Mandate. As originally understood, the exemption would have allowed Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS to remain on the Diocese's plan, which, in turn, would have shielded them from the Mandate if the Diocese was exempt. See 77 Fed. Reg. 16,501,16,502 (Mar. 21,2012). The Government's revised interpretation of the Mandate, as contained in the Final Rule, removes this protection and thereby increases the number of religious organizations subject to the Mandate. In so doing, the Mandate seeks to divide the Catholic Church, artificially separating its "houses of worship" from its ministries, directly contrary to Pope Emeritus Benedict XVI's admonition that "[tjhe Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word."
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14. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act, and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as conduits for the dissemination of products and services to which they so strongly object. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely held religious beliefs.
15. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
16. The Diocese is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Cheyenne, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
17. Plaintiff Catholic Charities is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Cheyenne, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 50 I(c)(3) of the Internal Revenue Code.
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18. Plaintiff St. Joseph's Home is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Torrington, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
19. Plaintiff St. Anthony School is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Casper, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
20. Plaintiff JPIICS is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Gillette, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
21. Plaintiff WCC is a nonprofit corporation incorporated in Wyoming. Its principal place of business is in Lander, Wyoming. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 50 I(c)(3) of the Internal Revenue Code.
22. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services ("HHS"). She is sued in her official capacity.
23. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
24. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
25. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act ("APA").
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26. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
27. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
28. 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.
29. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely held religious beliefs, as described below.
30. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
31. This Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331, I 343(a)(4), and 1346(a)(2).
32. Venue is proper in this Court under 28 U.S.C. § 1391(e)(l). A. The Diocese 33. Plaintiff Diocese of Cheyenne encompasses thirty-six parishes and thirty-six missions serving the State of Wyoming, including the nearly 58,000 Catholics residing therein. The ministries of the Diocese are performed through a number of separate corporations, including (among others) its parishes, Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS.
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34. The Diocese has been led since 2009 by Bishop Paul D. Etienne. Bishop Etienne is assisted in his ministry by a staff of clergymen, religious brothers and sisters, and lay people. The Diocese has sixteen full-time employees.
35. The Diocese itself carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its individual parishes: through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the State of Wyoming. It also provides numerous other opportunities for service, prayer, worship, and faith formation.
36. The Diocese conducts its educational mission through parish schools. Much of the Diocese's educational mission is performed through seven schools. Those schools serve over eight hundred and sixty students and employ over one hundred teachers (including principals) and an additional number of school staff. The educational work of the Diocese is also carried out through St. Anthony School and JPIICS, among others, which are schools managed and operated as separate, affiliated corporations.
37. Wyoming Catholic schools welcome students in all financial conditions, from all backgrounds, and of any or no faith.
38. Catholic Schools located in the Diocese offer a unique educational experience. Such schools have established priorities that make them stand out from other educational institutions. Students are taught faith-not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. Service,
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the giving of one's time and effort to help others, is taught as both a requirement of true faith and good citizenship. Finally, high academic standards help each student reach his or her potential.
39. The social service work of the Diocese is performed largely through its parishes. The parishes maintain their own charitable efforts, serving the needs of their communities with programs such as food banks, thrift stores, and care of sick and elderly, among others.
40. The Diocese offers its employees a health plan through the RETA Trust, which is a self-insurance trust set up by the Catholic bishops of California in 1999 for the purpose of providing medical coverage consistent with Catholic moral teaching. Consistent with Church teachings, the RETA Trust shares the Diocese's religious objections to providing, procuring, or facilitating access to abortion-inducing products, abortion, sterilization, or contraceptives. Accordingly, the Diocese's plan offered through the RET A Trust only covers products prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy or to induce abortion.
41. The third-party administrator for the Diocese's plan through the RETA Trust is Aetna.
42. Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS also offer coverage through the Diocese's self-insurance plan.
43. The Diocese's self-insured health plan does not meet the Affordable Care Act's definition of a "grandfathered" plan. The Diocese's plan underwent significant changes in benefits effective January 1,2013. Moreover, the Diocese has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it
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believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
44. The plan year for the Diocese (and the organizations it insures) begins on July 1. B. Catholic Charities 45. Catholic Charities is a licensed non-profit adoption agency created in 1964 which serves those of all faiths throughout the state of Wyoming. Its purpose is to carry out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services to those in need. 46. Catholic Charities provides a panoply of services, including assistance for parents faced with a crisis pregnancy; infant and special needs adoption services; aid with international adoptions; group, individual and family psychotherapy; psychological evaluations; and aftercare and foster care services. 47. Catholic Charities also helps to administer affordable housing facilities for low income elderly. 48. Catholic Charities, although an independent non-profit corporation, is affiliated with the Diocese. 49. Catholic Charities has six full-time employees. 50. Catholic Charities does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate. 51. Catholic Charities employees are offered health insurance through the Diocese's health plan.
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C. 81. Joseph's Children's Horne 52. Since 1930, St. Joseph's Home has served as an agency of social ministry in the Catholic tradition. Originally founded as an orphanage, it now provides treatment programs for emotionally disturbed children. Its mission is to provide comprehensive behavioral services to children and families in Wyoming and the surrounding region. 53. To that end, St. Joseph's Home provides services for up to 62 youth ages six to eighteen, offering an accredited psychiatric residential treatment program complete with 24-hour supervision, social skills training, psychotherapy, educational services, and chemical dependency services. 54. Children referred to St. Joseph's Home exhibit a variety of serious concerns including physical and sexual abuse or parental neglect, depression and suicide attempts, oppositional behavior and defiance of authority, runaway and substance abuse problems, excessive fear and anger, aggressive or sexually inappropriate behavior, and involvement with the juvenile court system. St. Joseph's Home exists to help residents identify challenges and develop the action plans necessary to assist in resolving problems. Support for the transformation of its residents into productive adults flows from openness, honesty, encouragement and providing all the tools necessary for this to occur. 55. St. Joseph's Home, although an independent non-profit corporation, is affiliated with the Diocese. 56. St. Joseph's Home serves people in need without regard to their religion. 57. St. Joseph's Home has one hundred and thirty ful1-time employees.
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58. St. Joseph's Home does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, St. Joseph's Home does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
59. St. Joseph's Home employees are offered health insurance through the Diocese's health plan.
D. St. Anthony Tri-Parish Catholic School 60. St. Anthony School, in Casper, Wyoming, prepares children for lives of service to God and neighbor, through a rigorous academic program rooted in the faith and teachings of the Roman Catholic Church. 61. St. Anthony School educates students from preschool through eighth grade. It provides students with a well-rounded curriculum, which meets or exceeds Wyoming state academic standards while offering students a Gospel-based perspective. Students participate annually in outdoor and off-site educational programs and take part in a variety of hands-on learning experiences. Parents are highly involved in the school, working in the classrooms and fundraising to provide support for students in need of tuition assistance. Along with daily religion classes, students also participate in a weekly mass celebrated in the school's chapel. Lessons in faith and church history are also integrated into students' daily activities. 62. Consistent with its Catholic identity, St. Anthony School teaches its students to integrate faith and life. It stresses the importance of building ajust society and provides numerous opportunities for students to participate in charitable work. For example, students annually participate in a number of service projects that support the poor of the community by
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collecting non-perishable food items, gathering school supplies and personal care products, providing outreach to local retirement centers, and fundraising for special educational projects.
63. St. Anthony School welcomes students in all financial conditions, from all backgrounds, and of any or no faith. It has a co-ed student body of approximately 300 students.
64. St. Anthony School has forty-one full-time employees. 65. St. Anthony School, although an independent non-profit corporation, is affiliated with the Diocese. 66. St. Anthony School does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, St. Anthony School does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate. 67. St. Anthony School employees are offered health insurance through the Diocese's health plan. E. John Paul II Catholic School 68. The mission of JPIICS in Gillette, Wyoming, is to provide its students with a strong Catholic foundation of faith, family, community, and academics in a warm and welcoming, caring and Christ-centered environment 69. JPIICS educates students from preschool through the sixth grade. It holds its students to the highest academic standards to enable them to reach their highest potential. Small class sizes provide students with a personalized learning environment, and students are given the opportunity to participate in daily language classes and various extracurricular activities. 70. It also instills in its students the importance of service, giving time, talent and effort to help others as an expression of both faith and good citizenship. It thus provides
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•
numerous opportunities for students to participate in charitable work, including volunteering at soup kitchens, spending time with the elderly, and taking part in local food drives.
71. JPIICS welcomes students in all financial conditions, from all backgrounds, and of any or no faith. It has a co-ed student body of approximately two hundred students.
72. JPIICS has twenty full-time employees. 73. JPIICS, although an independent non-profit corporation, is affiliated with the Diocese. 74. JPIICS does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, JPIICS does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate. 75. JPIICS's employees are offered health insurance through the Diocese's health plan. F. Wyoming Catholic College 76. Established in 2005, WCC is a four-year coeducational Catholic college whose primary educational objective is to offer a traditional liberal arts education that schools the whole person in all three dimensions-mind, body, and spirit. 77. With respect to the mind, this mission is accomplished through a great books curriculum that includes history, literature, writing, reasoning, oratory, Latin, art history, music, mathematics, natural science, philosophy, and theology. With respect to the body, students participate in numerous outdoor educational programs, including horsemanship. With respect to the spirit, students are exposed to the benefits of living in Catholic community and offered daily opportunities for Mass, Confession, and Adoration.
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78. WCC embraces the riches of the Catholic intellectual tradition."It is dedicated to research, to teaching, and to various kinds of service in accordance with its cultural mission." At the same time, Catholic ideals, principles, and attitudes inform all research, teaching, and activities carried out by the school. In other words, "Catholic teaching and discipline . influence all [college] activities, while the freedom of conscience of each person is fully respected. Any official action or commitment of the [school must] be in accord with its Catholic identity."
79. Though committed to remaining a distinctly Catholic institution, the College
opens its doors to students, academics, and prospective employees of all faiths and creeds. wce
currently has one hundred and twelve full-time students enrolled in its four-year program of Catholic liberal education. Including faculty and staff, the school has thirty-two full-time employees.
80. The College's mission to educate and serve others extends beyond the borders of WCe's campus. For example, the College has a robust outdoor leadership program, which includes expeditions across the Rocky Mountains as well as service-oriented trips to Denver, Colorado. The College's choir also travels regularly to Denver and Salt Lake City, Utah, for performances.
81. Faith is at the heart of all of the WCe's efforts. Indeed, the College's commitment to Catholic teachings permeates campus life. The College's student handbook reminds students that the College is committed to the teachings and moral values of the Catholic Church.
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82. WCC's Catholic educational mission is furthered by its leadership. Two-thirds of all board members, faculty, and staff must be practicing Catholics in good standing. The bishop of the Diocese of Cheyenne is also an ex officio member of the Board of the Directors.
83. WCC does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, WCC does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
84. WCC offers its employees health coverage through a self-funded church plan provided by Christian Brothers Employee Benefit Trust.
85. WCC's plan does not cover abortion-inducing products or sterilization. Consistent with Church teachings, WCC's plan covers products commonly used as contraceptives only when prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy.
86. WCC's plan year begins on July 1. 87. The health plan offered by WCC to its employees does not meet the Affordable Care Act's definition of a "grandfathered" plan. It has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plans are grand fathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251 T(a)(2)(i). II. STATllTORY AND REGULATORY BACKGROUND A. Statutory Background 88. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation
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Act, Pub. L. No. 111-152,124 Stat. 1029 (20]0) (collectively, the "Affordable Care Act" or the "Act"). The Affordable Care Act established many new requirements for "group health plan]s]," broadly defined as "employee welfare benefit plan[s]" within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.c. § I 002( I), that "provide[] medical care ... to employees or their dependents." 42 U.S.c. § 300gg-91 (a)(l ).
89. As relevant here, the Act requires an employer's group health plan to cover certain women's "preventive care." Specifically, it indicates that "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph." 42 U.S.c. § 300gg-13(a)(4). Because the Act prohibits "cost sharing requirements," the health plan must pay for the full costs of these "preventive care" services without any deductible or co-payment.
90. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010." 75 Fed. Reg. 41,726, 41,731 (July 19,2010); 42 U.S.c. § 18011. These socalled "grandfathered health plans do not have to meet the requirements" of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id. at 41,732.
91. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
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a.

Under the Internal Revenue Code, certain employers who fail to offer

"full-time employees (and their dependents) the opportunity to enroll in minimum

essential coverage under an eligible employer-sponsored plan" will be exposed to

significant annual fines of $2,000 per full-time employee. See 26 U.S.c. § 4980H(a),

(c)(l).

b.

Under the Internal Revenue Code, group health plans that fail to provide

certain required coverage may be subject to a penalty of $100 a day per affected

beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro,

Congo Research Serv., RL 7-5700, Enforcement of the Preventive Health Care Services

Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that

this applies to employers who violate the "preventive care" provision of the Affordable

Care Act),

c. Under ERISA, plan participants can bring civil actions against insurers for

unpaid benefits. 29 U.S.c. § 1132(a)(I)(B); see also Congo Research Serv., RL 7-5700.

d. Similarly, the Secretary of Labor may bring an enforcement action against

group health plans of employers that violate the U.S. Government Mandate, as

incorporated by ERISA. See 29 U.S.c. § 1132(b)(3); see also Congo 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).

92. Several of the Act's provisions, along with other federal statutes, reflect a clear

congressional intent that the executive agency charged with identifying the "preventive care"

required by § 300gg-13(a)(4) should exclude all abortion-related services.

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93. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution's refusal to provide abortion-related services. Specifically, it states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(l), 125 Stat. 786, 1111 (2011). The term "health care entity" is defined to include "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan." Id. § 507(d)(2) (emphasis added).
94. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 11lth Congo § 265 (Nov. 7,2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, III th Congo (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as "budget reconciliation" that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they
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would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535,75 Fed. Reg. 15,599 (Mar. 24,2010).
95. The Act, therefore, was passed on the central premise that all agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion. /d. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background - Defining "Preventive Care" and the Narrow Exemption 96. In a span of less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act's clear purpose to protect the rights of conscience. The Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the Mandate imposes on Plaintiffs' religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
(1) The Original Mandate 97. On July 19,2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women's "preventive care." 75 Fed. Reg. 41,726 (citing 42 U.S.c. § 300gg-13(a)(4)). Initially, the rules did not define "preventive
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care," instead noting that "[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1,2011." [d. at 41,731.
98. To develop the definition of "preventive care," HHS outsourced its deliberations to the Institute of Medicine ("10M"), a non-governmental "independent" organization. The 10M in turn created a "Committee on Preventive Services for Women," composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with "pro-choice" advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
99. Unsurprisingly, the 10M Committee invited presentations from several "prochoice" groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
100. At the close of this process, on July 19,2011, the 10M issued a final report recommending that "preventive care" for women be defined to include "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity." 10M, Clinical Preventive Services for Women: Closing the Gaps 164-65 (2011), available at http://www.iom.edu/Reports/ 2011IClinical-Preventive-Services- for- Women-Closing-the-Gaps.aspx.
101. The extreme bias of the 10M process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: "[T]he committee process
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for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee's composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy." Id. at 232.
102. At a press briefing the next day, the chair of the 10M Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the "coercive dynamic" of the Mandate, asking whether the Committee considered the "conscience rights" of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religiousliberty issue, stating bluntly: "[W]e did not take into account individual personal feelings." See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom.edulReports/20 ll/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a "slippery slope" that could occur by "opening up that door" to religious liberty. See Executive Overreach: The HHS
Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, uz" Congo
(2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
103. Less than two weeks after the 10M report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the 10M's definition of "preventive care," including all "FDA-approved contraception methods and contraceptive counseling." See U.S. Dep't of Health & Human Servs., "Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost," available at
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http://www.hhs.gov/news/press/201Ipres/08/2011080Ib.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the 10M Committee and stated that it had "relied on independent physicians, nurses, scientists, and other experts" to reach a definition that was "based on scientific evidence." Under the final "scientific" definition, the category of mandatory "preventive care" extends to "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See U.S. Dep't of Health & Human Servs., "Women's Preventive Services: Required Health Plan Coverage Guidelines," http://www.hrsa.gov/womensguidelines.
104. The Government's definition of mandatory "preventive care" also includes abortion-inducing products. For example, the FDA has approved "emergency contraceptives" such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
105. Shortly after announcing its definition of "preventive care," the Government proposed a narrow exemption from the Mandate for a small category of "religious employers" that met all of the following four criteria: "( I) 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"; and "(4) The organization is a nonprofit organization as described in section 6033(a)( 1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code
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of 1986, as amended." 76 Fed. Reg. 46,621,46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
106. As the Government itself admitted, this narrow exemption was intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions." [d. at 46,623. It provided no protection for most religious universities, elementary and secondary schools, hospitals, and charitable organizations.
107. The sweeping nature of the Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. As Cardinal Donald Wuerllater wrote, "HHS's conception of what constitutes the practice of religion is so narrow that even Mother Teresa would not have qualified."
108. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government "finalize[d], without change," the narrow exemption as originally proposed. 77 Fed. Reg. at 8725, 8729 (Feb. 15,2012). At the same time, the Government announced that it would offer a "a one-year safe harbor from enforcement" for religious organizations that remained subject to the Mandate. [d. at 8728. As noted by Cardinal Timothy Dolan, the "safe harbor" effectively gave religious groups "a year to figure out how to violate our consciences."
109. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking ("ANPRM") that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501. The ANPRM did not
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revoke the Mandate, and in fact reaffirmed the Government's view at the time that the "religious employer" exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical "possible approaches" that would, in the Government's view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to "create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration's earlier stated positions on mandated contraceptive coverage." See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15,2012), available at http://www.usccb.orglaboutfgeneralcounsel/rulemakinglupload/comments-on-advance-notice-of-proposed-rulemaking-on-preventiveservices-l 2-05-1 5.pdf.
(2) The Government's Final Offer and the Empty "Accommodation" 110. On February 1,2013, the Government issued a Notice of Proposed Rulemaking ("NPRM"), setting forth in further detail its proposal to "accommodate" the rights of Plaintiffs and other religious organizations. Contrary to the Government's previous assurances, however, the NPRM adopted the proposals contained in the ANPRM. The NPRM, like the Government's previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that "the 'accommodation' still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments." Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20,2013),
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available at http://www.usccb.org/about/general-counsel/rulemaking/upload/20 l3-NPRMComments-3-20-final.pdf.
Ill. Defendants apparently gave no consideration to these or other comments submitted in opposition to the NPRM's proposed "accommodation."
112. In fact, on April 8, 2013, the same day the notice-and-comment period ended, Defendant Sebelius indicated that the accommodation would be implemented, regardless of opposition. She stated: "We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. ... [A]s of August 1st, 2013, every employee who doesn't work directly for a church or a diocese will be included in the benefit package." The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/ conversation-kathleen-sebelius (Episode 9 at 2:25) (last visited July 12,2013) (emphases added).
1l3. Unsurprisingly, therefore, on June 28,2013, the Government issued a final rule that adopted substantially all of the NPRM's proposal without significant change. See 78 Fed. Reg. 39,870 (July 2, 2013) ("Final Rule").
114. The Final Rule makes three changes to the Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them appears to significantly increase that burden by significantly increasing the number of religious organizations subject to the Mandate.
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115. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of "religious employer." In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt "religious employer" is simply "an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3 )(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 78 Fed. Reg. at 39,896 (codified at 45 C.F.R. § 147.13l(a)). As the Government has admitted, this new definition does "not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules." 78 Fed. Reg. at 846l. Instead, it continues to "restrictllthe exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders." Id. In this respect, the Final Rule mirrors the intended scope of the original "religious employer" exemption, which focused on "the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government's view, "religious employers."
116. The "religious employer" exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are "refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code." This category, however, includes only (i) "churches, their integrated auxiliaries, and conventions or associations of churches," and (iii) "the exclusively religious activities of any religious order." The IRS, moreover, has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220
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(2009). Among these 14 factors is whether the group has" a recognized creed and form of worship," "a definite and distinct ecclesiastical government," "a formal code of doctrine and discipline," "a distinct religious history," "an organization of ordained ministers" "a literature of its own," "established places of worship," "regular congregations, "regular religious services," "Sunday schools for the religious instruction of the young," and "schools for the preparation of its ministers." [d. Not only do these factors favor some religious denominations and organizations at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which entities fall into the favored category.
117. Second, the Final Rule establishes an illusory "accommodation" for certain nonexempt objecting religious entities that qualify as "eligible organizations." To qualify as an "eligible organization," a religious entity must (1) "oppose[] providing coverage for some or all of [the] contraceptive services," (2) be "organized and operate[] as a non-profit entity"; (3) "hold]] itself out as a religious organization," and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 C.F.R. § 54.98152713A(a). The provision of this self-certification then automatically requires the insurance issuer or third-party administrator to provide or arrange "payments for contraceptive services" for the organization's employees, without imposing any "cost-sharing requirements (such as a copayment, coinsurance, or a deductible)." [d. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization's health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713 45 C.F.R. § 147.131(c)(2)(i)(B).
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In addition, self-insured organizations are prohibited from "directly or indirectly, seek[ing] to
influence the[ir] third party administrator's decision" to provide or procure contraceptive services. 26 C.P.R. § 54.9815-2713.
118. This so-called "accommodation" fails to relieve the burden on religious organizations. Under the original version ofthe Mandate, a non-exempt religious organization's decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Pinal Rule, a non-exempt religious organization's decision to offer a group health plan, coupled with a self-certification, still results in the provision of coverage-now in the form of "payments"-for abortion-inducing
products, contraception, sterilization, and related counseling. [d. § 54. 9816-2713A(b)-(c). In
both scenarios, Plaintiffs' actions authorize the provision of "free" contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services is directly tied to Plaintiffs' insurance policies, as the objectionable "payments" are
available only so long as an employee is on the organization's health plan. See 29 C.P.R. §
2590.715-2713A (for self-insured employers, the third-party administrator "will provide or arrange separate payments for contraceptive services ... for so long as [employees] are enrolled in [their] group health plan"); 45 C.P.R. § 147.131 (c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must "[p]rovide separate payments for any contraceptive services ... for plan participants and beneficiaries for so long as they remain enrolled in the plan"). For selfinsured organizations, moreover, the self-certification constitutes the religious organization's
"designation of the third party administrator(s) as plan administrator and claims administrator for
contraceptive benefits." 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans
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offered by non-exempt religious organizations are the vehicle by which "free" abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations' employees.
119. Needless to say, this shell game does not address Plaintiffs' fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
120. The so-called "accommodation," moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called "accommodation," non-exempt Plaintiffs must provide a "certification" to their insurance provider or third-party administrator setting forth their religious objections to the Mandate. For self-insured Plaintiffs, before they can even provide the certification, they must first find and identify a third party administrator who is willing to provide the very coverage Plaintiffs find objectionable. Once this "certification" is provided, it automatically triggers an obligation on the part of the insurance provider or third-party administrator to provide or procure the objectionable products and services for these Plaintiffs' employees. Moreover, it is only through Plaintiff Diocese's contractual relationship with the third party administrator that any employee of the "eligible" Plaintiffs will receive the objectionable coverage.
121. The U.S. Government Mandate also requires Plaintiffs to subsidize the objectionable products and services.
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122. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be "cost neutral" and, therefore, that Plaintiffs will not actually be paying for it.
123. The Government's "cost-neutral" assertion, however, is implausible. It rests on the assumption that cost "savings" from "fewer childbirths" will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8463. Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost "savings" from "fewer childbirths" will offset the cost of providing contracepti ve services.
124. More importantly, even if the Government's "cost-neutral" assertion were true, it is irrelevant. The so-called "accommodation" is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, "childbirths," will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
125. For self-insured organizations, the Government's "cost-neutral" assumption appears to be similarly implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882. Such fee reductions are to be established through a
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highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes, however, do not fully compensate the regulated entities for the costs and risks incurred. As a result, few if any thirdparty administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
126. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called "accommodation."
127. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
128. Third, the Government's interpretation of the Final Rule appears to actually increase the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government's initial interpretation of the "religious employer" exemption, if a nonexempt religious organization "provided health coverage for its employees through" a plan offered by a separate, "affiliated" organization that was "exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees." 77 Fed. Reg. at 16,502.
129. For example, Plaintiff Diocese offers a self-insured group health plan that covers not only the Diocese itself, but other Catholic organizations-including Plaintiffs Catholic Charities, St. Joseph's, St. Anthony, and JPIICS. Under the original interpretation of the
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exemption, if the Diocese was an exempt "religious employer," then Catholic Charities, St. Joseph's, St. Anthony, and JPIICS received the benefit of that exemption, regardless of whether they independently qualified as "religious employers," since they could continue to participate in the Diocese's exempt plan. These affiliated organizations, therefore, could benefit from the Diocese's exemption even if they, themselves, could not meet the Government's unprecedentedly narrow definition of "religious employer."
130. The Final Rule eliminates this safeguard. Instead, it interprets the exemption to require "each employer" to "independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents." 78 Fed. Reg. at 39,886; see also 78 Fed. Reg. at 8467 (NPRM). Since Plaintiffs Catholic Charities, St. Joseph's, St. Anthony, and JPIICS do not appear to meet the Government's narrow definition of "religious employers," they are now subject to the U.S. Government Mandate.
131. Moreover, since Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS are part of the Diocese's self-insured group health plan, the Diocese is now required by the Mandate to do one of two things: sponsor a plan that will provide the employees of these organizations with "free" contraception, abortion-inducing products, sterilization, and related counseling, or, alternatively, decline to extend its plan to these organizations, subjecting them to fines or other negative consequences if they do not contract with another insurance provider that will provide the objectionable coverage.
132. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs. The second option compels the Diocese to submit to the government's interference with
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its structure and internal operations by accepting a construct that divides churches from their ministries.
133. In this respect, the Mandate seeks to divide the Catholic Church. The Church's faith in action, carried out through its charitable and educational arms, is every bit as central to the Church's religious mission as is the administration of the Sacraments. In the words of Pope Emeritus Benedict XVI, "[tjhe Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as "religious" and the other as not. The Mandate therefore deeply intrudes into internal Church governance.
134. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government Mandate imposes on Plaintiffs' religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerely held religious beliefs. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS' RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs' Religious Exercise 135. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, "[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
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136. The U.S. Government Mandate violates Plaintiffs' rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
137. It is a core tenet of Plaintiffs' religion that abortion, contraception, and sterilization are serious moral wrongs.
138. Plaintiffs' Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization, including by contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs' employees. Likewise, Plaintiffs object to being forced to take other actions that facilitate access to the objectionable products and services, including the Mandate's self-certification requirement.
139. Catholic teaching not only prohibits Catholic organizations from providing payments and/or coverage for abortion-inducing products, contraception, sterilization, and related counseling, but also from authorizing a third-party to do so, even if the third party ultimately has the discretion not to provide such payments and/or coverage.
140. Plaintiffs' beliefs are deeply and sincerely held. 141. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit-provide, pay for, and/or facilitate access to objectionable products and services or else incur fines or other negative consequences. 142. The U.S. Government Mandate therefore imposes a substantial burden on plaintiffs' religious beliefs. 143. The Mandate's exemption for "religious employers" does not alleviate the burden.
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144. The "religious employer" exemption does not apply to Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, JPIICS, and WCe.
145. Although Plaintiff Diocese is a "religious employer," the Mandate still requires it either to (1) sponsor a plan that will provide Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, JPIICS, and other Catholic organizations, with access to the objectionable products and services, or (2) no longer extend its plan to these organizations, subjecting them to fines or other negative consequences if they do not contract with another insurance provider that will provide the objectionable coverage.
146. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs.
147. The second option compels the Diocese to submit to the government's interference with its structure and internal operations by accepting a construct that divides churches from their ministries.
148. The so-called "accommodation" does not alleviate the burden on Plaintiffs' sincerely held religious beliefs.
149. Notwithstanding the so-called "accommodation," Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
150. Plaintiffs' Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the Mandate.
151. Finally, the Plaintiffs cannot avoid the U.S. Government Mandate without incurring fines or other negative consequences. If they eliminate their employee health plans, for
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those Plaintiffs with more than fifty employees, they are subject to annual fines of $2,000 per full-time employee. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 a day per affected beneficiary.
152. Potential liability for significant fines and uncertainty regarding Plaintiffs' ability to offer and provide health benefits undermines Plaintiffs' ability to retain and recruit employees. Were Plaintiffs to stop offering health benefits, they would be at a competitive disadvantage to institutions who do not have religious objections to the Mandate.
153. These fines and other negative consequences therefore coerce Plaintiffs into violating their religious beliefs.
154. In short, while the President claims to have "found a solution that works for everyone" and that ensures that "religious liberty will be protected," his promised "accommodation" does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs' religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 155. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs' religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
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156. For example, the Mandate exempts all "grandfathered" plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the government has admitted, "98 million individuals will be enrolled in grandfathered group health plans in 2013." 75 Fed. Reg. at 41,732. Elsewhere, the government has put the number at 87 million. See Healthcare.gov, "Keeping the Health Plan You Have" (June 14, 20 I0), http://www.healthcare.gov/news/factsheets/20 I 0/06/keeping-the-health-plan- you-havegrandfathered.html. And according to one district court, "191 million Americans belong[ed] to plans which may be grandfathered under the ACA." NewLand v. SebeLius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
157. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.c. § 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
158. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code.
159. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5,2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs
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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."
160. In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
161. The 10M Committee that initially adopted the definition of "preventive care" was overwhelmingly stacked with individuals who similarly oppose many Catholic teachings, leading the lone dissenter on the Committee to lament that the Committee's recommendation reflected the members' "subjective determinations filtered through a lens of advocacy." 10M, supra, at 232.
162. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The Ll.S, Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
163. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
164. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has
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held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
165. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
166. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom-a fundamental right enshrined in the U.S. Constitution-and access to the wide variety of social and educational services that Plaintiffs provide. Plaintiffs Diocese, St. Anthony School, and JPIICS educate children whose families want an alternative to the public school system, while Plaintiffs Catholic Charities, and St. Joseph's Home, provide a range of social services to the citizens of the State. Likewise, Plaintiff WCC provides its students with a high-quality education in numerous fields of study. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do "more good for a community than a government program ever could." The negative consequences resulting from a refusal to comply with the U.S. Government Mandate, however, would undermine these good works.
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167. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. IV. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 168. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 169. 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. 170. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 171. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 172. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 173. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 174. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
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175. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
176. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
177. Plaintiffs have no adequate remedy at law. 178. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 179. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 180. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion. 181. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 182. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 183. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 184. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or
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facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
185. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
186. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
187. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
188. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
189. 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.
190. Plaintiffs have no adequate remedy at law. 191. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speechin Violation of the FreeSpeechClauseof the FirstAmendment 192. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 193. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable.
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194. The First Amendment protects organizations as well as individuals against compelled speech.
195. Expenditures are a form of speech protected by the First Amendment. 196. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious beliefs. 197. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs. 198. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services. 199. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs' employees. 200. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs' employees. 201. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny. 202. The U.S. Government Mandate furthers no compelling governmental interest.
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203. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
204. Plaintiffs have no adequate remedy at law. 205. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV
Prohibition of Speech in Violation of the First Amendment 206. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 207. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 208. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might "influence," "directly or indirectly," the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs' employees. 209. Plaintiffs have no adequate remedy at law. 210. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V
Official "Church" Favoritism and Excessive Entanglement with Religion in Violation of the Establishment Clauseof the FirstAmendment
211. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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212. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a "religious employer" that favors some religious groups while excluding others.
213. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government's favored definition.
214. The "religious employer" exemption violates the Establishment Clause in two ways.
215. First, it favors some religious groups over others by creating an official definition of "religious employers" that excludes legitimate religious ministries. Religious groups that meet the Government's official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not. This also has the effect of discriminating among religious denominations.
216. Second, the "religious employer" exemption also violates the Establishment Clause because it requires the Government to determine whether groups qualify as "religious employers" based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive l4-factor test to determine whether a group meets the requirements of section 6033(a)( 1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has "a distinct religious history" or "a recognized creed and form of worship." But it is not the Government's place to determine whether a group's religious history is "distinct," or whether the group's "creed and form of worship" are "recognized." By directing the Government to engage
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in such inquiries, the "religious employer" exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
217. Plaintiffs have no adequate remedy at law. 218. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the FirstAmendment 219. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 220. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 221. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine. 222. 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. 223. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 224. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices.
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•
225. Plaintiffs have abided and must continue to abide by the teaching of the Catholic Church on these issues.
226. 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.
227. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
228. Plaintiff Diocese has further made the internal decision that its affiliated religious entities, including those affiliates who are Plaintiffs in this case, should offer their employees health-insurance coverage through the Diocese's plan, which allows the Diocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
229. The U.S. Government Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
230. The U,S. Government Mandate's interference with Plaintiffs' internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
231. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs' faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
232. Plaintiffs have no adequate remedy at law.
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233. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COllNTVII megalAction in Violation of theAPA 234. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 235. The APA requires that all Government agency action, findings, and conclusions be "in accordance with law." 236. The U.S. Government Mandate, its exemption for "religious employers," and its so-called "accommodation" for "eligible" religious organizations are illegal and therefore in violation of the APA. 237. 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). 238. The term "health care entity" is defined to include "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan." [d. § 507(d)(2) (emphasis added). 239. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. By
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issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
240. The U.S. Government Mandate violates RFRA. 241. The U.S. Government Mandate violates the First Amendment. 242. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.c. § 706(2)(A). 243. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 244. Plaintiffs have no adequate remedy at law. 245. Defendants' failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Erroneous interpretation of the exemption with respect to multi-employer plans 246. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 247. The Mandate explicitly exempts "group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)" from "any requirement to cover contraceptive services." 45 C.F.R. § 147.131(a). 248. In the ANPRM, Defendants acknowledged that the religious employer exemption was "available to religious employers in a variety of arrangements." 77 Fed. Reg. at 16,502. 249. Specifically, Defendants indicated that a nonexempt entity could "provide[] health coverage for its employees through" a plan offered by a separate, "affiliated" organization that is a "distinct common-law employer." [d.
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•
250. In such a situation, Defendants stated that if the "affiliated" organization was "exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees." [d.
251. This reading reflects the plain and unambiguous text of the regulation, which by its terms exempts "group health plan[s]" so long as they are "established or maintained by a religious employer."
252. Nonetheless, when issuing the Final Rule, Defendants reversed course, rejecting a "plan-based approach" and adopting an "employer-by-employer approach" whereby "each employer [must] independently meet the definition of religious employer ... in order to avail itself of the exemption." 78 Fed. Reg. at 39,886.
253. An employer-based approach contradicts the plain text of the regulation, which exempts "group health plan[s]," not individual employers.
254. The Diocese meets the Mandate's definition of a religious employer, and therefore, the group health plan it has "established or maintained" is exempt from providing coverage for abortion-inducing products, sterilization, contraception, and related education and counseling.
255. The Defendants erroneous interpretation of the religious employer exemption, however, precludes the Diocese's affiliated entities, including Plaintiffs Catholic Charities, St. Joseph's Home, St. Anthony School, and JPIICS from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Diocese.
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•
256. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
257. Plaintiffs have no adequate remedy at law. 258. Defendants' erroneous interpretation imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under RFRA;
2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Enter a declaratory judgment that Defendants have erroneously interpreted the
scope of the religious employer exemption, and that nonexempt organizations may obtain the benefit of the religious employer exemption if they provide insurance through a group health plan established and maintained by a religious employer. 7. Award Plaintiffs attorneys' and expert fees under 42 U.S.c. § 1988; and
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8. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 30th day of January, 2014.
Pau . Hickey (WY 5-1431 HICKEY & EVANS, L.~~­ 1800 Carey Ave., Suite 700 P.O. Drawer 467 Cheyenne, WY 82003-0467 Telephone: (307) 634-1525 Facsimile: (307) 638-7335 phicke y@hickeyevans.com Noel J. Francisco* D.C. Bar No. 464752 njfrancisco@jonesday.com David T. Raimer* D.C. Bar No. 994558 dtraimer@jonesday.com JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 (202) 879-3939 Counsel for Plaintiffs *Applicationfor Pro Hac Vice Admission Pending
56

 
 IN THE UNITED STATES DISTRICT COURT ^ _
IJ.". M:'ViT..O'! C'jURI FOR THE DISTRICT OF WYOMINQ ;: OT Cr" V/VCK.IflG
-/yri Fiii'f 13 PPl 1 H6

DIOCESE OF CHEYENNE, CATHOLIC CHARITIES OF WYOMING, ST. JOSEPH'S CHILDREN'S HOME,
ST. ANTHONY TRI-PARISH CATHOLIC
SCHOOL,
JOHN PAUL II CATHOLIC SCHOOL AT ST.
MATHEWS, and WYOMING CATHOLIC COLLEGE,

o t i-i"

•1
gas?::r

Case No. 14-CV-21-SWS

Plaintiffs,

vs.
KATHLEEN SEBELIUS, in her official
capacity as Secretary of the U.S. Department of Health and Human Services, et ai.

Defendants.

OPINION AND ORDER DENYING PRELIMINARY INJUNCTION
This matter comes before the Court on Plaintiffs' Motion for Preliminary Injunction (ECF No. 23). Defendants filed an opposition to preliminary injunction (ECF No. 31), and, with the Court's leave, the American Civil Liberties Union (ACLU) filed an amicus curiae brief opposing preliminary injunction (ECF No. 37). The Court heard oral argument on the matter on May 7, 2014. Having considered the parties' briefs, the arguments of counsel, the record herein, and being otherwise fully advised, the Court finds the motion should be denied.
BACKGROUND
This case pits certain provisions of the Patient Protection and Affordable Care Act of 2010 (ACA) against the Religious Freedom Restoration Act of 1993 (RFRA).

A.

The Parties and the Issue

Plaintiffs are several Catholic groups in Wyoming. Defendants are the Secretary of the

United States Department of Health and Human Services^ and various other federal

governmental departments and their heads (collectively, "the Govemmenf'),

Plaintiffs are non-profit religious organizations whose work is guided by Roman Catholic

doctrine, which includes the firm conviction that sexual union must be reserved to married

couples who are open to the creation of life, and any artificial interference with the creation of

life is contrary to church doctrine. (ECF No. 1 at p. 3.) Accordingly, they contend they are

prohibited by Catholic belief from providing, paying for, or facilitating access to products or

services that limit a woman's natural reproductive capacity, including even education or

counseling about such products or services. (ECF No. 24 at p. 8.) Historically, Plaintiffs have

exercised this belief by offering a health insurance plan to their employees that omits the

objectionable products and services from coverage. Plaintiff Diocese of Cheyenne offers a

health plan through a self-insurancetrust established by the Catholic bishops of California.

(ECF No. 24 at p. 6.) Plaintiffs Catholic Charities, St. Joseph's Children's Home, St. Anthony

Tri-Parish Catholic School, and John Paul II Catholic School also offer coverage through the

Diocese's self-insurance plan. {Id.) Plaintiff Wyoming Catholic College offers health coverage

through a self-funded church plan provided bythe Christian Brothers Employee Benefit Trust. ^

' Plaintiffs named Kathleen Sebelius inher official capacity asSecretary ofthe U.S. Department ofHealth and
Human Services as the lead defendant. However, in early April 2014, Sebelius resigned her position, and President Obama nominated Sylvia Burwell to replace her. As of this writing, Burwell is awaiting confirmation vote by the Senate. This change will not substantively affect this lawsuit, though. See Fed. R. Civ. P. 25(d).
^The Government concedes Wyoming Catholic College already iscovered bythe injunction pending appeal issued
by the United States Supreme Court in Little Sisters ofthe Poor v. Sebelius, 134 S. Ct. 1022 (Jan. 24, 2014). (ECF No. 31 at p. 2.) At oral argument, though, Plaintiffs asserted that even if Wyoming Catholic College is covered by the Little Sisters injunctionpending appeal, they seek a preliminary injunction pending the instant litigation because it is unlikely to conclude at the same time as the Little Sisters litigation. Therefore, the Court includes Wyoming Catholic College, though part of a different insurance plan, within this Order.

Page 2 of 19

Plaintiffs take issue with the ACA provisions that require health insurance coverage for

products and services limiting women's natural reproductive capacity, including women's

contraception, sterilization, and related education and counseling. Plaintiffs contend this ACA

requirement violates the RPRA because it forces Plaintiffs to "offer health plans that serve as a
conduit for the delivery ofthe objectionable products and services.^ (ECF No. 24 atp. 12.) This

requirement applies to Plaintiffs beginning July 1, 2014, the date their insurance plan year

begins. Plaintiffs seek a preliminary injunction to prevent the ACA provisions at issue from

applying to them pending the final disposition of this case.

B.

Relevant Provisions of the Affordable Care Act

Under the ACA, "employment-based group health plans covered by the Employee

Retirement Income Security Act (ERISA) must provide certain types of preventive health

services." Hobby Lobby Stores, Inc. v. Sebelius, 723 F.Sd 1114, 1122 (10 Cir. 2013) (en banc),

cert, granted, 134 S. Ct. 678 (2013) (citing 42 U.S.C. § 300gg-13; 29 U.S.C. § 1185d). The

provision of the ACA at issue here "mandates coverage, without cost-sharing by plan

participants or beneficiaries, of'preventive care and screenings' for women 'as provided for in

comprehensive guidelines supported by the Health Resources and Services Administration.'" Id.

(citing 42 U.S.C. § 300gg-l 3(a)(4)). The guidelines that were adopted require health insurance

coverage for, among other preventive care, '"[a]ll Food and Drug Administration approved

contraceptivemethods, sterilization procedures, and patient education and counseling for all

women with reproductive capacity,' as prescribed by a provider." Id. at 1123 (quoting 77 Fed.

Reg. 8725, 8725 (Feb. 15, 2012)). In turn, the Food and Drug Administration (FDA) has

' Plaintiffs complaint also alleges causes ofaction imder the Free Exercise Clause ofthe First Amendment, the Free
Speech Clause of the First Amendment, the Establishment Clause of the First Amendment, and the Administrative Procedures Act. However, Plaintiffs limit their request for preliminary injunction to their RFRA claim. (Pis.' Br. at 9 n.9.)
Page 3 of 19

approved twenty women's contraceptive methods, "ranging from oral contraceptives to surgical
sterilization."^ Id.
The provision exempts "religious employers" from its mandate. Id. at 1123. This
exemption is limited, though, and protects only "the unique relationship between a house of
worship and its employees in ministerial positions." 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013).
Currently, this exemption includes only "churches, synagogues, mosques, and other houses of
worship, and religious orders."^ Id. In this case, the parties agree this exemption applies to
PlaintiffDioceseof Cheyenne, but the Dioceseoperates a self-insured grouphealth plan that
encompasses its employees along with the employees of several other Plaintiffs (all other
Plaintiffs except Wyoming Catholic College). Consequently, Plaintiffs assert the Diocese is a
proper party in interest subject to the ACA's contraceptive coverage requirement.
In addition to the "religious employer" exemption, the provision also includes an
"accommodation," which is central to the instant case. Only eligibleorganizations are provided
the accommodation, which is intended to eliminate (or substantiallyreduce) any burden the
contraceptive coverage requirement imposes upon their religious beliefs and practices. The
parties here agree Plaintiffs (other than the Diocese) are eligible for the accommodation. To take
advantage of the accommodation, an entity must satisfy four requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(l)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of
^The Court will refer to health insurance coverage for these FDA-approved contraceptive methods as "contraceptive
coverage" throughout this Order.
^The Tenth Circuit has noted the definition of"religious employer" might change as a new rule has been proposed
that would enlarge the category. Hobby Lobby, 723 F.3d at 1123-24.
Page 4 of 19

this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the
accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); also 29 C.F.R. § 2590.715-2713A(a); 78 Fed. Reg. 39869, 39873-74

(July 2, 2013). The eligible organization must provide the self-certification form to its insurance

company or, if the organization has a self-insured health plan (as is the case here), to its thirdparty administrator (TPA). 29 C.F.R. § 2590.715-2713A(b). The law then requires the TPA to

provide or arrange payments for the objectionable contraceptiveproducts and services, without

participation, payment, or interference from the eligible organization. Id. Thus, under the ACA, the TPA holds the responsibility to arrange contraceptive coverage for the organization's

employees and covered dependents. The purpose ofthis accommodation is "to route the contraceptive coverage for these organizations througha middleman insurer or insurance plan administrator, allowing the organization to avoid directly providing contraceptive coverage." Hobby Lobby^ 723 F.3d at 1124 (citing78 Fed. Reg. 8458-68 (Feb. 6, 2013)). Significantly, the eligibleentity (the employer) does not bear any director indirect cost associated with providing the contraceptive coverage. 29 C.F.R. § 2590.715-2713A(b)(2); Univ. ofNotre Dame v. Sebelius, 743 F.3d 547, 551 (7th Cir. 2014). Thus, oncethe eligible entitysupplies the selfcertification to its TPA, the eligible entityplays no further role in arranging for, providing, or

paying for contraceptive coverage for its female employees.

C.

Plaintiffs' Position

Plaintiffs offer a health insurance plan to their employees that omits the objectionable

products and services from coverage. {See, e.g., Etienne Aff. 8, 12.) Plaintiff Diocese of

Cheyenne offers a health plan through a self-insurance trust, known as the RETA Trust, which

was established by the Catholicbishops of Califomia in 1999 for the purpose of providing

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medical coverage consistent with Catholic teaching. {Id. at H8.) The Diocese's health plan also covers the other Plaintiffs (except Wyoming Catholic College). {Id. at H11.)
The third-party administrator (TPA) for the health insurance plan is Aetna, Inc. {Id. at H 8.) There has been no evidence presented to suggest Aetna holds any religious objections to providing or arranging for contraceptive coverage.
Under the ACA provisions at issue in this case, Plaintiffs have the following options: (1) ensure that their health insurance plan directly offers contraceptive coverage to their female employees, (2) complete and submit the self-certification form to take advantage of the accommodation, (3) refuse to comply with the ACA's contraceptive coverage requirement and incur substantial, potentially ruinous fines for their non-compliance, or (4) cease offering health insurance to their employees altogether. Plaintiffs argue every option is undesirable because the first two options violate their religious beliefs, the third would prevent them from providing charitable services to those in need, and the fourth would inhibit their ability to attract wellqualified employees while preventing them from providing fully for their current employees.
Specific to this case. Plaintiffs refuse to complete and submit the self-certification form to their TPA. They "believe that submitting the self-certification violates their religious beliefs, because doing so makes them 'complicit in an immoral act.'" (Pis.' Br. at 11-12 (quoting Hobby Lobby, 723 F.3d at 1142).) "Plaintiffs cannot, consistent with their religious beliefs, offer health plans that serve as a conduit for the delivery of the objectionable products and services." (Pis.' Br. at 12.) Succinctly, Plaintiffs argue that completing the self-certification makes them complicit in their female employees having access to the objectionable contraceptive products and services, which Plaintiffs contend violates their sincerely-held religious belief against providing or enabling access to artificial interference with the creation of life.
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APPLICABLE LAW

With this backdrop in place, the Court turns to the applicable legal principles that must be

considered in determining whether a preliminary injunction in Plaintiffs' favor is warranted.

A.

Standard for Preliminary Injunction

For a preliminary injunction to issue, the moving party must prove that four equitable

factors weigh in its favor:

(1) it is substantially likely to succeed on the merits; (2) it will suffer irreparable injury if the injunction is denied; (3) its threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest.

Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)

(citing Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009)).

Where, as here, a plaintiff alleges a deprivation of RFRA rights, the likelihood of success on the merits and irreparable harm prongs merge. Hobby Lobby. 723 F.3d at 1146 ("establishing

a likely RPRA violation satisfies the irreparable harm factor") (citing Kikumura v. Hurley, 242

F.3d 950, 963 (10th Cir. 2001)). Moreover, "because a showing of probable irreparable harm is

the single most important prerequisite for the issuance of a preliminary injunction, the moving

party must first demonstrate that such injury is likely before the other requirements for issuance

of an injunction will be considered." Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,

356 F.3d 1256,1260 (10th Cir. 2004) (quoting Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d

904, 907 (2d Cir. 1990)).

B.

The Religious Freedom Restoration Act (RFRAI

Plaintiffs rely on the RFRA as the basis for their preliminary injunction request. The

RFRA holds the government shall not "substantially burden a person's exercise of religion"

unless the substantial burden "(1) is in furtherance of a compelling governmental interest, and (2)

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is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. §
2000bb-l.
As the first step for proving their need for a preliminary injunction, Plaintiffs must show
a likelihood of success on the merits of their RFRA claim. The Tenth Circuit set forth the test
for a preliminary injunction based on the RPRA in Hobby Lobby: A plaintiff makes a prima facie case under RFRA by showing that the government substantially burdens a sincere religious exercise. Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). The burden then shifts to the government to show that the "compelling interest test is satisfied through application of the challenged law 'to the person'—^the particular claimant whose sincere exercise of religion is being substantially burdened." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 420 (2006) (quoting 42 U.S.C. § 2000bb-l(b)). This burden-shifting approach applies even at the preliminary injunction stage. Id, at
429, 126 S.Ct. 1211.
723 F.3d at 1125-26.
Broken down, the RFRA analysis involves two steps, and each step has two requirements. In the first step, the plaintiff has the burden of showing (1) their asserted religious beliefs are sincere and (2) the law in question substantially burdens the exercise of those sincere religious beliefs. 42 U.S.C. § 2000bb-l(a); see also Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). If a plaintiff carries their burden in step one, the burden shifts to the government to show (1) the challenged law advances a compelling governmental interest, and (2) the law is the least restrictive means of furthering that compelling interest. 42 U.S.C. § 2000bb1(b); see also Hobby Lobby, 723 F.3d at 1143. To successfully obtain relief from the offensive provision, a plaintiff must carry their burden and the government must fail to carry its burden.
ANALYSIS
The Court begins the preliminary injunction analysis by keeping in mind that a preliminary injunction is an "extraordinary equitable remedy." Fed. Lands Legal Consortium v.
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United States, 195 F.3d 1190,1194 (10th Cir. 1999).

A.

Likelihood of Success on the Merits and Irreparable Injury

The likelihood of success on the merits factor (which merges with the irreparable harm

factor in RFRA claims such as this) requires the Court to weigh the parties' assertions in light of

the RFRA test.

1. RFRA Step One: Substantial Burden on a Sincere Exercise of Religion The first question to address is whether the ACA's contraceptive coverage requirement

substantially burdens Plaintiffs' sincere religious exercise. See 42 U.S.C. § 2000bb-l(a). Under

this first step, a law substantially burdens a claimant's exercise of religion if it:

(1) "requires participation in an activity prohibited by a sincerely held religious belief," (2) "prevents participation in conduct motivated by a sincerely held religious belief," or (3) "places substantial pressure on an adherent... to engage in conduct contrary to a sincerely held religious belief."

Hobby Lobby, 723 F.3d at 1138

Abdulhaseeb v. Calbone, 600 F.3d 1301,1315 (10th

Cir. 2010)). The parties, and the Court, agree the third prong, related to "substantial pressure,"

applies to this case. See id. at 1138-40. In considering substantial pressure, the Court's "only

task is to determine whether the claimant's belief is sincere, and if so, whether the government

has applied substantial pressure on the claimant to violate that belief." Hobby Lobby, 723 F.3d at

1137. Whether substantial pressure exists, though, is for this Court to determine, not for

Plaintiffs to pronounce. "[S]ubstantiality—like compelling governmental interest—is for the

court to decide." Univ. ofNotre Dame v. Sebelius, 743 F.3d 547, 558 (7th Cir. 2014) (citing Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011); see also Yellowbear v. Lampert, 741

F.3d 48, 56 (10th Cir. 2014) (stating that "a reasonable finder of fact could conclude the prison has substantially burdened Mr. Yellowbear's religious exercise"); Wisdom Import Sales Co.,

L.L.C. V. Labatt Brewing Co., Ltd., 339 F.3d 101, 108 (2d Cir. 2003) (noting the district court is

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the fact finder when considering a request for preliminary injunction). The Government has not disputed that Plaintiffs' asserted beliefs are sincere and religious
in nature. See United States v. Meyers, 95 F.3d 1475,1482 (10th Cir. 1996) (stating a claimant must establish his or her beliefs to be both religious, rather than philosophical and held sincerely). The Court finds for purposes of this preliminary injunction analysis that Plaintiffs hold a sincere religious belief that the contraceptive products and services at issue are immoral and Catholic doctrine prevents them from providing, paying for, or facilitating access to such objectionable products and services.
The real meat of Plaintiffs' preliminary injunction request hinges on whether the ACA's requirement that Plaintiffs complete and submit the self-certification form substantially pressures Plaintiffs to violate their sincerely-held religious beliefs.
1.1 The Form Designates TPA as Administrator of Contraceptive Coverage Plaintiffs' sharpest criticism is that completing and submitting the self-certification violates their religious beliefs because it designates the TPA (Aetna) to be the plan and claims administrator for contraceptive coverage. (Pis.' Br. at 12 (quoting 78 Fed. Reg. at 39,879).) Indeed, the self-certification "shall be treated as a designation of the third party administrator as the plan administrator... for any contraceptive services." 29 C.F.R. § 2510.3-16. Plaintiffs argue, "In other words, under the accommodation. Plaintiffs are required to amend the documents governing their health plans to designate a third party to provide the objectionable coverage." (Pis.' Br. at 12.) Plaintiffs contend the very act of completing the self-certification form authorizes and even obligates the TPA to provide the objectionable contraceptive coverage. Plaintiffs are mistaken, though. The self-certification does not authorize or obligate the TPA to provide the objectionable contraceptive coverage; the ACA authorizes and obligates the
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TPA to arrange such coverage. As Judge Posner recently explained in the similar case of Univ.
ofNotre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014),
Notre Dame treats this regulation as making its mailing the certification form to its third-party administrator the cause of the provision of contraceptive services to its employees, in violation of its religious beliefs. Not so. Since there is now a federal right, unquestioned by Notre Dame, to female contraceptive services, the effect of the university's exercise of its religious exemption is to throw the entire burden of administration of the right on the entities (Aetna and Meritain) that provide health services to Notre Dame's students and staff. The university is permitted to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, conscripts) substitute providers, and naturally they are the providers who are already providing health services to the university personnel.
Id. at 553.
It is not Plaintiffs' self-certification that authorizes or obligates the TPA to ensure the
objectionable contraceptive coverage; it is the ACA that does so. "Federal law, not the religious
organization's signing and mailing the form, requires health-care insurers, along with third-party
administrators of self-insured health plans, to cover contraceptive services." Id. at 554. The
accommodation allows Plaintiffs to place the ACA-imposed burden of providing contraceptive
coverage on the TPA, who in this case has no objections (religious or otherwise) to providing
such coverage. The ACA does not force Plaintiffs to offer a health insurance plan with
objectionable contraceptive coverage; it forces the TPA (a non-religious third party) to arrange
and offer such coverage. The self-certification "enables nothing. The sole 'enabler' is the
federal statute that [Plaintiffs] ha[ve] been allowed to opt out of." Id. at 557. Completing and
submitting the form to the TPA "simply shifts the financial burden from [Plaintiffs] to the
government." Id. at 555.
Consequently, Plaintiffs' argument that completing the self-certification form requires
them to enable access to objectionable contraceptive products and services is inaccurate and
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unconvincing. It does not demonstrate a substantial burden upon their religious exercise. The
burden is placed on the TPA to comply with the ACA.
1.2 Complicity in an Immoral Act
Plaintiffs also argue that completingthe self-certification will violate their religious
beliefs because it will make them "complicit in a grave moral wrong" as the end result will be
objectionable contraceptive coverage for their female employees. (Pis.' Br. at 15 (quoting
Gilardi v. U.S. Dep't ofHealth & Human Servs., 733 F.3d 1208, 1218 (D.C. Cir. 2013).) The
accommodation, though, permits Plaintiffs to refuse to be complicit. By completing the self-
certification,Plaintiffs inform the TPA they refuse to provide contraceptivecoverage, and
federal law in turn forces the third party to take up the ACA-imposed contraceptive coverage
requirement. While Plaintiffs hold very strong religious views that the TPA should not provide
(or be forced by federal law to provide) contraceptive coverage, the TPA's provision of such
coverage cannot be said to be a substantial burden on Plaintiffs religious exercise. The
conscientious objector example in Notre Dame is demonstrative:
Consider this further example illustrative of our doubts. Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who's been called up tells the selective service system that he's a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he's told: "you know this means we'll have to draft someone in place of you"— and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially bxirden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to "trigger" the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement? That seems a fantastic suggestion.
Notre Dame, 743 F.3d at 556. The same reasoning applies here. Through the ACA's
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accommodation, Plaintiffshave the right to be exempted from participating in, providing, or paying for the costs associatedwith the objectionable contraceptive coveragebased on their sincere religious beliefs, but they have no right to prevent a third party (who does not hold those same religious objections) from meeting the ACA's requirements. See Michigan Catholic Conference v. Sebelius, —F.Supp.2d ™, 2013 WL 6838707, at *7 (W.D.Mich. 2013) ("RFRA does not allow a plaintiff to restrain the behavior of a third party that conflicts with plaintiffs beliefs"). Although the TPA's activitiesmay deeply insult Plaintiffs' genuine religiousbeliefs, the TPA's activities in providing contraceptive coverage cannot be said to hamper Plaintiffs' religious exercise. See Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (finding that collection of the claimant's DNA may offend the claimant's religious beliefs but it does not interfere with his religious exercise) (citing Thomas v. Review Bd. ofIndiana Emp't Sec. Div.,
450 U.S. 707,718(1981)). Something must be said of Plaintiffs' claim that the ACA forces them to contract with a
TPA "that is authorized or obligated to provide the objectionable coverage to Plaintiffs' employees." (ECF No. 24 at p. 11 (citing 26 C.F.R. § 54.9815-2713A(b)(2); 78 Fed. Reg. at 39,880).) First, Plaintiffs are mistaken. Nothing in the provisions cited "force" an eligible
organization to contract with a third party who will provide contraceptive coverage.^ Second, the
evidence shows Plaintiffs here have contracted with the same TPA (Aetna) since before being subject to the ACA's requirements. {See, e.g., Etienne Aff. 8-9.) This suggests Plaintiffs are far less concerned with their contracting partner than with whether that partner provides contraceptive coverage to Plaintiffs' female employees.
^The relevant portions of these provisions explain that a TPA who receives a self-certification form must decide
whether "to enter into or remain in a contractual relationship with the eligible organization." 26 C.F.R. § 54.9815.2713A(b)(2); see also 78 Fed. Reg. 39870, 39880 (July 2, 2013) (explaining that a TPA receiving a selfcertification from an eligible organization "and that agrees to enter into or remain in a contractual relationship with the eligible organization" must then arrange for contraceptive coverage).
Page 13 of 19

The accommodation permits Plaintiffs to refuse to be complicit in providing contraceptive coverage to their female employees; it does not force them to be complicit. It permits them to object to such coverage and refuse to provide it themselves. Allowing Plaintiffs to refuse to participate in providing contraceptive coverage does not substantially burden their religious exercise. To accept Plaintiffs' argument under these facts would render the RFRA's substantial burden test meaningless.
13 Completing the Accommodation Form Does Not Materially Change Conduct The self-certification form itself (EBSA Form 700) is two pages long and demands only very basic information, including the eligible organization's name, the representative's name and contact information, and the representative's signature. It requires little different than what Plaintiffs were already doing. Prior to the ACA, Plaintiffs provided a health insurance plan to their employees and informed the plan's TPA (which was Aetna before as well as after they became subject to the ACA) of their refusal to provide contraceptive coverage. Under the ACA, Plaintiffs do the same thing, only on the designated form. See Thomas v. Review Bd. ofIndiana Emp't Sec. Div., 450 U.S. 707, 718 (1981) (substantial burden upon religion exists where the government puts substantial pressure on the claimant to modify his behavior and to violate his beliefs). Thus, Plaintiffs are not required to "modify [their] behavior." Id. But to be fair. Plaintiffs have not argued the form is too demanding. And they do not take issue with possessing the right to refuse to provide contraceptive coverage. Instead, Plaintiffs argument, at its core, is essentially that their objection to the contraceptive coverage requirement should act to prevent third parties from providing, arranging for, or paying for such coverage. While the wisdom of the accommodation and its procedure may be fairly debated (likely for some time to come), the accommodation's failure to prevent the TPA from providing
Page 14 of 19

the objectionable contraceptive coverage to Plaintiffs' female employees does not render it a substantial burden on Plaintiffs' religious exercise.
Again, the question of substantiality is determined by the Court. Notre Dame, 743 F.3d at 558; see also Hobby Lobby, 723 F.3d at 1141 (finding a substantial burden was established "as a matter of law"). The ACA does not apply substantial pressure on Plaintiffs' to modify their behavior and violate their beliefs. Instead, the accommodation allows them to continue their pre existing behavior of informing the TPA they refuse to provide contraceptive coverage based on their religious beliefs. The ACA then requires the TPA to arrange for the contraceptive coverage. Any burden the ACA places upon Plaintiffs to take advantage of the accommodation is miniscule and far from substantial. See Kaemmerling, 553 F.3d at 678 ("An inconsequential or de minimis burden on religious practice does not rise to this level."). Indeed, the initial draft of the RFRA prohibited the government from imposing any burden on religious exercise, but Congress added "substantially" to clarify that "the compelling interest required by the Religious Freedom Act applies only where there is a substantial burden placed on the individual free exercise ofreligion," and the RFRA "does not require the Government to justify every action that has some effect on religious exercise." 139 Cong. Rec. S14350-01 (daily ed. Oct. 26,1993) (statement of Sen. Hatch). "Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix *substantial' to 'burden.'" Notre Dame, 743 F.3d at 558. Requiring Plaintiffs to do that which they've always done, only now on a designated form, does not amount to a substantial burden on religious exercise.
i.4 Hobby Lobby Does Not Control This Case Plaintiffs rely heavily on the Tenth Circuit's opinion in Hobby Lobby, arguing their dilemma "is the exact choice, and the exact penalties, at issue in Hobby Lobby" (Pis.' Br. at 14.)
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It is not. Hobby Lobby does not control this disposition. Despite Plaintiffs' assertions to the contrary (see id. at 15), it is material that the for-profit plaintiffs in Hobby Lobby were required under the ACA to directly provide contraceptive coverage to their female employees. See Hobby Lobby, 723 F.3d at 1120-21,1125; id. at 1152 (Gorsuch, J., concurring) ("No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg."). The plaintiffs in Hobby Lobby were not eligible for the ACA's accommodation available to these Plaintiffs. Id. at 1124. Moreover, without the ability to request the accommodation, the plaintiffs in Hobby Lobby either directly paid for the objectionable contraceptive coverage or faced millions of dollars in fines. Quite simply, the Tenth Circuit in Hobby Lobby did not address whether the ACA's accommodation creates a substantial burden on religious exercise because the accommodation was not at issue in that case. While Hobby Lobby presents an instructive framework for RFRA claims, the Tenth Circuit's substantial-burden analysis in that case does not demand injunctive relief here.
It is significant in this case that Plaintiffs exercise their sincerely-held religious beliefs by declining to comply with the ACA's accommodation requirements. (See Pis.' Br. at 15.) Plaintiffs have drawn a line at completing and submitting the self-certification form. It is certainly not for the Court to say whether that line is "acceptable, logical, consistent, or comprehensible." Thomas, 450 U.S. at 714. "Courts are not arbiters of scriptural interpretation." Id. at 716. However, it is for the Court to say whether the burden placed on Plaintiffs' religion by the ACA is substantial under the RFRA. "[W]e reject the notion ... that a plaintiff shows a burden to be substantial simply by claiming that it is." Conestoga WoodSpecialties Corp. v. Sebelius, 917 F. Supp. 2d 394,413 (E.D. Pa. 2013) affd sub nom. Conestoga Wood Specialties
Page 16 of 19

Corp. V. Sec'y of U.S. Dep't ofHealth & Human Servs., 724 F.3d 377 (3d Cir. 2013), cert, granted^ 134 S. Ct, 678 (2013). Here, Plaintiffs have drawn their line in the sand on the
insubstantial side ofthe substantial-burden test. While it is unfortunate that federal law and
every citizen's religious beliefs fail to align in every instance, "[n]ot all burdens on religion are unconstitutional." United States v. Lee^ 455 U.S. 252, 257 (1982). The burden placed on Plaintiffs' religious exercise by the ACA to complete a self-certification form and submit it to their TPA to avoid the contraceptive coverage requirement is not substantial. It is undoubtedly a burden, but a rather de minimis one at that. The ACA's accommodation permits Plaintiffs to object to and refuse to provide the objectionable contraceptive coverage to their employees; it does not prohibit the provision of such coverage to those same employees by another party (no matter how much Plaintiffs may wish such to be the case).
The ACA's requirement that Plaintiffs complete and submit the self-certification form to qualify for the accommodation (and avoid paying for or providing contraceptive coverage to their female employees) does not violate the RFRA because it does not substantially burden Plaintiffs' religious practice. Any burden beyond a de minimis one is placed instead on the TPA (here, Aetna). Consequently, Plaintiffs have not demonstrated a likelihood of success on the merits of their RFRA claim. Further, Plaintiffs have not shown a likely threat of irreparable harm (which merges with the likelihood of success prong in RFRA claims).
2. RFRA Step Two: Compelling Interest / Least Restrictive Means Finding no substantial burden, the Court does not reach the second part of the RFRA analysis—^whether the Government can satisfy the compelling interest test. However, were the Court to reach that step of the RFRA analysis, it would agree with the parties that the Tenth Circuit's analysis of that question in Hobby Lobby would be binding. {See Pis.' Br. at 16-17;
Page 17 of 19

Defs.* Br. at 16.) In both Hobby Lobby and here, the Government advanced the same two governmental interests: public health and gender equality. HobbyLobby, 723 F.3d at 1143; (Defs.' Br. at 16). TheTenth Circuit held these governmental interests were not compelling and the ACA was not the least restrictivemeans available for furthering those interests. 723 F.3d at 1143-44. The same analysis and result would apply here, if a substantial burden existed to

trigger the compelling interest test.

B. Remaining Preliminary Injunction Factors A party seeking a preliminary injunction must first demonstrate irreparable injury is
likely before the other preliminary injunction factors will be considered by the Court. Dominion

Video Satellite, 356 F.3d at 1260. Here, Plaintiffs have not demonstrated their likely success on the merits (which merges with the irreparable harm prong in this RFRA case). Consequently, the

Court will not consider the remaining equitable factors for a preliminary injunction. "[I]n First

amendment cases, the likelihood of success on the merits will often be the determinative factor."

Hobby Lobby, 723 F.3d at 1145 (quoting

ofIllinois v. Alvarez, 679 F.3d 583, 589 (7th

Cir.), cert, denied, —U.S. — 133 S. Ct. 651 (2012)).^ The Court finds such tobe the case here.

CONCLUSION AND ORDER

Plaintiffs have not established a likelihood of success on the merits or a likelihood of

irreparable injury on their RFRA claim because they have not shown the ACA's accommodation

to be a substantial burden upon their religious exercise. A preliminary injunction is an extraordinary remedy that should not be issued unless the moving party's right to relief is "clear

and unequivocal." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). Here, Plaintiffs

have failed to show their clear and unequivocal right to preliminary injunctive relief.

' To be clear, RFRA violations arenotconstitutional violations, butCongress has given theRFRA similar
importance by subjecting all subsequent congressional enactments to strict scrutiny. Hobby Lobby, 723 F.3d at 1146 (noting that Tenth Circuit case law analogizes the RFRA, a "super statute," to a constitutional right).
Page 18 of 19

IT IS THEREFORE ORDERED that Plaintiffs' Motion for Preliminary Injunction
(ECF No. 23) is hereby DENIED. DATED this A5 day of May, 2014.
^ Skavdahl
United States District Judge
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 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
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§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
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Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
4of10

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

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

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

f.

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

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

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

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

a nd

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

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

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
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42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
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11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
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of!O

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

EXHIBIT A

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

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

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

EXHIBITB

E XHIBIT B

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

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

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

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

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

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

2

 
 Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 1 of 11
U.S. District Court District of Wyoming (Cheyenne) CIVIL DOCKET FOR CASE #: 2:14−cv−00021−SWS

TERMED

Diocese of Cheyenne et al v. US Department of Health and Human Services Secretary et al Assigned to: Honorable Scott W Skavdahl Referred to: Honorable Kelly H Rankin Case in other court: 10th Circuit, 14−08040 Cause: 42:2003 Job Discrimination
Plaintiff

Date Filed: 01/30/2014 Date Terminated: 11/08/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Diocese of Cheyenne

represented by David T Raimer JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 202/879−3939 Email: dtraimer@jonesday.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 202/879−3939 Email: esdreiband@jonesday.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 202/879−3939 TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey HICKEY & EVANS 1800 Carey Avenue, Suite 700 P O Box 467 Cheyenne, WY 82003−0467 307/634−1525 Fax: 307/638−7335 Email: phickey@hickeyevans.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Catholic Charities of Wyoming

represented by David T Raimer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 2 of 11

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco (See above for address) TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Saint Joseph's Children's Home

represented by David T Raimer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco (See above for address) TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff St Anthony Tri−Parish Catholic School

represented by David T Raimer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco (See above for address) TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey (See above for address)

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 3 of 11

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Paul II Catholic School at St. Matthews TERMINATED: 07/14/2014

represented by David T Raimer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco (See above for address) TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Wyoming Catholic College

represented by David T Raimer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Dreiband (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Noel J Francisco (See above for address) TERMINATED: 10/23/2017 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul J Hickey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
US Department of Health and Human Services Secretary in her official capacity also known as Kathleen Sebelius

represented by C Levi Martin UNITED STATES ATTORNEYS OFFICE PO Box 668 Cheyenne, WY 82003−0668 307/772−2124

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 4 of 11

Fax: 307/772−2123 Email: Christopher.Martin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman UNITED STATES DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue NW Suite 7111 Washington, DC 20530 202/532−4252 Fax: 202/616−8470 Email: Julie.Saltman@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
US Department of Labor Secretary in his official capacity also known as Thomas Perez

represented by C Levi Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
US Department of Treasury Secretary in his official capacity also known as Jacob J Lew

represented by C Levi Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant
US Department of Health and Human Services

represented by C Levi Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant US Department of Labor

represented by C Levi Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 5 of 11

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant US Department of the Treasury

represented by C Levi Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Saltman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Brigitte Amiri AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212/549−2633 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street 6th Floor Washington, DC 20005 202/675−2330 Email: dmach@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Horvath AMERICAN CIVIL LIBERTIES UNION Wyoming Chapter P O Box 20706 Cheyenne, WY 82003 307/637−4565 Fax: 307/637−4565 Email: jhorvath@aclu.org TERMINATED: 10/27/2017 LEAD ATTORNEY

Jennifer Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212/549−2633 Email: jlee@aclu.org TERMINATED: 10/27/2017 LEAD ATTORNEY PRO HAC VICE

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 6 of 11

Date Filed 01/30/2014 01/30/2014 01/30/2014 01/30/2014 01/30/2014 01/30/2014
01/30/2014
01/31/2014 01/31/2014 02/03/2014
02/03/2014
02/04/2014

# Docket Text
1 COMPLAINT (summonses issued) (Filing fee $400 paid − receipt #CHY018827) filed by Wyoming Catholic College, Saint Joseph's Children's Home, Catholic Charities of Wyoming, Diocese of Cheyenne, St Anthony Tri−Parish Catholic School, John Paul II Catholic School at St. Matthews. (Attachments: # 1 Civil Cover Sheet) (Court Staff, sal) (Entered: 01/30/2014)
2 NOTICE of Attorney Appearance by Paul J Hickey on behalf of Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Court Staff, sal) (Entered: 01/30/2014)
3 Praecipe for Summons filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College, 8 issued. (Court Staff, sal) (Entered: 01/30/2014)
4 NOTICE of complexity by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College; this case is non−complex. (Court Staff, sal) (Entered: 01/30/2014)
5 CORPORATE DISCLOSURE filed by Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Court Staff, sal) (Entered: 01/30/2014)
6 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Noel J. Francisco to appear pro hac vice (check tendered − receipt #18828) filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Proposed Order)(Court Staff, sal) (Entered: 01/30/2014)
7 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for David T. Raimer to appear pro hac vice (check tendered − recipt #18828) filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Proposed Order)(Court Staff, sal) (Entered: 01/30/2014)
8 ORDER Denying 6 Motion for Admission Pro Hac Vice of Noel J. Francisco by the Honorable Kelly H. Rankin (Court Staff, szf) (Entered: 01/31/2014)
9 ORDER Denying 7 Motion for Admission Pro Hac Vice of David T. Raimer the Honorable Kelly H. Rankin (Court Staff, szf) (Entered: 01/31/2014)
10 MOTION REFERRED TO Judge Kelly H Rankin. Amended MOTION for Noel J. Francisco to appear pro hac vice; Check tendered; filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Affidavit of Noel J. Francisco, # 2 Proposed Order)(Hickey, Paul) (Entered: 02/03/2014)
11 MOTION REFERRED TO Judge Kelly H Rankin. Amended MOTION for David T. Raimer to appear pro hac vice; Check tendered; filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Affidavit of David T. Raimer, # 2 Proposed Order)(Hickey, Paul) (Entered: 02/03/2014)
12 ORDER by the Honorable Kelly H. Rankin granting 10 Motion to appear pro hac vice admitting Noel J. Francisco for Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St. Anthony Tri−Parish Catholic School, US Department of Health and Human Services, and Wyoming Catholic College (Court Staff, szf) (Entered: 02/04/2014)

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 7 of 11

02/04/2014
02/14/2014 02/14/2014 02/14/2014 02/14/2014 02/14/2014 02/14/2014 02/14/2014 02/14/2014 02/19/2014
02/25/2014 03/19/2014 03/19/2014
03/20/2014 03/21/2014 03/27/2014

13 ORDER by the Honorable Kelly H. Rankin granting 11 Motion to appear pro hac vice admitting David T. Raimer for Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St. Anthony Tri−Parish Catholic School, US Department of Health and Human Services, and Wyoming Catholic College (Court Staff, szf) (Entered: 02/04/2014)
14 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Health and Human Services served on 1/31/2014, answer due on 4/1/2014. Served through the US Dept of Health And Human Services. (Hickey, Paul) (Entered: 02/14/2014)
15 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Health and Human Services Secretary served on 1/31/2014, answer due on 4/1/2014. Served through the Secretary Kathleen Sebelius. (Hickey, Paul) (Entered: 02/14/2014)
16 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of the Treasury served on 1/31/2014, answer due on 4/1/2014. Served through the US Department of the Treasury. (Hickey, Paul) (Entered: 02/14/2014)
17 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Treasury Secretary served on 1/31/2014, answer due on 4/1/2014. Served through the Secretary Jacob J. Lew. (Hickey, Paul) (Entered: 02/14/2014)
18 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Labor Secretary served on 1/31/2014, answer due on 4/1/2014. Served through the Secretary Thomas E. Perez. (Hickey, Paul) (Entered: 02/14/2014)
19 CERTIFICATE OF SERVICE re 1 Complaint, 3 Praecipe, by Plaintiff Diocese of Cheyenne (Hickey, Paul) (Entered: 02/14/2014)
20 CERTIFICATE OF SERVICE re 1 Complaint, 3 Praecipe, by Plaintiff Diocese of Cheyenne (Hickey, Paul) (Entered: 02/14/2014)
21 CERTIFICATE OF SERVICE re 1 Complaint, 3 Praecipe, by Plaintiff Diocese of Cheyenne (Hickey, Paul) (Entered: 02/14/2014)
22 SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Labor served on 2/14/2014, answer due on 4/15/2014, SUMMONS Returned Executed by Diocese of Cheyenne. US Department of Labor served on 2/14/2014, answer due on 4/15/2014. Served through the US Department of Labor. (Hickey, Paul) Modified Answer due date on 2/25/2014 (Court Staff, sds). (Entered: 02/19/2014)
Set/Reset Deadlines: US Department of Labor answer due 4/15/2014. (sixty days for government entity) (Court Staff, sds) (Entered: 02/25/2014)
23 MOTION for Preliminary Injunction filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School. (Attachments: # 1 Proposed Order Proposed Order)(Hickey, Paul) (Entered: 03/19/2014)
24 BRIEF re 23 Motion for Preliminary Injunction, filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Hickey, Paul) (Entered: 03/19/2014)
25 NOTICE of Hearing on 23 MOTION for Preliminary Injunction Motion Hearing set for 5/7/2014 01:00 PM in Casper Courtroom No. 2 (Room No. 204) before Honorable Scott W Skavdahl. (Court Staff, sds) Modified on 3/21/2014 (Court Staff, sds). (Entered: 03/20/2014)
NOTICE of Hearing on 23 MOTION for Preliminary Injunction Motion Hearing set for 5/7/2014 01:00 PM in Casper Courtroom No. 2 (Room No. 204) before Honorable Scott W Skavdahl. (Court Staff, sds) (Entered: 03/21/2014)
26 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Julie Saltman to appear pro hac vice; Check not tendered; filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Attachments: # 1 Declaration of

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 8 of 11

03/28/2014 03/28/2014
04/04/2014
04/04/2014 04/07/2014 04/07/2014
04/14/2014 04/14/2014 04/14/2014 04/14/2014 04/14/2014 04/15/2014 04/16/2014 04/28/2014

Julie Saltman, # 2 Proposed Order)(Martin, C) (Entered: 03/27/2014)
27 NOTICE of Attorney Appearance by C Levi Martin on behalf of US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury (Martin, C) (Entered: 03/28/2014)
28 ORDER granting 26 Motion to Appear Pro Hac Vice admitting Julie Saltman by the Honorable Kelly H. Rankin. Attorney Julie Saltman added as Pro Hac counsel for for US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary and US Department of the Treasury (Court Staff, szf) (Entered: 03/28/2014)
29 MOTION for Extension of Time (Dispositive) Unopposed filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 04/04/2014)
29 MOTION for Extension of Time (Dispositive) Unopposed REFERRED to Magistrate Judge. (Court Staff, sds) (Entered: 04/04/2014)
30 ORDER by the Honorable Kelly H. Rankin GRANTING 29 Unopposed Motion for Extension of Time. Defendants must answer or otherwise respond to Plaintiffs' complaint on or before 5/22/14. (Court Staff, ssc) (Entered: 04/07/2014)
31 MEMORANDUM in Opposition to 23 MOTION for Preliminary Injunction filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Saltman, Julie) (Entered: 04/07/2014)
32 First MOTION to Appoint Counsel Entry of Appearance filed by Amicus American Civil Liberties Union. (Horvath, Jennifer) (Entered: 04/14/2014)
33 MOTION REFERRED TO Judge Kelly H Rankin. First MOTION for Jennifer Lee, Brigitte Amiri, Daniel Mach to appear pro hac vice; Check not tendered; filed by Amicus American Civil Liberties Union. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Proposed Order)(Horvath, Jennifer) (Entered: 04/14/2014)
34 MOTION REFERRED TO Judge Kelly H Rankin. First MOTION for Leave to File Reply/Brief/Supplement (Non−Dispositive) Motion for Leave to File Amici Curiae Brief filed by Amicus American Civil Liberties Union. (Attachments: # 1 Exhibit Brief of Amici Curiae, # 2 Proposed Order)(Horvath, Jennifer) (Entered: 04/14/2014)
FINANCIAL ENTRY, re 33 MOTION for Jennifer Lee, Brigitte Amiri, Daniel Mach to appear pro hac vice. $300; Receipt no. CAS0001243 (Court Staff, sdf) (Entered: 04/14/2014)
35 ORDER by the Honorable Kelly H. Rankin granting 33 Motion to appear pro hac vice admitting Jennifer Lee, Brigitte Amiri, Daniel Mach for American Civil Liberties Union (Court Staff, szf) Modified on 4/16/2014 (Court Staff, sds). (Entered: 04/14/2014)
36 ORDER by the Honorable Kelly H. Rankin GRANTING 34 Motion to File Amicus Curiae brief. ACLU may file and serve its Amicus Curiae brief within seven days of the entry of this Order, on or before 4/22/14. (Court Staff, ssc) (Entered: 04/15/2014)
37 First TRIAL BRIEF Amici Curiae Brief by Amicus American Civil Liberties Union. (Horvath, Jennifer) (Entered: 04/16/2014)
38 NOTICE by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College re 23 MOTION for Preliminary Injunction (Attachments: # 1 Supplement Attachment, # 2 Supplement Attachment, # 3 Supplement Attachment) (Hickey, Paul) (Entered: 04/28/2014)

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 9 of 11

04/29/2014
04/29/2014 05/07/2014 05/13/2014 05/15/2014
05/15/2014
05/15/2014 05/19/2014 05/19/2014
05/21/2014 05/21/2014 05/22/2014
05/23/2014

39 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Eric S. Dreiband to appear pro hac vice; Check not tendered; filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Hickey, Paul) (Entered: 04/29/2014)
40 ORDER Granting 39 Motion to appear pro hac vice admitting Eric S. Dreiband for all Plaintiffs by the Honorable Kelly H. Rankin.(Court Staff, szf) (Entered: 04/29/2014)
41 MINUTES for proceedings held before Honorable Scott W Skavdahl: Motion Hearing held on 5/7/2014 as to Plaintiff's 23 Motion for Preliminary Injunction; the Court heard argument by all Counsel and took the matter under advisement. (Court Reporter Richard Mattson.) (Court Staff, stbd) (Entered: 05/07/2014)
42 OPINION & ORDER by the Honorable Scott W Skavdahl denying 23 Motion for Preliminary Injunction. (Court Staff, sds) (Entered: 05/13/2014)
43 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Order Granting Injunction Pending Appeal filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Attachments: # 1 Proposed Order)(Hickey, Paul) Modified on 5/16/2014 (Court Staff, szf). (Entered: 05/15/2014)
44 NOTICE OF INTERLOCUTORY APPEAL of 42 OPINION & ORDER by the Honorable Scott W Skavdahl denying 23 Motion for Preliminary Injunction filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. Filing fee $ 505, receipt number CHY19487. (Court Staff, sds) Modified on 5/16/2014 (Court Staff, sds). (Entered: 05/16/2014)
Motions No Longer Referred: 43 MOTION for Order Granting Injunction Pending Appeal (Court Staff, szf) (Entered: 05/16/2014)
45 Preliminary Record of appeal sent to USCA and counsel re 44 Notice of Interlocutory Appeal, The procedures and appeals packet may be obtained from our website at www.wyd.uscourts.gov (Attachments: # 1 Preliminary ROA including NOA) (Court Staff, sds) (Entered: 05/19/2014)
46 Appeal Number 14−8040 received from USCA for 44 Notice of Interlocutory Appeal, filed by Wyoming Catholic College, Saint Joseph's Children's Home, Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, St Anthony Tri−Parish Catholic School. Plaintiffs' Notice of appearance, docketing statement and transcript order form due 06/02/2014; Defendants' Notice of appearance due on 06/02/2014. (Court Staff, sds) (Entered: 05/20/2014)
47 OPPOSITION to 43 Motion for Order, filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Saltman, Julie) (Entered: 05/21/2014)
48 REPLY to 47 Opposition, filed by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College. (Hickey, Paul) (Entered: 05/21/2014)
49 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Order Tolling Deadline to Answer or Otherwise Respond to Complaint (Unopposed) filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 05/22/2014)
50 ORDER by the Honorable Kelly H. Rankin GRANTING 49 Unopposed Motion for Order. Defendants' deadline to answer or otherwise respond to Plaintiffs' complaint is tolled pending the resolution of Plaintiffs' motion for an injunction pending appeal.

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 10 of 11

05/23/2014 05/30/2014 05/30/2014 06/02/2014 06/02/2014 06/17/2014
06/17/2014
06/24/2014 07/09/2014 07/09/2014 07/14/2014 10/17/2017 10/18/2017

(Court Staff, ssc) (Entered: 05/23/2014)
51 ORDER by the Honorable Scott W Skavdahl denying 43 Motion for Injunction Pending Appeal. (Court Staff, sds) (Entered: 05/23/2014)
52 TRANSCRIPT REQUEST (Transcripts Needed) by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College for proceedings held on May 7, 2014 before Judge Scott Skavdahl, re 44 Notice of Interlocutory Appeal,. (Hickey, Paul) (Entered: 05/30/2014)
55 APPEAL ORDER from USCA Transcript Order Form due from Court Reporter 6/13/2014. (Court Staff, sds) Modified on 6/2/2014 (Court Staff, sds). (Entered: 06/02/2014)
53 MOTION to stay case pending appeal (Unopposed) filed by Defendants US Department of Health and Human Services, US Department of Health and Human Services Secretary, US Department of Labor, US Department of Labor Secretary, US Department of Treasury Secretary, US Department of the Treasury. (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 06/02/2014)
54 ORDER by the Honorable Scott W Skavdahl granting 53 Motion to Stay Case Pending Appeal. (Court Staff, sds) (Entered: 06/02/2014)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing on 23 MOTION for Preliminary Injunction held on 5/7/2014 before Judge Scott W. Skavdahl re 44 Notice of Interlocutory Appeal,. To purchase a copy of this transcript, please contact Court Reporter Richard Mattson, mattsonrlm@yahoo.com. A party must file a Notice of Intent to Request Redaction within 7 business days. If a party fails to request redaction, the unredacted transcript attached to this entry will be made available electronically without redaction. Notice of Intent to Redact due 6/24/2014. Notice of Redaction Request due 7/8/2014. Redacted Transcript Deadline set for 7/18/2014. Release of Transcript Restriction set for 9/15/2014. (Court Staff, sds) (Entered: 06/17/2014)
57 (TEXT−ONLY) APPEAL MINUTE ORDER from USCA as to 44 Notice of Interlocutory Appeal, filed by Wyoming Catholic College, Saint Joseph's Children's Home, Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, St Anthony Tri−Parish Catholic School. Notice due that record is complete by 07/14/2014 for Stephan Harris, Clerk of Court. (Text Only − No Attachment) [14−8040] Record on appeal/Notice due 7/14/2014 (Court Staff, sdf) (Entered: 06/17/2014)
58 Transcript Letter transmitted to USCA re 44 Notice of Interlocutory Appeal. All transcripts that have been ordered for this appeal are now filed with the United States District Court, District of Wyoming. For purposes of appeal, the record is now ready. (Court Staff, sds) (Entered: 06/24/2014)
59 MOTION REFERRED TO Judge Kelly H Rankin. MOTION for Order To Dismiss Plaintiff John Paul II Catholic School At St. Matthews filed by Plaintiff John Paul II Catholic School at St. Matthews. (Attachments: # 1 Proposed Order)(Hickey, Paul) Modified on 7/9/2014 (Court Staff, szf). (Entered: 07/09/2014)
Motions No Longer Referred: 59 MOTION for Order To Dismiss Plaintiff John Paul II Catholic School At St. Matthews (Court Staff, szf) (Entered: 07/09/2014)
60 ORDER DISMISSING PLAINTIFF JOHN PAUL II CATHOLIC SCHOOL AT ST. MATTHEWS by the Honorable Scott W Skavdahl re 59 Motion for Order. IT IS THEREFORE ORDERED that, pursuant to Federal Rules of Civil Procedure 21 and 4i(a)(2), Plaintiff John Paul II Catholic School at St. Matthews is hereby DISMISSED as a party to this proceeding. (Court Staff, stbd) (Entered: 07/14/2014)
61 MANDATE of USCA Procedural DISMISSAL OF 44 Notice of Interlocutory Appeal pursuant to parties stipulation. (Attachments: # 1 Mandate letter) (Court Staff, sds) (Entered: 10/17/2017)
62 (TEXT−ONLY) ORDER by the Honorable Scott W Skavdahl − Pursuant to 61 USCA Mandate filed 10/17/2017 the stay is hereby lifted; parties shall submit a status report

Case: 2:14-cv-21 As of: 01/13/2018 09:33 AM MST 11 of 11

10/23/2017 10/24/2017 11/08/2017

to the Court on or by 11/1/2017. (Court Staff, stbd) (Entered: 10/18/2017)
63 NOTICE by Plaintiffs Catholic Charities of Wyoming, Diocese of Cheyenne, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic College Notice of Withdrawal of Noel Francisco (Hickey, Paul) (Entered: 10/23/2017)
64 STIPULATION of Dismissal by Catholic Charities of Wyoming, Diocese of Cheyenne, John Paul II Catholic School at St. Matthews, Saint Joseph's Children's Home, St Anthony Tri−Parish Catholic School, Wyoming Catholic Collegepursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii). (Hickey, Paul) (Entered: 10/24/2017)
65 (TEXT−ONLY) ORDER by the Honorable Scott W Skavdahl granting 64 Stipulaton of Dismissal pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii). (Court Staff, stbd) (Entered: 11/08/2017)

 
 FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT

June 30, 2014

DIOCESE OF CHEYENNE; CATHOLIC CHARITIES OF WYOMING; ST. JOSEPH'S CHILDREN’S HOME; ST. ANTHONY TRI-PARISH CATHOLIC SCHOOL; WYOMING CATHOLIC COLLEGE,
Plaintiffs-Appellants,

Elisabeth A. Shumaker Clerk of Court
No. 14-8040 (D.C. No. 2:14-CV-00021-SWS)
(D. Wyo.)

v.

SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the U.S. Department of Health and Human Services;∗ THOMAS PEREZ, in his official capacity as Secretary of U.S. Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of the Treasury; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; U.S. DEPARTMENT OF THE TREASURY,

Defendants-Appellees.

ORDER

Before LUCERO and MATHESON, Circuit Judges.

∗

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,

Sylvia Mathews Burwell is substituted for Carolyn W. Colvin as the

defendant-appellee in this action.

Plaintiffs-Appellants seek an injunction pending appeal from the district court’s denial of a preliminary injunction. Plaintiffs-Appellants, who are a Roman Catholic Diocese and several Catholic organizations, seek to enjoin provisions of the Affordable Care Act and related regulations (“the Mandate”) pertaining to the provision of abortion-producing products, contraception, sterilization, and related education and counseling services (“contraceptive services”), to plaintiffs-appellants’ employees through a group health plan. Plaintiffs-Appellants contend that the Mandate violates the Religious Freedom Restoration Act (“RFRA”) by imposing a substantial burden on their religious beliefs that is not warranted by a compelling governmental interest that is advanced in the least restrictive means.
In a similar case before this court, the Supreme Court entered an injunction pending appeal after a panel of this court had denied one. See Little Sisters of the Poor Home for the Aged, Denver Colo. v. Sebelius, 134 S. Ct. 1022 (Jan. 24, 2014) (mem.).
In light of the Supreme Court’s ruling, we hereby order as follows. If the plaintiffs-appellants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the plaintiffs-appellants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending further order of the court. To meet the condition for injunction pending
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appeal, plaintiffs-appellants need not use the form prescribed by the Government and need not send copies to third-party administrators.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
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