Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 1 of 29 PageID 1

AVE MARIA UNIVERSITY, Plaintiff,

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

'FILED
2012 FEB 21 AM 8: Sit
U.S. DISTRICT COURT HIOOLE DISTRICT Of fLORIDA
FORT HYERS. FLORIDA

v.

KATHLEEN SEBELlUS, Secretary of the United States Department of Health and Human Services,

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

CrvILNo. - - - - -

HILDA SOLIS, Secretary of the United States Department of Labor,

COMPLAINT

UNITED STATES DEPARTMENT OF LABOR,

TIMOTHY GEITHNER, Secretary ofthe United States Department of the Treasury, and

UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

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COMPLAINT
Comes now Plaintiff Ave Maria University, by and through its attorneys, and states as follows:
NATURE OF THE ACTION
1. This is a challenge to regulations issued under the 2010 Affordable Care Act that force the Plaintiff-along with a multitude of other religious organizations-to violate their deepest religious beliefs.
2. Ave Maria University ("the University") was founded in 2003 to build an institution of Catholic higher education that would be publicly faithful to the authoritative teachings of the Catholic Church, in matters of both faith and morals. The University began as Ave Maria College in Ypsilanti, Michigan, and moved to its present campus in Naples, Florida in 2003. Additionally, the University has a branch Latin American Campus in San Marcos, Nicaragua.
3. The University's sincere religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion. The University is one of many American religious organizations that hold these beliefs.
4. Based on the teachings of the Catholic Church, and its own deeply held beliefs, the University does not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, the University believes these procedures involve gravely immoral practices, including the intentional destruction of innocent human life.
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5. With full knowledge of these beliefs, Defendants 1 issued an administrative rule ("the Mandate") pursuant to authority created by the Affordable Care Act that not only forces the University to treat contraception, sterilization, abortion, and related education and counseling as health care, but that also subverts the expression of the University's religious beliefs, and the beliefs of millions of other Americans, by forcing the University to fund, promote, and assist others to acquire services which it believes involve gravely immoral practices, including the destruction of innocent human life.
6. The Mandate unconstitutionally coerces the University to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces the University to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one's religion or controlling one's own speech is un-American, unprecedented, and flagrantly unconsti tu ti onal.
7. The Defendants' refusal to accommodate conscience is also highly selective. A patchwork of seemingly arbitrary exemptions announces that Defendants do not believe every insurance plan in the country need cover these services. For instance, Defendants have issued thousands of waivers from the Affordable Care Act altogether for groups, such as many large corporations, purely for reasons of commercial convenience. Other exemptions have been awarded based on how old a plan is, or how large an employer is. And there are many other exemptions from the Affordable Care Act and from the Mandate, for a variety of groups and for a variety of reasons. Missing, however, is any exemption for employers whose religious consciences instruct them that certain mandated services are ethically repugnant. In other words,
All defendants are referred to collectively as "Defendants" unless context reqUires greater specificity.
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the Defendants' pattern of exemptions reveals a massive blind spot for groups exercising their fundamental First Amendment freedoms.
8. The Defendants' actions therefore violate the University's right to freedom of religion, as secured by the First Amendment to the United States Constitution and by a civil rights statute, the Religious Freedom Restoration Act (RFRA).
9. The Defendants' actions also violate the University's right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
10. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
11. Had the University's religious beliefs been obscure or unknown, the Defendants' actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the religious beliefs of the University and millions of other Americans. The Defendants have, in sum, intentionally used government power to force religious groups to believe something about the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief under threat of heavy fines and other penalties. The University seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE
12. The Court has subject matter jurisdiction pursuant to 28 U.S.c. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has
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jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-l.
13. Venue lies in this district pursuant to 28 U.S.c. § 1391(e). The University is located in this district.
IDENTIFICATION OF PARTIES
14. Plaintiff Ave Maria University is a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code and is principally located in Collier County, Florida.
15. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate.
16. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management ofHHS. Sebelius is sued in her official capacity only.
17. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
18. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
19. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
20. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
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21. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTU AL ALLEGATIONS I. Ave Maria University's Religious Beliefs and Practices Related to Contraception,
Sterilization, and Abortion. 22. Ave Maria University was founded to build an institution of Catholic higher education that would be faithful to the authoritative teachings of the Catholic Church, in matters both of faith and morals. The University began as Ave Maria College in 1998, and moved to its present campus in Naples, Florida in 2003. 23. Faith is central to the identity and educational mISSIon of the University. It is established as a Catholic University according to the guidelines of the Code of Canon Law. Its recognition as a Catholic University is granted upon the University's commitment to continue to be guided by the teachings of the Catholic Church. 24. The University adheres to the Apostolic Constitution Ex Corde Ecclesiae of Pope John Paul II, which is the relevant law of the Catholic Church for Catholic colleges and universities. 25. The University endeavors to produce faithful Catholic educators, leaders, and mentors and to equip them to bring the truths of the faith into all areas of culture. To achieve this goal, the University challenges its faculty "to explicate the truths of the faith, and measure against them the evolving societal propositions or practices" in every arena, including politics, business, and the arts. 26. A deep devotion to the Catholic faith is central to the University's mission. In the University's own words:
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Founded in fidelity to Christ and His Church in response to the call of Vatican II for greater lay witness in contemporary society, Ave Maria University exists to further teaching, research, and learning at the undergraduate and graduate levels in the abiding tradition of Catholic thought in both national and international settings. The University takes as its mission the sponsorship of a liberal arts education curriculum dedicated, as articulated in the apostolic constitution Ex Corde Ecciesiae, to the advancement of human culture, the promotion of dialogue between faith and reason, the formation of men and women in the intellectual and moral virtues of the Catholic faith, and to the development of professional and pre-professional programs in response to local and societal needs. As an institution committed to Catholic principles, the University recognizes the importance of creating and maintaining an environment in which faith informs the life of the community and takes expression in all its programs. The University recognizes the central and indispensable role of the Ordinary of the Diocese of Venice in promoting and assisting in the preservation and strengthening of the University's Catholic identity.
27. The University thus holds and actively professes religious beliefs that include traditional Christian teachings on the sanctity of life. It believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. The University therefore believes and teaches that abortion ends a human life and is a grave sin.
28. The University's religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, the University believes, in accordance with Pope Paul VI's 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes:
to "most closely unit[e] husband and wife" and "for the generation of new lives." Accordingly, the University believes and actively professes, with the Catholic Church, that "[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will." Therefore, the University believes and teaches that "any action which either before, at the moment of, or after sexual intercourse, is specifically
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intended to prevent procreation, whether as an end or as a means"-including contraception and sterilization-is a grave sin.
29. Furthermore, the University subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, the University believes, in accordance with Pope John Paul II's 1995 encyclical Evangelium Vitae, that "'[c]ausing death' can never be considered a form of medical treatment," but rather "runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life."
30. The University has approximately 1,200 students. 31. The University has approximately 200 employees. 32. As part of its commitment to Catholic education, and in accordance with Catholic social teaching, the University promotes the well-being and health of its employees. In furtherance of these commitments, the University has striven over the years to provide its employees with health coverage superior to coverage generally available at Catholic peer institutions. 33. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, the University ensures that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith. In particular, the University has taken great pains through the years to ensure that its insurance plans do not cover sterilization, contraception, or abortion. 34. The University cannot provide health care Insurance covering artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.
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35. The University cannot provide information or guidance to its employees about other locations at which they can access artificial contraception, sterilization, abortion, or related education and counseling, without violating its deeply held religious beliefs.
36. The University's plan year begins on January 1. 37. Furthermore, the University relies on donations from the public in order to make tuition affordable to its students. Donors who give to the University do so with an understanding of its mission and with the assurance that the University will continue to follow and transmit reliable Catholic teachings on faith and morals. 38. The University cannot use donated funds for purposes known to be morally repugnant to its donors and in ways that violate the implicit trust of the purpose of their donations. II. The Affordable Care Act 39. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23,2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the "Affordable Care Act." 40. The Affordable Care Act regulates the national health insurance market by directly regulating "group health plans" and "health insurance issuers." 41. The Act does not apply equally to all insurers. 42. The Act does not apply equally to all individuals. 43. The Act does not apply its fine provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
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44. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econlsmallbus.html.
45. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of "health care sharing ministry" that meets certain criteria).
46. The Act's preventive care requirements do not apply to employers who provide socalled "grandfathered" health care plans.
47. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
48. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise.
http://www.healthcare.gov/news/factsheets/20 10106/keeping-the-health-plan-you-have-
grandfathered.html. 49. The Act is not generally applicable because it provides for numerous exemptions
from its rules. 50. The Act is not neutral because some groups, both secular and religious, enjoy
exemptions from the law, while certain religious groups do not. 51. The Act creates a system of individualized exemptions. 52. The Department of Health and Human Services has the authority under the Act to
grant compliance waivers ("HHS waivers") to employers and other health insurance plan issuers.
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53. HHS waivers release employers and other plan issuers from complying with the provisions of the Act.
54. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
55. Upon information and belief, more than a thousand HHS waivers have been granted. 56. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 57. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not. 58. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 59. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 60. Defendants' waiver practices create a system of individualized exemptions. III. The Preventive Care Mandate 61. One of the provisions of the Affordable Care Act mandates that health plans "provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" and directs the Secretary of Health and Human Services to determine what would constitute "preventative care" under the mandate. 42 U.S.C § 300gg-13(a)(4). 62. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726
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(2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
63. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.
64. HHS directed a private health policy organization, the Institute of Medicine ("10M"), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines.
65. In developing its guidelines, 10M invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women's Law Center, National Women's Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.
66. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
67. One year after the first interim final rule was published, on July 19,2011, the 10M published its recommendations. It recommended that the preventative services include sterilization procedures and "All Food and Drug Administration approved contraceptive methods
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[and] sterilization procedures." Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19,2011).
68. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the "morning-after pill"; and ulipristal, also known as "ella" or the "week-after pill"; and other drugs, devices, and procedures.
69. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the 10M recommendations in full and promulgated an interim final rule ("the Mandate"), which requires that all "group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage" provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3,2011); 45 C.F.R. § 147.130. On the same day HRSA issued guidelines adopting the 10M recommendations. http://www.hrsa.gov/womensguidelines.
70. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
71. The Mandate went into effect immediately as an "interim final rule." 72. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 73. Instead the Mandate was unresponsive to the concerns stated III the comments submitted by religious organizations. 74. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online.
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75. Upon information and belief, over 100,000 comments were submitted against the Mandate.
76. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that "we are in a war." She did not state whom she and NARAL Pro-Choice America were warring against.
77. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like the University which have been pointed out in comments.
78. The Mandate requires that the University provide coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law.
79. The Mandate constitutes government-imposed pressure and coerCIOn on the University to change or violate its religious beliefs.
80. The Mandate exposes the University to substantial fines for refusal to change or violate its religious beliefs.
81. The Mandate imposes a burden on the University's employee recruitment efforts by creating uncertainty as to whether the University will be able to offer health insurance beyond 2012.
82. The Mandate places the University at a competitive disadvantage in its efforts to recruit and retain employees and students.
83. The Mandate forces the University to provide contraception, sterilization, and some abortifacient drugs in violation of the University's religious beliefs that doing so is gravely immoral and, in certain cases, equivalent to assisting another to destroy innocent human life.
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84. The Mandate forces the University to provide emergency contraception in violation of its religious beliefs that this is equivalent to assisting another to destroy innocent human life.
85. The University has a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and ella since it believes those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a human being.
86. The University considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
87. The University believes that Plan B and ella can cause the death of the embryo, which is a person.
88. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 89. Ella can prevent the implantation of a human embryo in the wall of the uterus. 90. Plan B and ella can cause the death of the embryo. 91. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an "abortion" as that term is used in federal law. 92. The use of artificial means to cause the death of a human embryo constitutes an "abortion" as that term is used in federal law. 93. The Mandate forces the University to provide emergency contraception, including Plan B and ella, free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 94. The Mandate forces the University to fund education and counseling concerning contraception, sterilization, and abortion that directly conflicts with the University's religious beliefs and teachings.
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95. The University could not tenninate its employees from health insurance coverage without violating its religious duty to provide for the health and well-being of its employees. Additionally, employees would be unable to attain similar coverage in the market as it exists today.
96. The Mandate forces the University to choose among violating its religious beliefs, incurring substantial fines, or tenninating its employee health insurance coverage.
97. Providing counseling and education about contraceptives, sterilization, and abortion directly undennines and subverts the explicit messages and speech of the University.
98. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1,2012.
99. The University has already had to devote significant institutional resources, including both staff time and funds, to detennining how to respond to the Mandate. The University anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect.
100. Given plan changes since March 23, 2010, the University's health insurance plan does not qualify as a grandfathered health plan. See 42 U.S.c. § 18011 (a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. IV. The Narrow and Discretionary Religious Exemption
101. The Mandate indicates that that the Health Resources and Services Administration ("HRSA") "may" grant religious exemptions to certain religious employers. 45 C.F.R. § 147. 130(a)(iv)(A).
102. The Mandate allows HRSA to grant exemptions for "religious employers" who "meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the
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organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R. § 147.l30(a)(iv)(8).
103. The Mandate imposes no constraint on HRSA's discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate's definition of "religious employers."
104. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
105. Most religious organizations, including the University, have more than one purpose. 106. For most religious organizations, including the University, the inculcation of religious values is only one purpose among others. 107. Many religious organizations, including the University, employ many persons who do not share the religious organization's beliefs. 108. Many religious organizations, including the University, serve many persons who do not share the religious tenets of the religious organization. 109. The University reasonably expects that it will be subject to the Mandate despite the existence of the exemption. 110. The University has no conscientious objection to providing preventive services such as mammograms. 111. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She added that "[n]onprofit employers who, based on religious
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beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law," on the condition that those employers certify they qualify for the extension. At the same time, however, Sebelius announced that HHS "intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with incomebased support." See Statement by U.S. Dep't of Health and Human Serv's Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/20 12pres/01120120120a.html (last visited February 7, 2012). V. The Mandate and the Religious Exemption Become Final, Without Change.
112. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different contraceptive services mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
113. On that same day-February 10, 2012-the Defendants issued a "guidance bulletin" describing a "Temporary Enforcement Safe Harbor" ("Safe Harbor") from the Mandate. The Safe Harbor applies to "non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans)." Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the
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Mandate "until the first plan year that begins on or after August 1, 2013," provided they meet certain criteria outlined in the guidance bulletin.2
114. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10,2012 onward, offered "contraceptive coverage ... by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization"; and (3) it has provided (for the first plan year beginning on or after August 1, 2012) a notice to plan participants stating that "[t]he organization that sponsors your groups health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing," and that "[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services."
115. On February 15, 2012, the Defendants adopted the original Mandate contained in the interim final rule, without any changes, as final. 77 Fed. Reg. 8725, 8727. The Defendants also adopted, without any changes, the original "religious employer" exemption. Id
116. In sum, the University will be required to satisfy the Safe Harbor notice requirements outlined in the guidance bulletin by January 1, 2013. Under the terms of the Safe Harbor, the University will be subject to enforcement action under the Mandate by January 1,2014.
See "Guidance on Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 ofthe Public Health Service Act, Section 715(a)(I) of the Employee Retirement Income Security Act, and Section 9815(a)( 1) of the Internal Revenue Code," U.S. DEP'T OF HEALTH & HUMAN SERV'S (Feb. 10, 2012), at 3, available at http://cciio.cms.gov/resources/files/Files2/021020 12/2012021 O-Preventive-Services-Bulletin.pdf (last visited February 17,2012).
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CLAIMS
COUNT I Violation of the Religious Freedom Restoration Act 117. The University incorporates by reference all preceding paragraphs.
118. The University's sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The University's compliance with these beliefs is a religious exercise.
119. The Mandate creates government-imposed coercive pressure on the University to change or violate its religious beliefs.
120. The Mandate chills the University's religious exercise. 121. The Mandate exposes the University to substantial fines for its religious exercise. 122. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 123. The Mandate imposes a substantial burden on the University's religious exercise. 124. The Mandate furthers no compelling governmental interest. 125. The Mandate is not narrowly tailored to any compelling governmental interest. 126. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 127. The Mandate and Defendants' threatened enforcement of the Mandate violate the Unviersity's rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 128. Absent injunctive and declaratory relief against the Defendants, the University has been and will continue to be harmed.
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COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate is neither neutral nor generally applicable 129. The University incorporates by reference all preceding paragraphs. 130. The University's sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The University's compliance with these beliefs is a religious exercise. 131. Neither the Affordable Care Act nor the Mandate is neutral. 132. Neither the Affordable Care Act nor the Mandate is generally applicable. 133. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 134. The Mandate furthers no compelling governmental interest. 135. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 136. The Mandate creates government-imposed coercive pressure on the Unversity to change or violate its religious beliefs. 137. The Mandate chills the University's religious exercise. 138. The Mandate exposes the University to substantial fines for its religious exercise. 139. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 140. The Mandate imposes a substantial burden on the University's religious exercise. 141. The Mandate is not narrowly tailored to any compelling governmental interest.
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142. The Mandate and Defendants' threatened enforcement of the Mandate violate the University's rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
143. Absent injunctive and declaratory relief against the Mandate, the Unversity has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate intentionally discriminates 144. The University incorporates by reference all preceding paragraphs. 145. The University's sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. The University's compliance with these beliefs is a religious exercise. 146. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for the University to comply with its religious beliefs. 147. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the University and others. 148. The Mandate and Defendants' threatened enforcement of the Mandate thus violate the University's rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 149. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
22

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 23 of 29 PageID 23
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate discriminates among religions 150. The University incorporates by reference all preceding paragraphs. 151. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 152. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of "religious employers." 153. The Mandate and Defendants' threatened enforcement of the Mandate thus violate the University's rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 154. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause The Mandate prefers certain denominations over others 155. The University incorporates by reference all preceding paragraphs. 156. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the Unversity. 157. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of "religious employers." 158. The Mandate and Defendants' threatened enforcement of the Mandate therefore violate the Unversity's rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution.
23

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 24 of 29 PageID 24
159. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 160. The University incorporates by reference all preceding paragraphs. 161. The Unversity teaches that contraception, sterilization, and abortion violate its religious beliefs. 162. The Mandate would compel the University to subsidize activities that the Unversity teaches are violations of the College's religious beliefs. 163. The Mandate would compel the University to provide education and counseling related to contraception, sterilization, and abortion. 164. Defendants' actions thus violate the University's right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 165. The Mandate's compelled speech requirement is not narrowly tailored to a compelling governmental interest. 166. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 167. The University incorporates by reference all preceding paragraphs. 168. The University teaches that contraception, sterilization, and abortion violate its religious beliefs.
24

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 25 of 29 PageID 25
169. The Mandate would compel the University to subsidize activities that the University teaches are violations ofthe University's religious beliefs.
170. The Mandate would compel the University to provide education and counseling related to contraception, sterilization, and abortion.
171. Defendants' actions thus violate the University's right of expressive association as secured to it by the First Amendment of the United States Constitution.
172. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
173. The University incorporates by reference all preceding paragraphs. 174. By stating that HRSA "may" grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated. 175. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as the University "primarily" serves and employs members of the same faith as the organization. 176. Defendants' actions therefore violate the University's right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 177. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
25

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 26 of 29 PageID 26
COUNT IX Violation of the Administrative Procedure Act
Lack ofGood Cause 178. The University incorporates by reference all preceding paragraphs. 179. Defendants' stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute 'good cause.' 180. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful "consideration of the relevant matter presented." Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 181. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the University is entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 182. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 183. The University incorporates by reference all preceding paragraphs. 184. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the University and similar organizations. 185. Defendants' explanation for its decision not to exempt the University and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
26

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 27 of 29 PageID 27
186. Thus, Defendants' issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
187. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 188. The University incorporates by reference all preceding paragraphs. 189. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 190. The Weldon Amendment provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] 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." 191. The Mandate requires issuers, including the University, to provide coverage of all Federal Drug Administration-approved contraceptives. 192. Some FDA-approved contraceptives cause abortions. 193. As set forth above, the Mandate violates RFRA and the First Amendment.
27

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 28 of 29 PageID 28
194. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA.
195. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be hanned.
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
196. The University incorporates by reference all preceding paragraphs. 197. The Mandate is contrary to the provisions of the Affordable Care Act. 198. Section 1303(b)(1 )(A) of the Affordable Care Act states that "nothing in this title"i.e., title I of the Act, which includes the provision dealing with "preventive services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." 199. Section 1303 further states that it is "the issuer" of a plan that "shall determine whether or not the plan provides coverage" of abortion services. 200. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 201. The Mandate requires issuers, including the University, to provide coverage of all Federal Drug Administration-approved contraceptives. 202. Some FDA-approved contraceptives cause abortions. 203. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 204. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
28

Case 2:12-cv-00088-JES-SPC Document 1 Filed 02/21/12 Page 29 of 29 PageID 29
PRAYER FOR RELIEF
Wherefore, Ave Maria University requests that the Court:
a. Declare that the Mandate and Defendants' enforcement of the Mandate against Ave
Maria University violates the First Amendment to the United States Constitution;
b. Declare that the Mandate and Defendants' enforcement of the Mandate against Ave
Maria University violates the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against Ave Maria
University and other religious organizations that object to providing insurance coverage
for contraceptives (including abortifacient contraceptives), sterilization procedures, and
related education and counseling;
e. Award Ave Maria University the costs of this action and reasonable attorney's fees; and
f. Award such other and further relief as it deems equitable and just.
Respectfully submitted this 21 st day of February, 2012.
Eric N. Kniffin, DC Bar No. 999473 S. Kyle Duncan, LA Bar No. 25038
THE BECKET FUND FOR RELIGIOUS LIBERTY
3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095
Fax: (202)95:~
t_<:LC-DsQl1~ OUlS D. D' Agos no Michael W. Pettit CHEFFY PASSIDOMO 821 Fifth Ave. South Naples, FL 23104 Tel.: (239) 261-9300 Fax: (239) 261-9782 Counsel for PlaintiffAve Maria University 5050 Ave Maria Blvd. Ave Maria, FL 34142
29

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

AVE MARIA UNIVERSITY,

Plaintiff,

v.

Case No: 2:12-cv-88-Ftm-99SPC

KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, and UNITED STATES DEPARTMENT OF TREASURY,

Defendants. ___________________________________/

ORDER

Ave Maria University has f iled this lawsuit t o challenge regulations promulgated

under the Affordable Care Act, see 42 U.S. C. § 300gg-13(a)(4), t hat require group

health plans and healt h insurance issuers, unless grandfathered or otherwise exempt,

to cover all FDA-approved contraception and sterilization methods. Ave Maria argues

that it cannot comply with this contraceptive-coverage mandate without violating its

religious beliefs and that the mandate viol ates the First Amendment, the Religious

Freedom Restoration Act, and the Administrati ve Procedure Act. The Defendants have

moved to dismiss Ave Maria’s Complaint on the basis that Ave Maria lacks standing and that its claims are not ripe for adjudication. 1 Because Ave Maria’s claims are not ripe,

they will be dismissed without prejudice.

1 This case is before the Court on De fendants’ Motion to Dismiss (Doc. 21), Ave Maria’s Response (Doc. 24), and Defendants’ Re ply (Doc. 27). The parties have als o filed numerous notices of supplemental authority.

Ave Maria’s lawsuit is one of many ca ses that have been filed throughout the country in which a religiously affiliated in stitution has challenged the c ontraceptive coverage requirement in the Affordable Care Act’s preventative services regulations. Courts in many of these cases have iss ued decisions that describe in detail the contraceptive-coverage mandate’s statutory and regulatory background. See, e.g. , Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012).
The crux of Defendants’ ripenes s argument is that they are in t he process of amending the challenged regulations to accommodate religi ous concerns and that they have represented that they will never enforce the regulati ons in their cu rrent form against Ave Maria or any similarly situated entity. Ave Maria co ncedes that it is eligible for a temporary enforcement safe harbor, (see Doc. 24 at 8-9), pursuant to which Defendants will n ot bring any enf orcement action against it for failing to provide contraceptive coverage until at least January 1, 2014. Additionally, Defend ants have initiated a rulemaking to amend the regulations and have re cently issued a notice of proposed rulemaking that would amend the c ontraceptive coverage requirement as it applies to Ave Maria. See 78 F ed. Reg. 8456, 8459 (Feb. 6, 20 13). Defendants have also represented to this Court that “the r egulations are certain t o change and that the government will never enforce them in thei r current form against” Ave Mari a or any similarly situated entities. (Doc. 69 at 3-5).
This Court therefore joins the overwhelming majority of courts to have addressed similar challenges by similarly sit uated plaintiffs in concluding that Ave Mari a’s claims are not ripe for adjudication. See, e.g., Wheaton Coll. v. Sebelius, No. 12-5273, 2012 WL 6652505 (D.C. Cir. Dec. 18, 2012); Most Reverend Wenski v. Sebelius, No. 12-cv-
2

23820 (S.D. Fla. Mar. 5, 2013) (attached to Doc. 71); Roman Catholic Diocese of Dallas

v. Sebelius, Civil Action No. 3:12-cv-01589-B, 2013 WL 68708 0 (N.D. Tex. Feb. 26,

2013); Archdiocese of St. Louis v. Sebeliu s, No. 4:12-cv-924-JAR, 2013 WL 328926

(E.D. Mo. Jan. 29, 2013); Roman Catholic Arc hbishop of Wash. v. Sebelius, No. 12-cv-

0815 (ABJ), 2013 WL 285599 (D. D.C. Jan. 25, 2013); Colo. Christian Univ. v. Sebelius ,

No. 11-cv-03350-CMA-BNB, 2013 WL 93188 (D. Co lo. Jan. 7, 2013); U niv. of Notre

Dame v. Sebelius, No. 3:12-cv-00523, 20 12 WL 6756332 (N.D. Ind. Dec. 31, 2012);

Catholic Diocese of Bilo xi v. Sebelius, No. 1:12- cv-00158, 2012 WL 6831407 (S.D.

Miss. Dec. 20, 2012); Nebraska v. U.S.

Dep’t of Health & Human Servs., No.

4:12CV3035, 2012 WL 2913402 (D . Neb. July 17, 2012); But see Roman Catholic

Diocese of Fort Worth v. Sebelius , No. 4:12-cv-00314-Y-TRM (N.D. Tex. Jan. 31, 2013)

(attached to Doc. 69); Roman Ca tholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ.

2542(BMC), 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012).

Accordingly, Defendants’ Moti on to Dismis s (Doc. 21) is GRANTED, and Ave

Maria’s Complaint (Doc. 1) is DISMISSED without prejudice. T he Clerk is directed t o

close this case.

DONE and ORDERED in Fort Myers, Florida on March 29, 2013.

Copies furnished to: Counsel of Record
3

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

AVE MARIA UNIVERSITY,
Plaintiff,
V.
KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER and UNITED STATES DEPARTMENT OF TREASURY,

Case No: 2:12-CV-88-FtM-99SPC

Defendants. ___________________________________/
ORDER This matter comes before the Court on Defendants' Motion to Stay Discovery Pending Resolution of Motion to Dismiss (Doc. #31) filed on July 10, 2012. In this case, the Plaintiff filed a Complaint challenging the Patient Protection and Affordable Care Act of 2010’s Regulatory Mandate requiring group health plans to provide coverage for women’s preventative care and screenings without cost sharing, which the Plaintiff contends violates their religious beliefs. (Doc. #1). On May 04, 2012, the Defendants filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. #22). Due to the fact that the Defendants’ Motion to Dismiss is pending, the Defendants filed the instant Motion, seeking the Court to stay discovery until the Court rules on the potentially dispositive motion. As both parties have submitted briefs to the Court on the instant motion, the issue is now ripe for review.

When ruling on motions to stay discovery, Courts in this District have held that “[m]otions to [s]tay discovery may be granted pursuant to Rule 26(c), Fed. R. Civ. P., and the moving party bears the burden of showing good cause and reasonableness.” Feldman v. Flood, 176 F.R.D. 651, 652 (M.D. Fla. 1997) (citing Howard v. Galesi, 107 F.R.D. 348 (S.D.N.Y.1985)). Moreover, “such motions are not favored because when discovery is delayed or prolonged it can create case management problems which impede the Court's responsibility to expedite discovery and cause unnecessary litigation expenses and problems.” Id. (citing Kron Medical Corp. v. Groth, 119 F.R.D. 636 (M.D.N.C.1988)). “Finally, the Court ordinarily should not stay discovery which is necessary to gather facts in order to defend against the motion.” Id. (citing Wilderness Soc. v. Griles, 824 F.2d 4 (D.C.Cir.1987); Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550 (11th Cir.1985)).
“In deciding whether to stay discovery pending resolution of a pending motion, the Court inevitably must balance the harm produced by a delay in discovery against the possibility that the motion will be granted and entirely eliminate the need for such discovery.” Id. In this case, the Defendants contend that going forward with discovery “would impose a heavy burden on the Defendants” because of “the large number of other challenges to the preventive services coverage regulations defendants are litigating across the country.” (Doc. #31, P. 6).
The Defendant relies on Chadsuma v Mazda Corporation, 123 F.3d 1353, 1367 (11th Cir. 1997), for the general proposition that discovery should be stayed until a pending motion to dismiss is resolved. Chadsuma states: “[f]acial challenges based on the failure to state a claim for relief, should, however, be resolved before discovery begins. Id. at 1368. However, this argument fails. Chadsuma does not stand for the proposition that all discovery should be stayed pending a decision on a motion to dismiss. Koock v. Sugar & Felsenthal, LLP, 2009 WL
2

2579307 * 2 (M.D. Fla. August 19, 2009). “Instead, Chadsuma and its progeny ‘stand for the much narrower proposition that courts should not delay ruling on a likely meritorious motion to dismiss while undue discovery costs mount.” Schreiber v Kite King’s Lake, LLC., 2010 WL 3909717 *1 (M.D.Fla. October 1, 2010); Koock, 2009 WL 2579307 at * 2; In re Winn Dixie Stores, Inc., 2007 WL 1877887 *1 (M.D. Fla. June 28, 2007).
Due to the fact that there are a “large number of other challenges” by similarly situated plaintiffs, even if the Defendants’ Motion to Dismiss is granted, the Defendants will still have to conduct nearly identical discovery in numerous other cases. Therefore, because the Defendant will conduct discovery on the issue in this case whether or not the Defendants succeed on their Motion to Dismiss, the Court finds that the potential “harm produced by a delay in discovery” outweighs “the possibility that the motion will be granted and entirely eliminate the need for such discovery”.
Accordingly, it is now ORDERED: Defendants' Motion to Stay Discovery Pending Resolution of Motion to Dismiss (Doc. #31) is DENIED. DONE and ORDERED in Fort Myers, Florida this 31st day of July, 2012.
Copies: All Parties of Record
3

 
 Case 2:12-cv-00088-UA-SPC Document 59 Filed 11/28/12 Page 1 of 5 PageID 498

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

AVE MARIA UNIVERSITY,
Plaintiff,
v.
KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, and UNITED STATES DEPARTMENT OF TREASURY,

Case No: 2:12-cv-88-Ftm-99SPC

Defendants. ___________________________________/
ORDER This case involves a challenge to regulations issued under the Patient Protection and Affordable Care Act of 2010. The challenged regulations require that “‘group health plan[s] and . . . health insurance issuer[s] o ffering group or individ ual health insurance coverage’ provide all FD A-approved contraceptive methods and sterilization procedures.” (Compl. ¶ 69 (citing 76 F ed. Reg. 46621 (publis hed Aug. 3, 2011); 45 C.F.R. § 147.130)). Plaintiff contends that it cannot comply with this contraceptivecoverage mandate without violating its religious beliefs, (id. ¶ 34), and it argues that the mandate violates the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Defendants hav e filed a Motion to Dismiss ( Doc. 21) for lack of subject-matter jurisdiction, arguing that Plaintiff’s alleged injury is too speculative to confer standing and that the case is also not ripe for decision.

Case 2:12-cv-00088-UA-SPC Document 59 Filed 11/28/12 Page 2 of 5 PageID 499
The case is now bef ore the Court on De fendants’ Objections to Magistrate Judge’s July 31, 2012 Order Denying a Stay of Discovery (Doc. 37). The Order (Doc. 36), rendered by the assigned m agistrate judge, denied Defendants’ Motion to Stay Discovery Pending Resolution of Motion to Dismiss (Doc. 31) . Plaintiff has filed an Opposition to Defendants’ Objections (Doc . 43) and Defendants fil ed a Reply (Doc. 48) thereto. Defendants’ Objections are ripe for the Court’s review.
Under 28 U.S.C. § 636(b)(1 )(A), a district judge may re consider a pretrial matter decided by a magistrate judge where it ha s been s hown that the magistrate judge’s order is contrary to law. The Order at issu e here correctly explains that a court deciding a motion to stay discovery pending resolu tion of another motion “‘must balance the harm produced by a delay in discovery agains t the possibility that the motion will be granted and entirely eliminate the need for such discovery .’” (Doc. 36 at 2 (quoting Feldman v. Flood, 176 F.R.D. 651, 652 (M.D. Fla. 1997))). However, Defendants object that the challenged O rder fails to apply thes e factors. Defendants’ objection is we ll taken. In this Court’s view, the Order is cont rary to law. Balancing the omitted factors, the Court finds that discovery s hould be s tayed until the Court rules on Defendants ’ Motion to Dismiss.
The Order states that “[d]ue to the fact that there are a ‘lar ge number of other challenges’ by similarly situat ed plaintiffs . . . the Defe ndants will still have t o conduct nearly identical discovery in numerous other cases.” (Doc. 36 at 3). In turn, the Order denies the Motion to Stay Disc overy on t he basis that “the De fendant will conduct discovery on the iss ue in this case whet her or not the Defend ants succeed on their Motion to Dismiss.” (Id.). The Order does not address the likelihood that the Motion to
2

Case 2:12-cv-00088-UA-SPC Document 59 Filed 11/28/12 Page 3 of 5 PageID 500
Dismiss will be granted and elim inate the need for dis covery in this case, nor does the Order address “harm produced by a delay in di scovery.” Instead, the Order focuses solely on whether the De fendants would nonetheles s have to proceed with simila r discovery in other cases.
Having considered the omitted factors, the Court finds that discovery should be stayed until the Court rules on t he Motion to Dismiss. There is a significant possibility that the Court will grant De fendants’ Motion to Dis miss for lack of subject-matter jurisdiction, eliminating the need for discovery in this case. It is also evident that delaying discovery until the Cour t rules on whether it has juri sdiction will cause Plaintif f little, if any, harm.
There is a significant possibility that t he Court will grant Defend ants’ Motion to Dismiss on the grounds that Plaintiff’s alle ged injury is too speculativ e to confer standing and that the case is not ripe fo r decision. The contraception-coverage mandate Plaintiff challenges in its Complain t will not be enforceabl e until January 1, 2014, (Compl. ¶ 116); meanwhile, Defendants are in the process of amending the relevant regulations to addres s Plaintiff’s concerns. In particular, Defendants hav e published in the Federal Register their plan to amend the challenged regulations:
Before the end of the temporar y enforcement safe harbor, the Departments will wor k with sta keholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage. Specifically, the Departments plan to initiate a rulema king to require issuers to offer insurance without contraception co verage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employ er's plan participants (and their beneficiaries) who desire it, with no cost-sharing.
3

Case 2:12-cv-00088-UA-SPC Document 59 Filed 11/28/12 Page 4 of 5 PageID 501
77 Fed. Reg. 8728. Moreover, Defendants have already issued an Advanc e Notice of Proposed Rulemaking to initiate this amendment process. 77 F ed. Reg. 16503. The Court is also aware that other c ourts have found a lack of subject-matter jurisdiction in similar cases against the Defendants. See Wheaton Coll. v. Sebelius, Civ il Action No. 12-1169 (ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012); Belmont Abbey Coll. v. Sebelius, Civil Action No. 11-1989 (JEB), 2012 WL 2914417 (D.D.C. July 18, 2012).
As for “harm produced by a delay in disco very,” Feldman 176 F.R.D. at 652, the Court finds that staying discover y until it re solves the Motion to Dismiss will not cause Plaintiff any significant harm. Plaintiff asserts that “a stay of discovery delays the resolution of the case, and Plaintiff is burdened now, as it considers how to manage the ramifications of ceasing to offer insurance to its employees and of paying a crippling annual fine to the government.” (Doc. 43 at 5). But staying discovery will only delay the resolution of the case if the Motion to Dism iss is denied, and there is a signific ant possibility that it wi ll be granted. Furthe rmore, whatever burden Pla intiff faces in preparing for enforcement of the mandate must be assessed in light of the fact that such enforcement is speculative given the amendments underway to accommodate Plaintiff’s religious concerns.
Therefore, given the possi bility that the Court will grant Defendants’ Motion to Dismiss and the fact that stayi ng discovery until the Court resolves the Motion to Dismiss will not cause the Plaintiff any significant harm, a stay is appropriate.
In accordance with the foregoing, Defendan ts’ Objections to Magistrate Judge’s July 31, 2012 Order Deny ing a St ay of Discovery (Doc. 37) are SUSTAINED. The ruling in that Order is ov erturned, and Def endants’ Motion to St ay Discovery Pending
4

Case 2:12-cv-00088-UA-SPC Document 59 Filed 11/28/12 Page 5 of 5 PageID 502 Resolution of Motion to Dismiss (Doc. 31) is GRANTED. Dis covery in this case is stayed until the Court rules on Defendants’ Motion to Dismiss (Doc. 21).
DONE and ORDERED in Orlando, Florida on November 28, 2012. Copies furnished to: Counsel of Record
5

 
 Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 1 of 50 PageID 1
•

U N IT ED STA T ES D IST RI CT Co u n T M IOIlL E DI STlU CT OF F L O R I IM
FT. Mn: ns DIVISION

AVE MAR IA UN IVERSITY,
Plaintiff,
v.
KA THLEEN SEIlELl US, Secre tary
of the Uni ted States Department of Hea lth and 1·lulllan Services;
UN ITED STATES DEPA RTMENT OF H EA LT H AN D H UMAN SERVICES;
T I-IOMAS PEREZ, Secretary o f the United States Department of Labor;
UN ITED ST,HES D E Pf\RT~'IENTOF L ABOR;
J ACOB LEW, Sec retary of the United Sta les Depart ment of the Treasury; and
UN ITED STATES D EPARTt...IENT OF THE T REASU RY,
DefendanlS.

C,V,L No. _____
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Plaintiff Ave Maria Un iversity, by and through its attorneys, alleges and states as rollows:

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 2 of 50 PageID 2
NATURE OF THE ACTION I. This is a challenge to regulations issued under the 20 I0 Affordable Care Act that force Plaintiff Ave Maria University-along with a multitude of other religious organizations-to violate their deepest religious beliefs. 2. Ave Maria University was founded in 2003 to build an institution of Catholic higher education that would be publicly faithful to the authoritative teachings of the Catholic Church, in matters of both faith and morals. The University began as Ave Maria College in Ypsilanti, Michigan, and moved to its present campus in Naples, Florida, in 2003. 3. The University's sincere religious beliefs forbid it from facilitating, participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion. The University is one of many American religious organizations that hold these beliefs. 4. Based on the teachings of the Catholic Church, and its own deeply held beliefs, the University does not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well-being of persons. Indeed, the University believes these procedures involve gravely immoral practices, including the intentional destruction of innocent human life. 5. The University publicly speaks out against contraception, sterilization, and abortion, including abortion caused by emergency contraceptives. 6. The University cannot fulfill its mission of preparing students to impact the world by living their Christian values if it violates its own religious convictions by complying with the
2

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 3 of 50 PageID 3
challenged regulations and facilitating access to contraception, sterilization, or abortion, or related counseling and services.
7. The University qualifies for no exemption from the regulations. While "religious employers" are exempted, Defendants have limited that exemption to protect only "churches, their integrated auxiliaries, and conventions or associations of churches" and "the exclusively religious activities of any religious order."
8. Thousands of other organizations remain exempt from the regulations for purely secular reasons. For example, organizations with plans in existence before March 2010 (i.e., "grandfathered" plans), small employers, and other favored organizations are exempt from the challenged regulations.
9. The regulations do offer the University and other non-exempt religious organizations a so-called "accommodation." But the "accommodation" is meaningless. It would still require the University to playa central role in the government's scheme to facilitate free access to contraceptive and abortion-inducing drugs and devices. Thus, the "accommodation" does nothing to resolve the University's objections.
10. The supposed "accommodation" also continues to treat the University as a secondclass religious organization, not entitled to the same religious freedom rights as other religious organizations, including any religious universities that are "integrated auxiliaries" to churches.
11. If the University does not compromise its religious convictions and comply with the regulations, however, it faces severe penalties of up to $15,000 per day, or approximately $5.5 million each year.
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12. By placing the University in this impossible position, Defendants have violated the Religious Freedom Restoration Act, as well as the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment of the United States Constitution, the Due Process Clause of the Fifth Amendment, and the Administrative Procedures Act.
13. The University therefore requests declaratory and pennanent injunctive relief. JURISDICTION AND VENUE
14. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
15. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and the Plaintiff is located in this district.
IDENTIFICATION OF PARTIES 16. Plaintiff Ave Maria University is a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code and is principally located in Collier County, Florida. 17. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing and enforcing the challenged regulations. 18. Defendants Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services ("HHS"). In this capacity, she has responsibility for the operation and management ofHHS. Secretary Sebelius is sued in her official capacity only.
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19. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
20. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Secretary Perez is sued in his official capacity only.
21. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
22. Defendant Jacob Lew is the Secretary of the Department of Treasury. In this capacity, he has responsibility for the operation and management of the Department. Secretary Lew is sued in his official capacity only.
23. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
FACTUAL ALLEGATIONS I. The University's Faithfulness to the Catholic Church
24. Ave Maria University was founded to build an institution of Catholic higher education that would be faithful to the authoritative teachings of the Catholic Church, in matters of both faith and morals.
25. Faith is central to the identity and educational mission of the University. It is established as a Catholic University according to the guidelines of the Code of Canon Law.
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The University adheres to the Apostolic Constitution Ex Corde Ecclesiae of Pope John Paul II, which is the relevant law of the Catholic Church for Catholic colleges and universities.
26. The University's faithfulness to the Catholic Church is evident in its bylaws, trustees, faculty, students, curriculum, and campus life.
27. Article I, § I, of its bylaws states that the University's purpose is "[t]o educate students in the principles and truths of the Catholic Faith, including dogmatic, moral and social teachings, as expressed in Sacred Tradition, Sacred Scripture, and the living Magisterium of the Catholic Church."
28. In pursuit of this purpose, the bylaws reqUire that all trustees be "practicing Catholics in good standing with the Church" and that "their public statements and writings exhibit faithful adherence to the Magisterium." Bylaws Art. III, § 8. Trustees can be removed "for cause" for "disavowal of any magisterial teaching of the Catholic Church." Bylaws Art. III, § 8.
29. The Board of Trustees, in turn, through the Faculty Handbook, intends that at least 75% of full-time faculty be practicing Catholics.
30. Approximately 90% of all full-time employees are practicing Catholics. 31. The University president, James Towey, personally interviews all candidates recommended for full-time employment-even if the prospective employee is not Catholicto ensure they will embrace and advance the University'S Catholic mission. 32. On occasion, President Towey has vetoed recommendations to hire based on his conclusion that employment of the particular candidates would be incompatible with the University'S Catholic mission.
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33. The local Ordinary-the Bishop of the Diocese of Venice of Florida-is an exofficio member of the University's Board of Trustees and is assigned to overseeing conformance with Church teaching.
34. Professors of a theological discipline at the University must apply for and receive a "mandatum" from the Ordinary after interviewing with him to ensure authentic Catholic teaching.
35. All professors who teach disciplines pertaining to faith or morals must make a public Profession of Faith and take an Oath of Fidelity, in the presence of the Ordinary, at the University's annual Mass at the beginning of each academic year.
36. President Towey also was required to make the Profession of Faith and to take the Oath when he was inaugurated as the University's second president on October 7,2011.
37. With respect to students, the University endeavors to produce faithful Catholic educators, leaders, and mentors and to equip them to bring the truths of the faith into all areas of culture.
38. To achieve this goal, the University challenges its faculty "to explicate the truths of the faith, and measure against them the evolving societal propositions or practices" in every arena, including politics, business, and the arts.
39. The University's required core curriculum includes twelve credits of Catholic theology--courses permeated with influences of the Catholic intellectual tradition.
40. The only graduate programs offered are a Masters and Doctoral program In theology.
41. Approximately 85% of University students are practicing Catholics.
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42. In January 2013, approximately 25% of the University's students traveled to
Washington, D.C. to participate in the March for Life.
43. In May 2013, a group of students traveled with President Towey to Calcutta, India,
to work in the missions of Mother Teresa as a way to promote Catholic social teaching and the call to service.
44. Hundreds of students each year volunteer in impoverished communities near the
University through the University's Service Learning Office, again as a means to live Catholic social teaching.
45. On campus, most of the six residence halls have a chapel with the Blessed
Sacrament reposed there. There are three Masses a day at the campus Oratory, and there is
perpetual Eucharist adoration on campus on weekdays when classes are in session.
46. In sum, a deep devotion to the Catholic faith is woven throughout every aspect of the
University. In the University's own words:
Founded in fidelity to Christ and His Church in response to the call of Vatican II for greater lay witness in contemporary society, Ave Maria University exists to further teaching, research, and learning at the undergraduate and graduate levels in the abiding tradition of Catholic thought in both national and international settings. The University takes as its mISSion the sponsorship of a liberal arts education curriculum dedicated, as articulated in the apostolic constitution Ex Corde Ecc/esiae, to the advancement of human culture, the promotion of dialogue between faith and reason, the formation of men and women in the intellectual and moral virtues of the Catholic faith, and to the development of professional and preprofessional programs in response to local and societal needs. As an institution committed to Catholic principles, the University recognizes the importance of creating and maintaining an environment in which faith informs the life of the community and takes expression in all its programs. The University recognizes the central and indispensable role of the Ordinary of the Diocese of Venice in promoting and assisting in the preservation and strengthening of the University's Catholic identity.
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II. Ave Maria University's Religious Beliefs and Practices Related to Contraception, Sterilization, and Abortion. 47. As one element of its faithfulness to the Catholic tradition, the University holds and
actively professes traditional Christian teachings on the sanctity of life. It believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception. The University therefore believes and teaches that abortion ends a human life and is a grave sin.
48. The University's religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, the University believes, in accordance with Pope Paul VI's 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to "most closely unit[e] husband and wife" and "for the generation of new lives."
49. Accordingly, the University believes and actively professes, with the Catholic Church, that "[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will."
50. Therefore, the University believes and teaches that "any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means"-including contraception and sterilization-is a grave sin.
51. Furthermore, the University subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, the University believes, in accordance with Pope John Paul II's 1995 encyclical Evangelium Vitae, that "'[c]ausing death' can never be considered a form of medical treatment," but rather "runs
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completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life."
52. The University has approximately 150 employees. 53. As part of its commitment to Catholic education, and in accordance with Catholic social teaching, the University promotes the well-being and health of its employees. In furtherance of these commitments, the University has striven over the years to provide its employees with health coverage superior to coverage generally available at Catholic peer institutions. 54. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, the University's insurance policies have never covered drugs, devices, services or procedures inconsistent with its faith. In particular, the University has taken great pains through the years to ensure that its insurance plans do not cover sterilization, contraception, or abortion. 55. The University cannot participate in any scheme to facilitate access to artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs. 56. The University cannot provide information or guidance to its employees about other locations at which they can access artificial contraception, sterilization, abortion, or related education and counseling, without violating its deeply held religious beliefs. 57. The University relies on donations from the public in order to make tuition affordable to its students. Donors who give to the University do so with an understanding of
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its mission and with the assurance that the University will continue to follow and transmit reliable Catholic teachings on faith and morals.
58. The University cannot use donated funds for purposes known to be morally repugnant to its donors and in ways that violate the implicit trust of the purpose of their donations.
59. University's employees choose to work at or attend the University because they either share its religious beliefs and/or commit to help the University further its mission. The University would violate their implicit trust in the organization and detrimentally alter its relationship with them if it were to violate its religious beliefs regarding contraception, sterilization, or abortion. II. The Affordable Care Act and Preventive Care Mandate
60. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the "Affordable Care Act."
61. The Affordable Care Act regulates the national health insurance market by directly regulating "group health plans" and "health insurance issuers."
62. One provision of the Act mandates that any "group health plan" or "health insurance issuer offering group or individual health insurance coverage" must provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
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63 . The services required to be covered include medications, screenings, and counseling given an ""A" or ""13" rating by the Un ited States Preventive Services Task Force; 1 imJ11uni Zc1.tions recommended by the Adviso ry Co mmittce on Immuni zation Practices of the Centers for Disease Contro l and Prevention; and " prevcntive care and scree nings" specific to in fa nts, chi ldren, adolescents, and womcn , as to be "prov ided for in comprehensive gu idelines supported by the Healt h Resources and Services Admin istration." 42 U.S.C . § 300gg-13(a)( 1)-(4).
64. The statute specifies that all of these se rvices mu st be provided without "any cost sharin g." 42 U.S.c. § 300gg- 13 (a).
The Interim Final Rule 65. On July 19, 2010, HH S2 published an interim fin al rule imposing regulations concerning the A ffordable Care Act ' s req uire ment fo r coverage of preventive services wi thollt cost sharing. 75 Feci. Reg. 4 1726, 41728 (20 I0). 66 . The inter im final ru le was enacted without prio r notice of" ru le making or opportu nity for publi c comment, because Defendants determ ined for themselves that " it would be impracticable and contrary to the public interest to delay putting the provisions ... in place unti l a full public noti ce and comment process was completed." 75 Fed. Reg. at 4 1730.
1 The list of services that currently have an "A" or " B" rating include med ications like aspirin for preventi ng cardiovascu lar disease, vitam in D, and folic acid; sc ree ni ngs for a wide ran ge of condi tions such as depression, certain cancers and sex ual ly-transmitted di seases, intimate pa rtncr viole nce, obcsity, and osteoporitis; and vari ous co un selin g services, includin g for breastfeed ing, sexuall y-transmitted di seases, smoking, obesity, healthy diet ing, cancer, and so rOrl h. See http://www.t1sprcvcnti vcsc rvi ccstasklo rcc.o r!!/uspstii'uspsabrecs.hllll (last visited Aug. 6, 2013 ); see also 75 Fed. Reg. 41726 , 41740 (20 10). 2 For casc of readin g, rererences to " I-II-IS" in this Co mp lail1l re fc r to all Defendants, un less co ntext indicates otherwise.
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67. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they claimed that "provisions of the Affordable Care Act protect significant rights" and therefore it was expedient that "participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities." ld.
68. Defendants stated they would later "provide the public with an opportunity for comment, but without delaying the effective date of the regulations," suggesting their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
69. In addition to reiterating the Affordable Care Act's preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act's restriction on cost sharing.
70. The Interim Final Rule makes clear that "cost sharing" refers to "out-of-pocket" expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
71. The Interim Final Rule acknowledges that, without cost sharing, expenses "previously paid out-of-pocket" would "now be covered by group health plans and issuers" and that those expenses would, in turn, result in "higher average premiums for all enrollees." Id.; see also id. at 41737 ("Such a transfer of costs could be expected to lead to an increase in premiums.")
72. In other words, the prohibition on cost-sharing was simply a way "to distribute the cost of preventive services more equitably across the broad insured population." 75 Fed. Reg. at 41730.
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73. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services-specifically contraception, sterilization, and abortion services-in their health care plans.
74. HHS directed a private health policy organization, the Institute of Medicine (10M), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
75. In developing its guidelines, 10M invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women's Law Center, National Women's Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
76. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
77. On July 19, 2011, the 10M published its preventive care guidelines for women, including a recommendation that preventive services include "[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures." Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
78. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the "morning-after pill");
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ulipri stal (a lso known as "e ll a" o r the "wee k ~ane r pill"); and othe r drugs, dev ices, and procedures.
79. Some of these dru gs and dcvices- including the "e merge ncy co ntrace ptives" Plan B and el la and cert ain IUDs-arc known abo rtifac ient s, in that they can ca use the death of an cmbryo by preventin g it fro m im plant ing in the wa ll of the uteru s.
80 . Indeed, the FDA's own Bi rth Control Guide states that both Plan B and ell a can work by " preve ntin g attac hm ent (implantation) to the womb (uteru s)." FDA, Office of Women's Hea lth , Birth Cont ro l G uidc at 16- 17, available a l http://www.fCla.!.!Ov/ ForConsull1ers/ 8vA udiencc/ ForWomcn/ucml18465. htm (last visited Aug. 6, 201 3) (attached as Ex hibit A) .
81. On August 1, 20 1 I, thirt een days after 10M issued its recommendations, HRSA iss ued guidelines ad optin g them in full. See hflp:l/wlI'w.hrsa.gov/ womensguidelines (anachcd as Exhibit A) .
The " Religious Employers" Exempti on 82. That same day, HI-IS promul gated an additional Interim Final Rule. 76 Fed. Reg. 46621 (publi shed Au g. 3,20 11 ). 83. Thi s Second Interim Final Rul e granted HR SA "discretion to exempt certain reli giou s emp loyers fro m the Guidelines where contrace ptive se rvices arc concerned." 76 Fed. Reg. 4662 1, 46623 (e mphasis added). The tcrm " reli g ious employer" was restrictive ly defin ed as one that ( 1) has as its purpose the " inc ul cation o f religious valucs"; (2) " primaril y cmploys persons who share the reli g ious tenets o r the organi zation"; (3) "serves primarily perso ns who share the re li gious tenets of the o rga ni zat io n" ; and (4) " is a nonprofit
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organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 76 Fed. Reg. at 46626 (emphasis added).
84. The fourth of these requirements refers to "churches, their integrated auxiliaries, and conventions or associations of churches" and the "exclusively religious activities of any religious order." 26 U.S.C.A. § 6033.
85. Thus, the "religious employers" exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition.
86. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women's Preventive Services Guidelines. The footnote states that "guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers." See hltp:llwww.hrsa.govlwomensguidelines (last visited Aug. 6,2013).
87. Although religious organizations like the University share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation's impact on their religious liberty, stating that the exemption sought only "to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. 46621, 46623.
88. Thus, the vast majority of religious organizations with conscientious objections to providing contraceptive, sterilization, and/or abortifacient services were excluded from the "religious employers" exemption.
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89. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or opportunity for public comment.
90. Defendants acknowledged that "while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations," they had "good cause" to conclude that public comment was "impracticable, unnecessary, or contrary to the public interest" in this instance. 76 Fed. Reg. at 46624.
91. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the "religious employers" exemption and protesting the contraception mandate's gross infringement on the rights of religious individuals and organizations.
92. HHS did not take into account the concerns of religious organizations 10 the comments submitted before the Second Interim Rule was issued.
93. Instead the Second Interim Rule was unresponsive to the concerns, including claims of statutory and constitutional conscience rights, stated in the comments submitted by religious organizations.
The Safe Harbor 94. The public outcry for a broader religious employers exemption continued for many months and, on January 20, 2013, HHS issued a press release acknowledging "the important concerns some have raised about religious liberty" and stating that religious objectors would be "provided an additional year . . . to comply with the new law." See Jan. 20, 2013 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius,
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available al IlI tp:llwww.hhs.f!ov/ncws/pressI20 12prcs/OI/20 120 120a.htm l (last visited Aug. 6, 20 13).
95. February 10, 2012, I-II-IS formall y announced a "safe harbor" for non-exempt nonprofit religious organizations that objected to covering free con tracept ive, steri li zation, and abort ifacient services.
96. Under the safe harbor, I-II-IS agreed it wou ld not take any enforce ment action against an eligible organization during the safe harbor, which would remain in eITect until the first plan year beginning after August 1, 20\3.
97. HI-IS also indicaled it would develop and propose changes to the regulation s to accom modate the objections of non-exempt , nonprofit reli gious organizations follow ing August 1, 20\3.
98. Despite the safe harbor and 1-1l-IS' s accompanying promises, on Fcbruary 15, 20 12, I-II-IS published a final rul e "finalizing, without change," the contrace pti on, sterili zation, and abortifacient mandate and narrow religious emp loye rs exemption. 77 Fed. Reg. 8725-01 (published Feb. 15,20 12).
The Advance Notice of Proposed Rul cmaking 99. On Marc h 2 1, 20 12, I-II-IS iss lled an Advance Notice or Proposed Rul emaking (ANP RM), presenting "questions and ideas" \0 " help shape" a discussion or how to "maintain the provision of co ntraceptive coverage without cost sharing," whi le accommodating the religious beliefs or non-exempt relig ious organi zation s. 77 Fed. Reg. 1650 I, 16503 (2012).
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100. The ANPRM conceded that forcing religious organizations to "contract, arrange, or pay for" the objectionable contraceptive, sterilization, and abortifacient servicers would infringe their "religious liberty interests." Jd. (emphasis added).
101. In vague terms, the ANPRM proposed that "health insurance issuers" for objecting religious employers could be required to "assume the responsibility for the provision of contraceptive coverage without cost sharing." Id.
102. For self-insured plans, the ANPRM suggested that third party plan administrators "assume this responsibility." Id.
103. For the first time, and contrary to the earlier definition of "cost sharing," Defendants suggested in the ANPRM that insurance issuers could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
104. "[A]pproximately 200,000 comments" were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely reiterating previous comments that the ANPRM's proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to contraception, sterilization, and abortifacient services.
The Notice of Proposed Rulemaking 105.0n February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013). 106. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
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107. First, it proposed revising the religious employers exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461
108. Under this proposal a "religious employer" would be one "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." 78 Fed. Reg. at 8461.
109. HHS emphasized, however, that this proposal "would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules." 78 Fed. Reg. 8456, 8461.
110. In other words, religious organizations like the University that are not fonnal churches or religious orders would continue to be excluded from the exemption.
111. Second, the NPRM reiterated HHS' s intention to "accommodate" non-exempt, nonprofit religious organizations by making them "designate" their insurance issuers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive, sterilization, and abortifacient drugs and services.
112. The proposed "accommodation" did not resolve the concerns of religious organizations like the University because it continued to force them to deliberately provide health insurance that would trigger access to contraceptive, sterilization, and abortifacient drugs and services, and related education and counseling.
113. In issuing the NPRM, HHS requested comments from the public by April 8, 2013. 78 Fed. Reg. 8457.
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114." [O]ver 400,000 co mm enls" were submitt ed in respo nse to the NPRM, 78 Fed. Reg. 39870, 3987 1, wi th religious organi za tions again ove rwhelmingly dec ryin g the proposed accommodation as a gross violation of the ir reli gious li berty because it wo uld consc ript their health care plans as the main cog in the government's sc heme ror ex panding access to contracept ive, sterili zati on, and abortif~lci cnt se rvices.
11 5. On April 8, 20 13, the samc day th e notice-and-comme nt period ended, Derendant Secretary Sebelius answered questions about the co ntraceptive, sterili zati on, ,mel abortifacient se rvices requiremen t in a pre se ntat ion at Harvard Uni ve rsity.
116. ln her remarks, Secretary Sebcliu s stated: We have just comp leted thc open cOlllm ent period for the so-ca lled accollllllodati on, and by August Ist or thi s year, every empl oyer will be covered by the law with one exception. Churches and church dioceses as em ployers arc exempted from thi s benefit. But Catholic hosp ital s, Catholic uni versit ies, ot her reli gious entities will be providing coverage to their employees starli ng August 1st. . [A]s of August 1st, 2013, every employee who doesn' t work di rectly for a church or a diocese will be inclllded in the benefit package. See The Forum at Harvard School of Publ ic Hea lth , A Conve rsat ion wi th Kat hleen Se belius, U.S. Secretary of Hcalth and i-Iuman Services. Apr. 8, 20 13, ami/able al hUD:1Itheforu m.sph.harvard .ed u/events/col1vcrsalion-kalhlec n-scbclill s (ep isode 9 at 2:25) (last visi ted Aug. 6, 2013) (emphases added). 117.1t is clear from the timi ng of these remarks that De fendant s gave no consideration 10 the co mm ents subm itted in response to the N PR.Vl I 's proposed "accommodati on." The Final Mandate 11 8.0n Jun e 28, 20 13, Defendan ts isslled a final rul e (the "Final Mandate"), whi ch ignores the objecti ons repeatedly rai sed by reli gious organ izHl ions and cont inues to co-opt
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obj ecting religious employers into the govern ment's scheme of expand ing free access to contraceptive, sterili zat ion, and abort ifacient services. 78 f ed. Reg. 39870.
119. Under the Final Mandate, the discretionary "religious employers" exemption, wh ich IS still implemented via footnote on the I-IRSA webs ite, see hll p:llwww.hrsa.gov/ womens!!uidcl incs (last visited Aug. 6, 2013), re main s limited to formal churches and religious orders "o rganized and operate[d]" as nonprofit entities and "referred to in section 6033(a)(3)(A)(i) or (iii) oflhe [InlemaI Revenue] Code." 78 Fed. Reg. al 39874.
120. All other religious organizations, including the Un iversity, are excluded from the exemption.
121. The Final Mandate creates a separate "accomm odati on" for certain non-exempt reli gious organizations. 78 Fed. Reg. at 39874 .
122 . An organization is eligible for the accommodation if it (I) " [o]pposes providing coverage for some or all of the contracept ive services required"; (2) "is organized and operates as a nonprofit entity"; (3) "holds it se lf out as a reli gious organi za ti on"; and (4) "se\fcertifies that it sati sfies the first three criteria." 78 fed . Reg. at 39874.
123. The self-certification must be executed "prior to the beginning of the fi rst plan year to which an accommodation is to apply." 78 fed. Reg. at 39875.
124. The Final Rule extend s the current safe harbor through the end of 2013. 78 Fed. Reg. al 39889.
125. Thus, an eligible organizati on wo uld need to execute the self-certificat ion prior to its first plan year that begins on or after Jan uary 1,2014, and deliver it to th e organization's
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insurance issuer or, if the organization has a self-insured plan, to the plan's third party administrator. 78 Fed. Reg. at 39875.
126. By the tenns of the accommodation, the University will be required to execute the self-certification and deliver it to its insurance issuer before January 1,2014.
127. By delivering its self-certification to its issuer, the University would trigger the issuer's obligation to make "separate payments for contraceptive services directly for plan participants and beneficiaries." 78 Fed. Reg. at 39875-76.
128. The University would have to identify its employees to the issuer for the distinct purpose of enabling the government's scheme to facilitate free access to contraceptive, sterilization, and abortifacient services.
129. The issuer's obligation to make direct payments for contraceptive, sterilization, and abortion services would continue only "for so long as the participant or beneficiary remains enrolled in the plan." 78 Fed. Reg. at 39876.
130. Thus the University would have to coordinate with its issuer regarding when it was adding or removing employees and beneficiaries from its healthcare plan and. as a result, from the contraceptive, sterilization, and abortifacient services payment scheme.
131. The issuer would be required to notify plan participants and beneficiaries of the contraceptive payment benefit "contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment" in a group health plan. 78 Fed. Reg. at 39876.
132. This would also require the University to coordinate the notices with its issuer.
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133. The issuer would be required to provide the contraceptive benefits "in a manner consistent" with the provision of other covered services. 78 Fed. Reg. at 39876-77.
134. Thus, any payment or coverage disputes presumably would be resolved under the terms of the University's existing plan documents.
135. Thus, even under the accommodation, the University and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to contraceptive, sterilization, and abortifacient services.
136. Under the accommodation, issuers "may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee. or other charge. or any portion thereof, directly or indirectly, on the eligible organization." 78 Fed. Reg. at 39896 (emphasis added).
137. For all other preventive services, including non-contraceptive preventive services for women, only cost-sharing (i.e., out-of-pocket expense) is prohibited. There is no restriction on passing along costs via premiums or other charges.
138. Defendants state that they "continue to believe, and have evidence to support," that providing payments for contraceptive, sterilization, and abortifacient services will be "cost neutral for issuers," because "[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women's health." 78 Fed. Reg. at 39877.
139. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
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140. Nevertheless, even if the payments were-over time-to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
141. Moreover, if cost savings arise that make insuring an employer's employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
142. Defendants suggest that, to maintain cost neutrality, issuers may simply ignore this fact and "set the premium for an eligible organization's large group policy as if no payments for contraceptive services had been provided to plan participants." 78 Fed. Reg. at 39877.
143. This encourages issuers to artificially inflate the eligible organization's premiums. 144. Under this methodology-even assuming its legality-the eligible organization would still bear the cost of the required payments for contraceptive, sterilization, and abortifacient services in violation of its conscience, as if the accommodation had never been made. 145. Defendants have suggested that "[a]nother option" would be to "treat the cost of payments for contraceptive services ... as an administrative cost that is spread across the issuer's entire risk pool, excluding plans established or maintained by eligible organizations." 78 Fed. Reg. at 39878. 146. There is no legal authority for forcing third parties to pay for services provided to eligible organizations under the accommodation.
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147. Furthennore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurance issuers to directly purchase contraceptive, sterilization, and abortifacient services for an eligible organization's plan participants and beneficiaries.
148. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
149. The accommodation does nothing to relieve non-exempt religious organizations with insured plans from being co-opted as the central cog in the government's scheme to expand access to free contraceptive, sterilization, and abortifacient services.
150. Despite the accommodation's convoluted machinations, a religious organization'S decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive, sterilization and abortifacient services.
151. The University cannot participate in or facilitate the government's scheme in this manner without violating its religious convictions.
The University'S Health Care Plan and Its Religious Objections 152. The plan year for the University's employee healthcare plan begins on January 1 of each year. 153. Thus, beginning on or about January 1, 2014, the University faces the choice of either including free coverage for contraceptive, sterilization, and abortifacient services in its employee health plan or else causing its insurance issuer to provide the exact same services. 154. The University'S religious convictions forbid it from including free coverage for contraceptive, sterilization, or abortifacient services in its employee healthcare plan.
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155. The University's religious convictions equally forbid it from causing its insurance issuer to provide free access to abortifacient services.
156. From the University's perspective, forcing its insurance issuer to provide free access to contraceptive, sterilization, and abortifacient services is no different than directly providing that access.
157. The University's religious convictions forbid it from participating in any way in the government's scheme to provide free access to contraceptive, sterilization, and abortifacient services through the University's health care plan.
158. The University is not eligible for the religious employers exemption because it is not an organization "described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 76 Fed. Reg. 46621, 46626.
159. The University's employee healthcare plan does not meet the definition of a "grandfathered" plan.
160. If the University refuses to comply with the Final Mandate and refuses to force its insurer to carry out the Final Mandate by submitting a self-certification, it faces crippling fines of $100 each day, for "each individual to whom such failure relates." 26 U.S.C. § 4980D(b)(1).
161. Dropping its insurance plans would place the University at a severe competitive disadvantage in its efforts to recruit and retain employees.
162. The University would also face fines of $2000 per year for each of its employees for dropping its insurance plans.
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163. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the crippling daily fines under 26 U.S.C. § 4980D.
164. The University's Christian faith compels it to promote the spiritual and physical well-being of its employees by providing them with generous health services.
165. The Final Mandate forces the University to violate its religious beliefs or incur substantial fines for either excluding objectionable coverage without designating its insurance issuer or terminating its employee insurance coverage altogether.
166. The Final Mandate forces the University to deliberately provide health insurance that would facilitate free access to contraceptive, sterilization, and emergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain these drugs from other sources.
167. The Final Mandate forces the University to facilitate government-dictated education and counseling concerning contraceptive, sterilization, and abortion that directly conflicts with its religious beliefs and teachings.
168. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that the University seeks to convey.
The Lack of a Compelling Government Interest 169. The government lacks any compelling interest in coercmg the University to facilitate access to contraceptive, sterilization, and abortifacient services.
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170. The required contraceptive, sterilization, and abortifacient drugs, devices, and services, and related education and counseling, are already widely available at nonprohibitive costs.
171. There are multiple ways in which the government could provide access without coopting religious employers and their insurance plans in violation of their religious beliefs.
172. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits.
173. The government could also simply exempt all religious organizations, just as it has already exempted nonprofit religious employers referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
174. HHS claims that its "religious employers" exemption does not undermine its compelling interest in making contraceptive, sterilization, and abortifacient services available for free to women because "houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan." 78 Fed. Reg. at 39887.
175. Because of the University's express mission of promoting the sanctity of life and opposing all contraception, sterilization, and abortion, the University'S employees are just as likely as employees of exempt organizations to adhere to the same values, and thus are less likely than other people to use the objectionable drugs, devices, and services.
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176. In olle form or allot her, the governmcnt also providcs exc mpti ons for grand fath ered plans, 42 U.S.C. § 180 II ; 75 Fed. Reg. 4 1,726, 4 1,73 1 (20 I0), small employers with fewer than 50 empl oyees, 26 U.S.C. § 4980H(c)(2)(A), and certai n reli gio us dcnomi natio ns, 26 U. S.C. § 5000A(d)(2)(a)(i) and (ii ) (indi vidual mandate does not apply to members o f "recognized reli gio us seci o r di vision" that conscien tiously objects to acce ptance of public or pri vate insurance fund s); 26 U.S.c. § 5000A(d)(2)(b)(i i) (indi vid ual mandate docs nOI app ly to mcmbers of "health care sharin g mini stry" th ai mee ts certai n criteria).
177. These broad exempli ons fUrih er demonslrate that thc gove rnmcnt has no compelling interest in refusing 10 include reli gious organ izati ons lik c the Un iversity wi thin its rel igious empl oye rs cxempti on.
178. Employers who fo llo w I-II-IS guid eli nes may co ntinue to tlse grandfath ered plans indefinitely.
179. Indeed, I-{J-IS has predicted that a majoril Yof large em pl oye rs, employing 1110re than 50 million Americans, will continue 10 usc grandfatherecl plans through at least 20 14 , and thai a third of med iulll-sized cmploye rs wi th between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (Ju ne 17, 20 I0); See also htt p: //wcb .mchi vc.o r!!lwcb/ ")0 13062017151 O/ http://www.hcalthcare.!!ov/ nc ws/ faC lshcets/20 I0106/ kcepi na-t he- hcalth plan-vo u-have -Qrand fat he red.html (archi ved version) (last visited Aug. 7, 20 13); hl1pS:llwww.cms.Qov/CC II O/ Reso llfccs/ Files/ lactshect urn nd HlIhcr amcndl11en t. html (noting
or Ihal amendmelll to reg ul atio ns " will rcsult III a smail increase in the number plan s
retaining thcir grand fat hered stat us relati ve to the es tim ates made in the grandhllhering regulation").
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180. Accordin g to thc Unitcd States cc nsus, morc than 20 million indi viduals are

emp lo yed

by

finn s

w ith

fewer

than

20

emp loyees.

hII P://w\\'w.cenSLIS.!!0 v/cco11/ smaII bus. hlin I.

181. It is reasonable to preSllm e that milli ons more are employed by finns with between

20 and 50 empl oyees.

182. The gove rnment' s recent decision to postpone the employer mandate- i .e., the

annua l fin e or $2000 pe r e mployee ror not ofrering any insurance- al so demonstrates that

there is no compelling interest in coercing universa l compliance with the Fina l Mandate

co ncerning contracepti ve, steri lizat ion, and abort ifaci ent services, since employers can now

simpl y drop their insurance without any penalty, at least for one additiona l year.

183. These broad exemptions al so demonstrate that the final Mandate is not a generally

applicable law entitl ed to judicial dcfc rencc, but rather is const itutionally flawed.

184 . The government 's willingness to exempt va rious secular organizations and

postpone the employer tl1<lnciate, while adamantly refusing to provide anything but the

narrowest of exemption s for reli gious organ ization s also shows that the Final Mandate is not

neutral , but rath er di sc riminates again st religious organ izations because of their religious

commitment to promoting the sanctity of'lile.

185. Indeed , the Final Mandate was promu lgated by governmen t officials, and supported

by non~governmental organi zations, who strongly oppose religious teachings and beliefs

regarding marriage ancl famil y.

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186. Defendant Sebelius, for example, has long been a staunch supporter of abortion ri ghts and a vocal critic of religious teachings and beliefs regarding abortion and co ntracept ion .
187. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speec h at a fundraiser fo r NARAL Pro-Choice America. She told the assembled cro wd that "we are in a war. "
188. She fu rther criticized indi viduals and entities whose beliefs differed fro m those held by her and the others at the fundra iscr, stat in g; " Wouldn't you think that people who want to reduce the number of abo rtions would champ ion the cause of widely ava ilable, widely affordable contraceptive services? Not so much. "
189. On Jul y 16,2013, Secretary Sebcliu s further compared opponents of the Affordable Care Act ge nerally, including those with reli gious obj ections to the contracept ive mandate, to "people who opposed civil rights legislation in the 1960s," stating that upholding the Act requires the same act ion as was shown "in the fight against lynching and the fight for desegregation. " See http://www.h hs.gov/secrelary/abollt/speeches/sp20 1307 16.html (last visited Aug. 7,20\3).
190. Consequently, on information and belief, the University alleges that the purpose of the Final Mandate, including the restri ctively narrow scope of the religious employers exemption , is to discriminate aga inst religious organizations that oppose contraception, sterili zation, and abortion.
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CLAIMS
COUNT I
Violation of the Religious Freedom Restoration Act Substantial Burden
191. The University incorporates by reference all preceding paragraphs. 192. The University's sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to contraception, sterilization, and abortion-inducing drugs or services or related education and counseling. The University's compliance with these beliefs is a religious exercise. 193. The Final Mandate creates government-imposed coercive pressure on the University to change or violate its religious beliefs. 194. The Final Mandate chills the University's religious exercise. 195. The Final Mandate exposes the University to substantial fines for its religious exercise. 196. The Final Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 197. The Final Mandate imposes a substantial burden on the University'S religious exercise. 198. The Final Mandate furthers no compelling governmental interest. 199. The Final Mandate is not narrowly tailored to any compelling governmental interest. 200. The Final Mandate is not the least restrictive means of furthering Defendants' stated interests.
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201. The Final Mandate and Defendants' threatened enforcement of the Final Mandate violate the University's rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
202. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 203. The University incorporates by reference all preceding paragraphs. 204. The University's sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to contraception, sterilization, or abortion or related education and counseling. The University's compliance with these beliefs is a religious exercise. 205. Neither the Affordable Care Act nor the Final Mandate is neutral. 206. Neither the Affordable Care Act nor the Final Mandate is generally applicable. 207. Defendants have created categorical and individualized exemptions to the Final Mandate. 208. The Final Mandate furthers no compelling governmental interest. 209. The Final Mandate is not the least restrictive means of furthering Defendants' stated interests. 210. The Final Mandate creates government-imposed coercive pressure on the University to change or violate its religious beliefs.
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211. The Final Mandate chills the University's religious exercise. 212. The Final Mandate exposes the University to substantial fines for its religious exerCIse. 213. The Final Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 214. The Final Mandate imposes a substantial burden on the University's religious exercise. 215. The Final Mandate IS not narrowly tailored to any compelling governmental interest. 216. The Final Mandate and Defendants' threatened enforcement of the Final Mandate violate the University'S rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 217. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 218. The University incorporates by reference all preceding paragraphs. 219. The University's sincerely held religious beliefs prohibit it from deliberately providing health insurance that would facilitate access to contraception, sterilization, or abortion or related education and counseling. The University'S compliance with these beliefs is a religious exercise.
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220. Despite being infonned in detail of these beliefs beforehand~ Defendants designed the Final Mandate and its religious employers exemption to the Final Mandate to target religious organizations like the University because of their religious beliefs.
221. Defendants promulgated both the Final Mandate and its religious employers exemption to suppress the religious exercise of the University and others.
222. The Final Mandate and Defendants' threatened enforcement of the Final Mandate thus violate the University's rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
223. Absent injunctive and declaratory relief against the Final Mandate~ the University has been and will continue to be hanned.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Discrimination Among Religions
224. The University incorporates by reference all preceding paragraphs. 225. The Free Exercise Clause and Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 226. This mandate of equal treatment protects organizations as well as individuals. 227. The Final Mandate's narrow exemption for "religious employers" but not others discriminates among religions on the basis of religious views or religious status.
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228. The Final Mandate and Defendants' threatened enforcement of the Final Mandate thus violate the University's rights secured to it by the First Amendment of the United States Constitution.
229. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective BurdenlDenominational Preference (Larson v. Valente) 230. The University incorporates by reference all preceding paragraphs. 231. By design, defendants imposed the Final Mandate on some religious organizations but not on others, resulting in a selective burden on the University. 232. The Final Mandate and Defendants' threatened enforcement of the Final Mandate therefore violate the University's rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution. 233. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT VI Interference in Matters of Intcrnal Religious Governance
Frec Exercisc Clausc and Establishment Clause 234. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 235. The Free Exercise Clause and the Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of internal governance as well as those of faith and doctrine.
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236. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, leadership, or doctrine.
237. 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.
238. The University has made an internal decision, dictated by its Christian faith, that the health plans it makes available to its employees and students may not subsidize, provide, or facilitate access to contraceptive, sterilization, and abortifacient drugs, devices, or related services.
239. The Final Mandate interferes with the University's internal decisions concerning its structure and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its Christian beliefs.
240. The Final Mandate's interference with the University's internal decisions affects its faith and mission by requiring it to subsidize, provide, and facilitate practices that directly conflict with its religious beliefs.
241. Because the Final Mandate interferes with the University's internal decision making in a manner that affects its faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment.
242. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
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COUNT VII Religious Discrimination Violation of the First and Fifth Amendments to the United States Constitution Establishment Clause and Due Process 243. The University incorporates by reference all preceding paragraphs. 244. By design. defendants imposed the Final Mandate on some religious organizations but not on others. resulting in discrimination among religious objectors. 245. Religious liberty is a fundamental right. 246. The "religious employer" exemption protects many religious objectors. but not the University. 247. The "accommodation" provides no meaningful protection for the University. 248. The Final Mandate and Defendants' threatened enforcement of the Final Mandate therefore violate the University's rights secured to it by the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. 249. Absent injunctive and declaratory relief against the Final Mandate. the University has been and will continue to be harmed.
COUNT VIII Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 250. The University incorporates by reference all preceding paragraphs. 251. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 252. This mandate of equal treatment protects organizations as well as individuals.
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253. The Final Mandate's narrow exemption for "religious employers" but not others discriminates among religions on the basis of religious views or religious status.
254. The Final Mandate and Defendants' threatened enforcement of the Final Mandate thus violate the University'S rights secured to it by the Fifth Amendment of the United States Constitution.
255. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 256. The University incorporates by reference all preceding paragraphs. 257. The University teaches that contraception, sterilization, and abortion violate its religious beliefs. 258. The Final Mandate would compel the University to facilitate activities that the University teaches are violations of its religious beliefs. 259. The Final Mandate would compel the University to facilitate access to governmentdictated education and counseling related to contraception, sterilization, and abortion. 260. Defendants' actions thus violate the University'S right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 261. The Final Mandate's compelled speech requirement is not narrowly tailored to a compelling governmental interest.
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262. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT X Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 263. The University incorporates by reference all preceding paragraphs. 264. The University teaches that contraception, sterilization, and abortion violate its religious beliefs. 265. The Final Mandate would compel the University to facilitate activities that it teaches are violations of its religious beliefs. 266. The Final Mandate would compel the University to facilitate access to govemmentdictated education and counseling related to contraception, sterilization, and abortion. 267. Defendants' actions thus violate the University's right of expressive association as secured to it by the First Amendment of the United States Constitution. 268. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
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COUNT XI Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
269. The University incorporates by reference all preceding paragraphs. 270. By stating that HRSA "may" grant an exemption to certain religious groups, the Final Mandate vests HRSA with unbridled discretion over which organizations can have their First Amendment interests accommodated. 271. Defendants have exercised unbridled discretion in a discriminatory manner by granting an exemption via footnote in a website for a narrowly defined group of "religious employers" but not for other religious organizations like the University. 272. Defendants have further exercised unbridled discretion by indiscriminately waiving enforcement of some provisions of the Affordable Care Act while refusing to waive enforcement of the Final Mandate, despite its conflict with the free exercise of religion. 273. The Defendants' actions therefore violate the University's right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 274. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act Lack of Good Cause and Improper Delegation 275. The University incorporates by reference all preceding paragraphs.
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276. The Affordable Care Act expressly delegates to HRSA, an agency within Defendant HHS. the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide.
277. Given this express delegation, Defendants were required to engage in formal noticeand-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
278. Defendants promulgated the "preventive care" guidelines without engagmg In formal notice-and-comment rulemaking in a manner prescribed by law. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a nongovernmental entity, the rOM.
279. The rOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the rOM report noted both that the rOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
280. Within two weeks of the rOM issuing its guidelines, Defendant HHS issued a press release announcing that the rOM's guidelines were required under the Affordable Care Act.
281. Defendants have never explained why they failed to enact these "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
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282. Defendants' stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute "good cause."
283. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful "consideration of the relevant matter presented."
284. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule or the NPRM.
285. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the University is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
286. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT XIII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 287. The University incorporates by reference all preceding paragraphs. 288. In promulgating the Final Mandate, Defendants failed to consider the constitutional and statutory implications of the Final Mandate on the University and similar organizations. 289. Defendants' explanation for its decision not to exempt the University and similar religious organizations from the Final Mandate runs counter to the evidence submitted by religious organizations during the comment period.
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290. Defendant Secretary Sebelius, in remarks made at Harvard University on April 8, 2013, essentially conceded that Defendants completely disregarded the religious liberty concerns submitted by thousands of religious organizations and individuals.
291. Thus, Defendants' issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
292. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act Agency Action Without Statutory Authority 293. The University incorporates by reference all preceding paragraphs. 294. Defendant's authority to enact regulations under the Affordable Care Act is limited to the authority expressly granted them by Congress. 295. Defendants lack statutory authority to coerce insurance issuers to pay for contraceptive, sterilization, and abortifacient services for individuals with whom they have no contractual or fiduciary relationship. 296. Defendants lack statutory authority to prevent insurance issuers from passing on the costs of providing contraceptive, sterilization, and abortifacient services via higher premiums or other charges that are not "cost sharing." 297. Because the Final Mandate's "accommodation" for non-exempt, nonprofit religious organizations lacks legal authority, it is arbitrary and capricious and provides no legitimate protection of objecting organization's First Amendment rights.
45

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 46 of 50 PageID 46
298. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be harmed.
COUNT XV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 299. The University incorporates by reference all preceding paragraphs. 300. The Final Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110329, Div. A, Sec. 101, 122 Stat. 3574,3575 (Sept. 30, 2008). 301. The Weldon Amendment provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] 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." 302. The Final Mandate reqUires health care plans, including the University's, to deliberately provide health insurance that facilitates access to all Federal Drug Administration-approved contraceptives. 303. Some FDA-approved contraceptives cause abortions. 304. As set forth above, the Final Mandate violates RFRA and the First Amendment.
46

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 47 of 50 PageID 47
305. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA.
306. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be hanned.
COUNT XVI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
307. The University incorporates by reference all preceding paragraphs. 308. The Final Mandate is contrary to the provisions of the Affordable Care Act. 309. Section 1303(b)(1)(A) of the Affordable Care Act states that "nothing in this
title"-i.e., title I of the Act, which includes the provision dealing with "preventive
services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year."
310. Section 1303 further states that it is "the issuer" of a plan that "shall determine whether or not the plan provides coverage" of abortion services.
311. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
312. The Final Mandate requires issuers, including the University, to deliberately provide health insurance that would facilitate access to coverage of all Federal Drug Administration-approved contraceptives.
313. Some FDA-approved contraceptives cause abortions.
47

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 48 of 50 PageID 48
314. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA.
315. Absent injunctive and declaratory relief against the Final Mandate, the University has been and will continue to be hanned.
PRAYER FOR RELIEF Wherefore, the University requests that the Court:
a. Declare that the Final Mandate and Defendants' enforcement of the Final Mandate against the University violate the First Amendment of the United States Constitution;
b. Declare that the Final Mandate and Defendants' enforcement of the Final Mandate against the University violate the Fifth Amendment of the United States Constitution;
c. Declare that the Final Mandate and Defendants' enforcement of the Final Mandate against the University violate the Religious Freedom Restoration Act;
d. Declare that the Final Mandate was issued in violation of the Administrative Procedure Act;
e. Issue a permanent injunction prohibiting Defendants from enforcing the Final Mandate against the University and other religious organizations that object to facilitating access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
f. Award the University the costs of this action and reasonable attorney's fees; and g. Award such other and further relief as it deems equitable and just.
48

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 49 of 50 PageID 49
.J UR Y DEMAND
The University request s a trial by jury on all issues so triable.
Respectfu ll y subm itted this 29th day of August, 2013.
Eric S. Baxter, Trial Counsel Primary Emai l: ebaxterra>,beckctfund.org
(Pro hac vice pending) Diana Venn Primary Emai l: dve rmCa>.becketfund.org
(Pro hac vice pending)
THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K SI. NW, Ste. 220 Washington, DC 20007
Te l. : (202) 955 -0095 Fax: (202) 955 -0090
L~-'4 M ~PA,,;9l, =s 2-
touis D. D'Agosdno
Florida Bar No.: 0776890 Primary Email: Iddaaosl ino[a)naplesiaw.coll1 Michael W. Penit Florida Bar No.: 097336 Primary Email: mwpcttit@.nap]cslaw.com Secondary Email: dpaslor@nap les!aw.com C.·IEFFY PASSIDO ~W 821 Fifth Ave. South Nap les, Florida 23104 Tel.: (239) 26 1-9300
Fax: (239) 261 -9782
COllllselfor PlaillliffAve ,Haria University 5050 Ave Maria Blvd. Ave Maria, FL 34142
49

Case 2:13-cv-00630-JSM-CM Document 1 Filed 08/29/13 Page 50 of 50 PageID 50
\
VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 1 declare under penalty of pel:iury that the foregoing is true and correct to the best or my knO\vledge.
Executed on 2c:; ,t)'-7 V)7. 20 13
*1 certify that 1 have the signed original of this document, li1hich is available for inspection at any time by the Courl 01' a party to this action.
50

 
 Case 2:13-cv-00630-JSM-UAM Document 46 Filed 12/11/13 Page 1 of 1 PageID 410

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

AVE MARIA UNIVERSITY,

Plaintiff,

v.

Case No: 2:13-cv-630-JSM-UAM

KATHLEEN SEBELIUS, et al.,

Defendants.

ORDER THIS CAUSE comes before the Court sua sponte. The United States Suprem e Court recently accepted two cases that substantially relate to the core issues in the instant case. It is therefore ORDERED AND ADJUDGED that: 1. This case shall be adm inistratively stayed during the pendency of the Suprem e Court’s resolution of the circuit split regardi ng the Affordable Care Act’s contraception coverage. 2. The Clerk of Court shall close this case and terminate any pending motions. 3. Within t hirty (30) days after the Suprem e Court’s resolution of this issue, either party may move to reopen this case. DONE and ORDERED in Tampa, Florida on December 11, 2013.

Copies furnished to: Counsel/Parties of Record
S:\FT MYERS cases\13-cv-630.stay.wpd

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

AVE MARIA UNIVERSITY,

Plaintiff,

v.

Case No: 2:13-cv-630-JSM-CM

SYLVIA BURWELL, et al.,

Defendants.

ORDER THIS CAUSE comes before the Court upon Plaintiff Ave Maria University’s (“Ave Maria”) Motion for Preliminary Injunction (Dkt. 52), Defendants’ Opposition (Dkt. 5 3), and Plaintiff’s Reply (Dkt. 56). Upon consideration of the record, the submissions of the parties, an d the re levant law, it is t he Court ’s conclusi on that Ave Maria’s motion for preliminary injunction should be granted.
BACKGROUND Ave Maria seeks a preliminary injunction enjoining the Defendants from enforcing the mandate i ssued pursuant to 42 U.S.C. § 300gg-13(a)(4) and implementing guidance and regulations (the “Mandate”) of the Patient Protection and Affordable Care Act on the grounds that it violates the Religious Freedom Restoration Act, 42 U.S.C. § 200bb et seq. (“RFRA”), and the First Amendment of the United States Constitution. Defendants do no t di spute that Ave Maria is a non-profit Catholic univer sity purposed with “educat[ing] students in the principles and truths of the Catholic faith”. (Pl.

Br. at 6). One such e lement of the Cath olic f aith that Ave Mari a holds and professes concerns the sanctity of life. Ave Maria “believes that each human being bears the image and likeness of God, and theref ore that an y abortion—including through post-conception contraception—ends a human life and is a grave sin.” Id. at 6-7. Ave Maria also believes that sterilization and the use of contraception are morally wrong.
Ave Maria offers healthcare coverage to its employees through its insured employee healthcare pl ans. Ave Maria’ s religio us convictio ns forbid it f rom pro viding contraception, sterilization, and abortifacient products in its employee healthcare plans.
In March 2010, Congress enacted the Patient Protection and Affordable Care Act (“ACA”). 124 Stat. 119 (2010). The ACA requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum es sential c overage.” 26 U.S .C. § 50 00A(f)(2); §§ 49 80H(a), (c)(2). The ACA requires that any employer in this category must “provide coverage for and shall not impose an y cost shar ing require ments f or” certain preventat ive se rvice categories. 42 U.S.C. § 3 00gg-13(a). With re spect to w omen, the Ma ndate requires “such a dditional preventative care and screenings…as provided for in comprehensive guidelines supported by the Hea lth Resources and Services Ad ministration”. Id. The Health Resources an d Services Administration (“HRSA”), a component of the Department of Health and Human Services (“HHS”), adopted comprehensive guidelines that were formulated by the private Institute of Medicine (“IOM”) to def ine the additional “pre ventive care and screening s”. IOM’s guidelines provide that all FDA-approved contraceptives, sterilization procedures, and related educa tion and counselin g are included in the definition of additional
2

preventative care and screenings under the Mandate. A plan or issuer that fails to provide coverage for these preventative services and screenings will incur substantial tax penalties under the Internal Revenue Code. See e.g., 26 U.S.C. § 4980D(b)(1) (taxing organizations that of fer group health plans that do not i nclude cover age f or preventative ca re an d screenings under the Mandate $100 p er da y f or each af fected indi vidual); 26 U.S.C. § 4980H(c)(1) (taxing organizations that do not offer health coverage and have at least one full-time employee that has certified to the employer under section 1411 of the ACA $2000 per employee each year).
Several categories of employers are exempt from the Mandate pursuant to federal regulations c reated b y HRSA. One such exe mption exis ts f or “religious e mployer[s].” 45 C.F.R. § 147.131(a). A religious employer is defined as an organization that operates as a nonpr ofit entity as referred to in the Internal Revenue Code provisions 26 U.S.C. § 6033(a)(3)(A)(i) an d (iii), w hich i ncludes churches, thei r i ntegrated a uxiliaries, conventions or associ ations of churches, and the exclusivel y religious activitie s of any religious order. 45 C.F.R. § 147.131(a) (cross-referencing 26 U.S.C. § 6033(a)(3)(A)(i) and (iii)). Other exempted employers include those providing “ grandfathered health plans”—plans that e xisted prior t o March 23, 2010, an d that ha ve not made s pecified changes af ter that date —and e mployers with fewer than 50 em ployees. See Burwell v. Hobby L obby Stores, I nc., 134 S. Ct. 27 51, 2764, 18 9 L. Ed. 2 d 6 75 (2014 ) (citing 42 U.S.C. §§ 18011(a), (e), and 26 U. S.C. § 4 980H(c)(2)). Employers with “grandf athered health pl ans” need no t co mply with many of the ACA’ s requirements, i ncluding the Mandate, while employers with fewer than 50 employees are not required to provide health
3

insurance at all. Id. Ave Maria does not qualify for any of these exemptions. On July 2, 2013, the Department of Labor, HHS and the Treasury (collectively, the
“Departments”) published final rules regarding the federal regulations that implement the Mandate: 78 Fed. Reg. 39,870 (July 2, 2013) (the “2013 Final Rules”). The 2013 Final Rules maintain the ex emptions f or religi ous e mployers, e mployers with “gran dfathered health plans” , and e mployers wit h less than 50 e mployees. The 2 013 F inal R ules also include “accommodations” for eligible organizations. 78 Fed. Reg. at 39,874-78; see also 45 C.F.R. § 147.131(b)-(c).
Pursuant to the 2013 Final Rules, an “eligible organization” is an organization that: (1) opposes providing coverage for some or all of the contraceptive services required by the Mandat e and i ts i mplementing regu lations on acco unt of religi ous object ions; ( 2) is organized and operates as a nonprofit entity; (3) holds itself out as a religious organization; and (4) self -certifies t hat it satisf ies the f irst three criteri a pursu ant to the pr ocedure included therein . See 78 F ed. Reg. at 39,87 4. Self-certification und er the 2013 F inal Rules requires eligible organizations to execute and deliver a specific form to their insurers, self-certifying that they are eligible for the accommodation. Upon receipt of the requisite form, the EBSA Form 700 (“Form 700”), from an eligible organization, the organization’s insurance issuer is required to “assume sole responsibility for providing separate payments for contraceptive servi ces directl y f or plan p articipants an d benef iciaries, witho ut cos t sharing, premium, fee, or other charge to plan participants or beneficiaries or to the eligible organization or its pl an.” 78 Fed. Reg. at 39,876; see also 45 C.F.R. § 147.131( c)(2)(i). According to the 2013 Final Rules, “nonprofit religious organizations that qualify for these
4

accommodations are n ot required to contrac t, arrange, pa y, or refer f or contraceptive
coverage; h owever, pl an participa nts an d be neficiaries (or stud ent enrollees and the ir
covered dependents) will still benefit from separate pa yments for contraceptive services
without cost sharing or other charge” pursuant to the i mplementing regulations. 78 Fed.
Reg. at 39,874.1
On July 3, 2014, the S upreme Court issued an interim order in conn ection with an
application f or an inj unction, enjoi ning the government from en forcing the Mandate
against an eligible organization pending appeal in Wheaton College v. Burwell, 134 S. Ct.
2806 (2014). Th e interim order in Wheaton College held that to obtain injunction pending
appeal, an eli gible or ganization i s not req uired to f ollow the n otice proced ures f or
accommodation in the 2013 Final Rules. See id. at 2807. The order stated
[i]f the applicant informs th e Secretar y of Health and Hu man S ervices in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the [Departments] are en joined f rom e nforcing against the app licant the challenged pro visions of the [ACA] and related regulation s pendin g f inal disposition of appellate review. To meet the condition f or injunction pending appeal, the applicant need not use the [Form 700], and need not send copies to health insurance issuers or third-party administrators.
1 The D epartments pr esent “ various opt ions” f or i nsurance i ssuers t o “ achieve[] c ost neutrality, notwithstanding that they must make payments for contraceptive services without cost sharing, premium, fee, or other charge to the eligible organization, the group health plan, or plan participants or beneficiaries” in the 2013 Final Rules. Id. at 39,877. One such option is “to treat the cost of payments for contraceptive services for women enrolled in insured group health plans established or maintained by eligible organizations as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations given t hat i ssuers a re pr ohibited f rom c harging any pr emium, f ee, or ot her c harge t o e ligible organizations or their plans for providing payments for contraceptive services.” Id. at 39,878. The Departments maintain that under the various options, “the eligible organization would not contract, arrange, pay, or refer for contraceptive coverage.” Id.
5

Id. at 2807. The Supreme Court noted “[n]othing in this int erim order affects the ability
of the applican t’s employees and students to obtain, without cost, the full range of FDA
approved contraceptives,” or precludes the Government from relying on the notice by the
applicant “to facilitate the provision of full contraceptive coverage under the Act.” Id.
In light of the Supreme Court’s ruling in Wheaton College, the Departments issued
interim f inal re gulations (the “Interi m F inal Reg ulations”) that aug mented t he
accommodation process contained in the 2013 Final Rules. 79 Fed. Reg. 51,092. The
Interim Final Regulations “provide an alternative process for the sponsor of a group health
plan or an institution of higher education to provide notice of its r eligious objecti on to
coverage of all or a su bset of contraceptive services, as an alternati ve to the EBSA Form
700 method of self-certification.” Id. at 51,094. The Interim Final Regulations provide
that
an eligible organization may notify HHS in writing of its religious objection to coverage of all or a subset of contraceptive services. The notic e m ust include the na me of the eligible orga nization and the basis o n w hich it qualifies f or an accommodation; its object ion based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers.
Id. at 51,094-95. Under this alternative process, when an eligible organization that
provides a n otice to HHS , HH S will se nd a se parate notification to the e ligible
organization’s healt h i nsurance is suer inf orming the issuer that HHS has re ceived the
eligible organization’s notice and describing the obligations of the issuer to “[e]xpressly
6

exclude co ntraceptive coverage f rom th e gro up health insura nce c overage pr ovided in connection with the group h ealth plan; a nd…[p]rovide s eparate pa yments f or an y contraceptive services required to be covered…for plan participants and beneficiaries for so long as they remain enrolled in the plan.” 29 C.F.R. § 2590.715–2713A. As with the receipt of the Form 700, upon receiving notice from HHS that an eligible organization has objected to coverage of contraceptive services pursuant to the interim final regulations, the eligible organization’s insurance i ssuer is r equired to assume sole responsibility for providing separate payments for contraceptive services directly for plan participants and beneficiaries, without cost sharing, premium, fee, or other char ge to plan part icipants or beneficiaries or to the eligible org anization or its plan. See 79 Fed. Reg. at 51,095 (“Issuers remain responsible for compliance with the statutory and regulatory requirement to prov ide c overage f or contra ceptive servi ces to partici pants and beneficiaries, and to enrollees and dependents of student health plans, notwithstanding that the policyholder is an eligible organiz ation with a religious obje ction to contracept ive coverage that will no t have to contract, arrange, pay, or refer for such coverage.”)
Ave Maria may qualify as an eligible organization under the 2013 Final Rules or the Interim Final Regulations if it self -certifies pursuant to either of the acco mmodations included therein. On July 30, 2014, Ave Maria provided notice (the “Notice”) to HHS of its objection to the Mandate, stating in relevant part, “Ave Maria University is a non‐profit organization that h olds itself out as reli gious and has r eligious obj ections to providi ng coverage for the contraceptive services described in the relevant rules.” (Dkt. 47-1, Ex. A). The Notice did not include any information regarding Ave Maria’s insurance issuer’s
7

contact information, nor did it include Ave Maria’s plan na me or plan type. Id. Defendants do not consent to a preli minary injunction enjoining them from enforcing the Mandate against Ave Maria upon renewal of its healthcare plan.2 Ave Maria’s renewal of its healthcare plan will occur on November 1, 2014.
DISCUSSION Having considered the record, the submissions of the parties, and the relevant law, the Court concludes th at t he m otion should be granted. T he Court reads the Eleventh Circuit’s holding in Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Serv s., 756 F.3d 1339 (11t h Cir . 2014 ), as supporting the issuance of a preliminary injunction here. The Court is mindful of certain distinctions between the requirements of the 2013 Final Rules that were at issue in Eternal Word, and the n otice req uirements u nder the Interim Final Regulations at issue in the instant case. In Eternal Word, under the 2013 Final Rules, an eligible organization was required to submit the Form 700 to its insurance issuer in order to self -certify. See id. Here, pursuant to the Interi m F inal Rules, Ave Maria may, instead, send a notice containing certain information about its insurance issuer and plan directly to H HS in order to self -certify. It is the Court’s conclusion that th is distinction is n ot so significant as to warrant departure f rom th e Eleventh Circui t’s precedent i n Eternal W ord. Likewise, the Court is not persuaded that Eternal Word ’s
2 HHS has previously granted Ave Maria relief i n the form of a one-year “safe harbor” period during which HHS declined to enforce the Mandate against Ave Maria.
8

procedural posture substantially distinguishes it from the instant case. In Eternal Word, the Eleventh Circuit considered the appellant’s motion for injunction pending appeal after the dist rict c ourt grant ed the gover nment’s motion to dismiss an d the appellant filed its notice of appeal. In t he appellant ’s “ti me sensitive” motion, a ppellant argued that an injunction was necessary to prevent the government from enforcing the Mandate against it upon the first day of its insurance plan year; the same day it would become subject to the Mandate. As is the case here, the date of the beginning of appellant’s insurance plan year was less than one month away. Because the circumstances that gave rise to the Eleventh Circuit’s determination that an injunction was appropriate pending appeal in Eternal Word are analogous to those presented in the insta nt case, the precedent est ablished in Eternal Word is appropriately applied here. It is therefore
ORDERED AND ADJUDGED that: 1. Plaintiff Ave Maria University’s Motion for Preliminary Injunction (Dkt. 52) is
GRANTED. 2. Defendants are enjoin ed f rom enf orcing a gainst Av e Ma ria U niversity t he
substantive re quirements set f orth in 42 U.S.C. § 300gg -13(a)(4) and its implementing guidance and regulations, and from assessing fines or taking other enforcement action against Ave Maria University for noncompliance. 3. This preliminary injunction takes effect immediately, and shall remain in effect pending entry of final judgment in this matter or further order of this Court.
9

4. This case is stayed pending resolution of the appeal in Eternal Word Television Network, Inc. v. Sec ’y, U.S. Dep’ t of Health & Human Serv s., et al ., No. 14 12696-CC (11th Cir. filed July 28, 2014).
5. The Clerk is directed to administratively close this case. 6. The parties are directe d to notif y the Court o f the final disposition of Eternal
Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., et al., No. 14-12696-CC (11th Cir. filed July 28, 2014) within 30 days thereof. DONE and ORDERED in Tampa, Florida, this 28th day of October, 2014.
Copies furnished to: Counsel/Parties of Record
S:\FT MYERS\13-cv-630 order grant prelim inj.docx
10

 
 Case 2:13-cv-00795-JSM-CM Document 68 Filed 07/11/18 Page 1 of 3 PageID 879

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FT. MYERS DIVISION

AVE MARIA SCHOOL OF LAW, Plaintiff,
v.
ALEX AZAR, et al. Defendants.

Civil No. 2:13-cv-795-JSM-CM
ORDER REOPENING CASE AND GRANTING PERMANENT INJUNCTION AND DECLARATORY RELIEF

Upon consideration of Plaintiff Ave Maria School of Law’s Motion for Permanent Injunction and Declaratory Relief (Dkt. 66) and Defendants’ Response (Dkt. 67), the Court GRANTS the motion to the extent stated herein, finds that a permanent injunction under Rule 65(d) and declaratory relief under 28 U.S.C. § 2201 are warranted, and states the following findings and conclusions:
(1) Ave Maria has demonstrated, and Defendants concede, that the promulgation and enforcement of the contraceptive mandate against Ave Maria through any means that require Ave Maria to provide or facilitate the provision of coverage for contraceptive goods or services to which it holds sincere religious objections violated and would violate Ave Maria’s rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb.

1

Case 2:13-cv-00795-JSM-CM Document 68 Filed 07/11/18 Page 2 of 3 PageID 880
(2) Ave Maria will suffer irreparable harm to its ability to practice its religious beliefs, harm that is the direct result of Defendants’ conduct, unless Defendants are enjoined from further interfering with Ave Maria’s practice of its religion.
(3) The threatened injury to Ave Maria outweighs any injury to Defendants resulting from this injunction.
(4) The public interest in the vindication of religious freedom favors the entry of an injunction.
It is, therefore, ORDERED that this case is REOPENED and that Ave Maria’s Motion for Permanent Injunction and Declaratory Relief (Dkt. 66) is GRANTED.
It is further ORDERED that the Court issues the following PERMANENT INJUNCTION:
Defendants, their agents, officers, employees, and their successors in office and anyone acting in active concert or participation with Defendants, are enjoined and restrained from any effort to apply or enforce the substantive requirements imposed in 42 U.S.C. § 300gg-13(a)(4) and any implementing regulations as those requirements relate to the provision of sterilization or contraceptive drugs, devices, or procedures and related education and counseling to which Ave Maria has sincerelyheld religious objections, and are enjoined and restrained from pursuing, charging, or assessing penalties, fines, assessments, or any other enforcement actions for noncompliance related thereto, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d and including, but not limited to, penalties for failure to offer or facilitate access to religiously-objectionable sterilization or contraceptive
2

Case 2:13-cv-00795-JSM-CM Document 68 Filed 07/11/18 Page 3 of 3 PageID 881 drugs, devices, or procedures, and related education and counseling, against Ave Maria and any insurers and third-party administrators acting on behalf of Ave Maria with respect to its health plans. Defendants remain free to enforce 26 U.S.C. § 4980H for any purpose other than to require Ave Maria or its insurers, third-party administrators, or others acting on its behalf to provide or facilitate the provision of sterilization or contraceptive drugs, devices, or procedures, and related education and counseling, to which Plaintiff has sincerely-held religious objections, or to punish them for failing to do so.
The Clerk of Court is directed to close this case. DONE and ORDERED this 11th day of July, 2018.
3

 
 Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 1 of 9
APPEAL, CLOSED, NOREF
U.S. District Court Middle District of Florida (Ft. Myers) CIVIL DOCKET FOR CASE #: 2:13−cv−00630−JSM−CM

Ave Maria University v. Sebelius et al Assigned to: Judge James S. Moody, Jr Referred to: Magistrate Judge Carol Mirando Case in other court: 14−15780 Cause: 28:2201 Injunction
Plaintiff
Ave Maria University

Date Filed: 08/29/2013 Date Terminated: 07/12/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Diana M. Verm The Becket Fund for Religious Liberty Suite 220 3000 K St NW Washington, DC 20007 202/955−0095 Fax: 202/955−0090 Email: dverm@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S. Baxter The Becket Fund for Religious Liberty Ste. 220 3000 K St. N.W. Washington, DC 20007 202/955−0095 Fax: 202/955−0090 Email: ebaxter@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis D. D'Agostino Cheffy Passidomo, PA Suite 201 821 Fifth Ave S Naples, FL 34102−6621 239/261−9300 Fax: 239−261−9782 Email: lddagostino@napleslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Westcott Pettit Cheffy Passidomo, PA Suite 201 821 Fifth Ave S Naples, FL 34102−6621 239/261−9300 Fax: 239/261−9782 Email: mwpettit@napleslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Kathleen Sebelius Secretary of the United States Department of Health and Human

represented by Jacek Pruski U.S. Department of Justice 20 Massachusetts Ave. NW

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 2 of 9

Services

6141 Washington, DC 20530 Email: jacek.pruski@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Bennett US Department of Justice − Civil Division Room 6140 20 Massachusetts Ave NW Washington, DC 20530 202/305−8902 Fax: 202/616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Grogg U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave. NW Washington, DC 20001−0000 202/514−2395 Email: adam.a.grogg@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Health and Human Services

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Adam Grogg (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas Perez Secretary of the United States Department of Labor

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Adam Grogg (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jacob Lew Secretary of the United States Department of Treasury

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Bennett

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 3 of 9

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

Adam Grogg (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Department of the Treasury

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Adam Grogg (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Adam Grogg (See above for address) ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Florida ACLU of Florida 4500 Biscayne Blvd Suite 340 Miami, FL 33137 786−363−2700

represented by Brigitte Amiri American Civil Liberties Union Foundation 125 Broad St., 18th Floor New York, NY 10004 212/549−2601 Fax: 212/549−2650 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Mach American Civil Liberties Union Foundation 915 15th St., 6th Floor Washington, DC 20005 202/548−6604 Fax: 202/546−0738 Email: dmach@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lee American Civil Liberties Union

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 4 of 9

Foundation 125 Broad St., 18th Floor New York, NY 10004 212/549−2601 Fax: 212/549−2650 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Kayanan ACLU Foundation of Florida, Inc. Suite 400 4343 West Flagler Street Miami, FL 33134 305−815−7131 Email: mkhellsten@gmail.com ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Brigitte Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Mach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Kayanan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/29/2013
08/29/2013 08/29/2013 08/29/2013 08/29/2013 08/30/2013 08/30/2013

# Docket Text
1 VERIFIED COMPLAINT (injunctive relief sought) against Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor (Filing fee $ 400 receipt number FTM005048) filed by Ave Maria University. (Attachments: # 1 Exhibit FDA Birth Control Guide, # 2 Civil Cover Sheet)(SLU) (Entered: 08/30/2013)
2 SUMMONS issued as to All Defendants. (SLU) (Entered: 08/30/2013)
3 NOTICE of pendency of related cases per Local Rule 1.04(d) by Ave Maria University. Related case(s): yes (SLU) (Entered: 08/30/2013)
4 MOTION for Diana M. Verm to appear pro hac vice by Ave Maria University. (SLU) Motions referred to Magistrate Judge Unassigned Magistrate. (Entered: 08/30/2013)
5 MOTION for Eric B. Baxter to appear pro hac vice by Ave Maria University. (SLU) Motions referred to Magistrate Judge Unassigned Magistrate. (Entered: 08/30/2013)
6 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by All Divisional Judges on 8/30/2013. (SLU) (Entered: 08/30/2013)
7 ORDER granting 4 Attorney Diane M. Vern's Motion to Appear Pro Hac Vice; granting 5 Attorney Eric B. Baxter's Motion to Appear Pro Hac Vice. Unless already completed, within 14 days from the date of this Order, Ms. Vern and Mr. Baxter shall send to the Clerk's Office, the application for special admission to practice found on

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 5 of 9

08/30/2013
08/30/2013
09/05/2013 09/09/2013 09/09/2013
09/11/2013 09/16/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 09/19/2013 10/22/2013 10/22/2013

the Middle District of Florida's website (www.flmd.uscourts.gov) along with the required $10.00 application fee. The Clerk is directed to add Ms. Vern and Mr. Baxter to the service list. Within 14 days from the date of this Order, Counsel shall register for CM/ECF. Signed by Magistrate Judge Douglas N. Frazier on 8/30/2013. (CAS) (Entered: 08/30/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Diana Verm, appearing on behalf of Ave Maria University (Filing fee $10 receipt number FTM5050.) Related document: 4 MOTION for Diana M. Verm to appear pro hac vice. (BJH) (Entered: 08/30/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Eric Baxter, appearing on behalf of Ave Maria University (Filing fee $10 receipt number FTM5049.) Related document: 5 MOTION for Eric B. Baxter to appear pro hac vice. (BJH) (Entered: 08/30/2013)
8 ORDER of Recusal. Judge John E. Steele recused. The Clerk shall reassign the case to the next available District Judge. Signed by Judge John E. Steele on 9/5/2013. (RKR) (Entered: 09/05/2013)
9 Case reassigned to Judge Sheri Polster Chappell. New case number: 2−13−cv−630−FtM−38UAM. Judge John E. Steele no longer assigned to the case. (kma) (Entered: 09/09/2013)
10 ORDER of recusal. Judge Sheri Polster Chappell is recused and no longer assigned to this case. The Clerk of the Court is directed to reassign the case to another District Judge. Signed by Judge Sheri Polster Chappell on 9/9/2013. (DH) (Entered: 09/09/2013)
11 CASE Reassigned to Judge James S. Moody, Jr. New case number: 2:13−cv−630−FtM−30UAM. (SLU) (Entered: 09/11/2013)
12 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2 issued by Deputy Clerk on 9/16/2013. (SMB) (Entered: 09/16/2013)
13 SUMMONS returned executed by Ave Maria University. United States Department of Health and Human Services served on 9/10/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
14 SUMMONS returned executed by Ave Maria University. United States Department of Labor served on 9/10/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
15 SUMMONS returned executed by Ave Maria University. Jacob Lew served on 9/13/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
16 SUMMONS returned executed by Ave Maria University. Thomas Perez served on 9/10/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
17 SUMMONS returned executed by Ave Maria University. Kathleen Sebelius served on 9/10/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
18 SUMMONS returned executed by Ave Maria University. United States Department of the Treasury served on 9/13/2013, answer due 11/12/2013. (Baxter, Eric) (Entered: 09/19/2013)
19 PROOF of service upon Eric Holder, Attorney General by Ave Maria University (Baxter, Eric) Modified on 9/20/2013 to edit docket text (SLU). (Entered: 09/19/2013)
20 PROOF of service upon U.S. Attorney's Office by Ave Maria University (Baxter, Eric) Modified on 9/20/2013 to edit docket text (SLU). (Entered: 09/19/2013)
21 NOTICE of pendency of related cases re 12 Related case order and track 2 notice per Local Rule 1.04(d) by Ave Maria University. Related case(s): Yes. (Baxter, Eric) (Entered: 10/22/2013)
22 MOTION for summary judgment and memorandum in support by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Baxter, Eric) Modified on 10/23/2013 to edit docket text as counsel advised combined pleading with motion and memorandum

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 6 of 9

10/23/2013
11/05/2013 11/05/2013 11/06/2013 11/15/2013 11/15/2013 11/19/2013
11/19/2013 11/19/2013
11/19/2013
11/19/2013 11/19/2013 11/19/2013 11/20/2013 11/20/2013 11/20/2013 11/20/2013

(SLU). (Entered: 10/22/2013)
23 ENDORSED ORDER denying 22 Motion for summary judgment. The motion is premature. Also, it exceeds the page limitation. Counsel is advised to review this Court's Local Rules. Signed by Judge James S. Moody, Jr on 10/23/2013. (LN) (Entered: 10/23/2013)
24 UNOPPOSED MOTION to extend time to file a response to the complaint by All Defendants. (Pruski, Jacek) Modified on 11/6/2013 to edit docket text (SLU). (Entered: 11/05/2013)
25 ENDORSED ORDER granting 24 Motion to extend time to respond to Complaint. Extension granted through November 19, 2013. Signed by Judge James S. Moody, Jr on 11/5/2013. (LN) (Entered: 11/05/2013)
26 INTERESTED PERSONS ORDER Certificate of interested persons and corporate disclosure statement due by 11/20/2013. Signed by Judge James S. Moody, Jr on 11/6/2013. (SLU) (Entered: 11/06/2013)
27 DEFENDANTS' UNOPPOSED MOTION for leave to file Motion in Excess of Page Limit by All Defendants. (Pruski, Jacek) Modified on 11/18/2013 to edit docket text (SLU). (Entered: 11/15/2013)
28 ENDORSED ORDER granting 27 Motion for Leave to File motion in excess of page limit. Signed by Judge James S. Moody, Jr on 11/15/2013. (LN) (Entered: 11/15/2013)
29 NOTICE by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Filing of Certified Administrative Record (Attachments: # 1 Exhibit Certification, # 2 Exhibit Index)(Pruski, Jacek) (Entered: 11/19/2013)
30 DEFENDANTS' MOTION to Dismiss or, in the Alternative,, MOTION for summary judgment and memorandum in support thereof by All Defendants. (Pruski, Jacek) Modified on 11/20/2013 to edit docket text (SLU). (Entered: 11/19/2013)
31 NOTICE of Appearance of counsel for prospective Amici Curiae, by Maria Kayanan on behalf of American Civil Liberties Union and American Civil Liberties Union of Florida (Kayanan, Maria) Modified on 11/20/2013 to edit docket text (SLU). (Entered: 11/19/2013)
32 MOTION to file brief as Amici Curiae by American Civil Liberties Union and American Civil Liberties Union of Florida. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Kayanan, Maria) Modified on 11/20/2013 to edit docket text (SLU). (Entered: 11/19/2013)
33 MOTION for Brigitte Amiri to appear pro hac vice by American Civil Liberties Union of Florida. (Attachments: # 1 Exhibit Attorney Certification)(Kayanan, Maria) Motions referred to Magistrate Judge Unassigned Magistrate. (Entered: 11/19/2013)
34 MOTION for Daniel Mach to appear pro hac vice by American Civil Liberties Union of Florida. (Attachments: # 1 Exhibit Attorney Certification)(Kayanan, Maria) Motions referred to Magistrate Judge Unassigned Magistrate. (Entered: 11/19/2013)
35 MOTION for Jennifer Lee to appear pro hac vice by American Civil Liberties Union of Florida. (Attachments: # 1 Exhibit Attorney Certification)(Kayanan, Maria) Motions referred to Magistrate Judge Unassigned Magistrate. (Entered: 11/19/2013)
36 ENDORSED ORDER granting 32 Motion for Leave to File Brief. The ACLU file shall its brief. Signed by Judge James S. Moody, Jr on 11/20/2013. (LN) (Entered: 11/20/2013)
37 ENDORSED ORDER granting 33 motion to appear pro hac vice as to Brigitte Amiri. Signed by Judge James S. Moody, Jr on 11/20/2013. (LN) (Entered: 11/20/2013)
38 ENDORSED ORDER granting 34 motion to appear pro hac vice as to Daniel Mach. Signed by Judge James S. Moody, Jr on 11/20/2013. (LN) (Entered: 11/20/2013)
39 ENDORSED ORDER granting 35 motion to appear pro hac vice as to Jennifer Lee. Signed by Judge James S. Moody, Jr on 11/20/2013. (LN) (Entered: 11/20/2013)

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 7 of 9

11/20/2013 11/20/2013 11/20/2013
11/20/2013 11/20/2013 11/29/2013
12/10/2013
12/11/2013
07/30/2014 07/31/2014
08/07/2014 08/07/2014

40 MEMORANDUM in support re 30 Motion to dismiss Motion for summary judgment Amicus Brief filed by American Civil Liberties Union, American Civil Liberties Union of Florida. (Kayanan, Maria) Modified on 11/20/2013 to edit docket text (SLU). (Entered: 11/20/2013)
41 JOINT MOTION for miscellaneous relief, specifically to Set Briefing Schedule by Ave Maria University, Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, and United States Department of the Treasury. (Baxter, Eric) Modified on 11/21/2013 to add filers and edit docket text (SLU). (Entered: 11/20/2013)
42 ENDORSED ORDER granting 41 Motion to set briefing schedule. Plaintiff's cross−motion for partial summary judgment and its combined memorandum in support of its own motion and in opposition to Defendants' motion is due DECEMBER 13, 2013. Defendants' reply in support of their motion and response in opposition to Plaintiff's motion is due JANUARY 10, 2014. Plaintiff's reply in support of its motion is due JANUARY 24, 2014. Signed by Judge James S. Moody, Jr on 11/20/2013. (LN) (Entered: 11/20/2013)
43 CERTIFICATE of interested persons and corporate disclosure statement re 26 Interested persons order by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 11/20/2013)
44 CERTIFICATE of interested persons and corporate disclosure statement re 26 Interested persons order by Ave Maria University. (Baxter, Eric) (Entered: 11/20/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Jennifer Lee, Daniel Mach, Brigitte Amiri, appearing on behalf of American Civil Liberties Union (Filing fee $30 receipt number FTM5392.) Related document: 34 MOTION for Daniel Mach to appear pro hac vice, 33 MOTION for Brigitte Amiri to appear pro hac vice, 35 MOTION for Jennifer Lee to appear pro hac vice. (BJH) (Entered: 11/29/2013)
45 JOINT MOTION for Leave to File Excess Pages memoranda by Ave Maria University, American Civil Liberties Union of Florida, American Civil Liberties Union, Jacob Lew, United States Department of the Treasury, United States Department of Labor, United States Department of Health and Human Services, Kathleen Sebelius and Thomas Perez. (Baxter, Eric) Modified on 12/11/2013 to add filers and edit docket text (SLU). (Entered: 12/10/2013)
46 ORDER: This case shall be administratively stayed during the pendency of the Supreme Court's resolution of the circuit split regarding the Affordable Care Act's contraception coverage. The Clerk of Court shall close this case and terminate any pending motions. Within thirty (30) days after the Supreme Court's resolution of this issue, either party may move to reopen this case. Signed by Judge James S. Moody, Jr on 12/11/2013. (LN) (Entered: 12/11/2013)
47 MOTION to Reopen Case , MOTION for preliminary injunction one hour oral argument requested by Ave Maria University. (Attachments: # 1 Exhibit 1)(Baxter, Eric) Modified on 7/31/2014 to edit docket text (SLU). (Entered: 07/30/2014)
48 ENDORSED ORDER denying without prejudice 47 Plaintiff's Motion to Reopen and for Preliminary Injunction. The motion to reopen shall be filed separately and Plaintiff shall confer with Defendant regarding the motion prior to filing same under Rule 3.01(g). The parties are encouraged to review the scheduling order recently set forth in 2:13−cv−795, a similar case involving Ave Maria School of Law. Signed by Judge James S. Moody, Jr on 7/31/2014. (LN) (Entered: 07/31/2014)
49 MOTION to Reopen Case by Ave Maria University. (Baxter, Eric). Added MOTION for miscellaneous relief, specifically for briefing schedule on 8/7/2014 (SLU). (Entered: 08/07/2014)
50 ORDER: Plaintiff's Unopposed Motion to Reopen and Request for Briefing Schedule (Dkt. 49) is granted. The Clerk of Court is directed to reopen this case. The parties may brief a preliminary injunction motion. Plaintiff's motion for preliminary injunction shall be filed on or before September 12, 2014. Defendants' response to the

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 8 of 9

08/15/2014 09/12/2014 09/22/2014 09/29/2014 09/30/2014 10/02/2014 10/15/2014 10/20/2014 10/27/2014 10/27/2014 10/28/2014 10/28/2014
10/28/2014

motion for preliminary injunction shall be filed on or before September 22, 2014. The parties are allotted 35 pages for argument. The Court will issue a ruling on the motion for preliminary injunction prior to the November 1, 2014 deadline. Signed by Judge James S. Moody, Jr on 8/7/2014. (LN) (Entered: 08/07/2014)
51 Case reassigned to Magistrate Judge Carol Mirando. New case number: 2:13−cv−630−FtM−30CM. Unassigned Magistrate no longer assigned to the case. (kma) (Entered: 08/15/2014)
52 MOTION for preliminary injunction one hour oral argument requested by Ave Maria University. (Attachments: # 1 Exhibit A)(Baxter, Eric) (Entered: 09/12/2014)
53 RESPONSE in Opposition re 52 MOTION for preliminary injunction one hour oral argument requested filed by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 09/22/2014)
54 CONSENT MOTION for leave to file a Reply Memorandum in Support of Motion for Preliminary Injunction by Ave Maria University. (Baxter, Eric) Modified on 9/29/2014 to edit docket text (SLU). (Entered: 09/29/2014)
55 ENDORSED ORDER granting 54 Motion for Leave to File Reply. Plaintiff shall file a reply memorandum not exceeding 15 pages on or before October 2, 2014. Signed by Judge James S. Moody, Jr on 9/30/2014. (LN) (Entered: 09/30/2014)
56 REPLY MEMORANDUM in support of Response to Motion re 52 MOTION for preliminary injunction one hour oral argument requested filed by Ave Maria University. (Baxter, Eric) Modified on 10/3/2014 to edit docket text (SLU). (Entered: 10/02/2014)
57 NOTICE OF HEARING: Oral argument on 52 Motion for preliminary injunction. Motion Hearing set for WEDNESDAY, 10/29/2014 at 3:15 PM in Tampa Courtroom 17 before Judge James S. Moody Jr. Time reserved: One hour. (LN) (Entered: 10/15/2014)
58 NOTICE of Appearance by Adam Grogg on behalf of Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Grogg, Adam) (Entered: 10/20/2014)
59 CANCELLATION NOTICE: The Oral Argument hearing scheduled for 10/29/2014 at 3:15 p.m. is cancelled. (LN) (Entered: 10/27/2014)
60 MOTION for leave to file response to plaintiff's reply by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Grogg, Adam) (Entered: 10/27/2014)
61 RESPONSE in Opposition re 60 MOTION for leave to file response to plaintiff's reply filed by Ave Maria University. (Baxter, Eric) (Entered: 10/28/2014)
62 ORDER: Plaintiff Ave Maria University's Motion for Preliminary Injunction 52 is GRANTED. Defendants are enjoined from enforcing against Ave Maria University the substantive requirements set forth in 42 U.S.C. § 300gg−13(a)(4) and its implementing guidance and regulations, and from assessing fines or taking other enforcement action against Ave Maria University for noncompliance. This preliminary injunction takes effect immediately, and shall remain in effect pending entry of final judgment in this matter or further order of this Court. This case is stayed pending resolution of the appeal in Eternal Word Television Network, Inc. v. Sec'y, U.S. Dep't of Health & Human Servs., et al., No. 14−12696−CC (11th Cir. filed July 28, 2014). The Clerk is directed to administratively CLOSE this case. The parties are directed to notify the Court of the final disposition of Eternal Word Television Network, Inc. v. Sec'y, U.S. Dep't of Health & Human Servs., et al., No. 14−12696−CC (11th Cir. filed July 28, 2014) within 30 days thereof. Signed by Judge James S. Moody, Jr on 10/28/2014. (LN) (Entered: 10/28/2014)
63 ENDORSED ORDER denying as moot 60 Motion for Leave to File. Signed by Judge James S. Moody, Jr on 10/28/2014. (LN) (Entered: 10/28/2014)

Case: 2:13-cv-630 As of: 12/01/2019 03:49 PM EST 9 of 9

12/23/2014 12/29/2014 03/21/2016 08/15/2017 06/08/2018 06/22/2018
06/25/2018
07/09/2018 07/11/2018 07/25/2018 07/26/2018 07/26/2018 09/24/2018 09/25/2018

64 NOTICE OF APPEAL as to 62 Order on Motion for Preliminary Injunction by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. Filing fee not paid. (Pruski, Jacek) (Entered: 12/23/2014)
65 TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 64 Notice of appeal. (slp) (Entered: 12/29/2014)
66 JOINT NOTICE by Ave Maria University and Defendants (Verm, Diana) Modified on 3/21/2016 to add filers and edit docket text (SLU). (Entered: 03/21/2016)
67 Notice of substitution of AUSA. Michele Bennett substituting for Adam Grogg. (Bennett, Michele) (Entered: 08/15/2017)
68 First MOTION to Reopen Case and Dispositive Motion for Entry of Permanent Injunction and Declaratory Relief by Ave Maria University. (Attachments: # 1 Text of Proposed Order)(D'Agostino, Louis) (Entered: 06/08/2018)
69 RESPONSE to Motion re 68 First MOTION to Reopen Case and Dispositive Motion for Entry of Permanent Injunction and Declaratory Relief filed by Jacob Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michele) (Entered: 06/22/2018)
70 ENDORSED ORDER: The Court has reviewed Plaintiff's Unopposed Motion to Reopen and Dispositive Motion for Entry of Permanent Injunction and Declaratory Relief (Dkt. 68) and Defendants' Response (Dkt. 69) thereto. The parties shall confer on an agreed Permanent Injunction and Plaintiff shall file the agreed proposed Permanent Injunction within fourteen (14) days of this Order. If the parties are unable to agree on a proposed Permanent Injunction, they may file separate versions along with a brief explanation describing why that version is appropriate during that same period of time. Signed by Judge James S. Moody, Jr. on 6/25/2018. (SMB) (Entered: 06/25/2018)
71 NOTICE by Ave Maria University re 68 First MOTION to Reopen Case and Dispositive Motion for Entry of Permanent Injunction and Declaratory Relief (Attachments: # 1 Text of Proposed Order)(Verm, Diana) (Entered: 07/09/2018)
72 ORDER: Ave Maria's Motion for Order Reopening Case and Granting Permanent Injunction and Declaratory Relief (Dkt. 68) is GRANTED. The Clerk of Court is directed to close this case. (SMB) (Entered: 07/11/2018)
73 Unopposed MOTION for Final judgment by Ave Maria University. (Attachments: # 1 Text of Proposed Order)(Verm, Diana) (Entered: 07/25/2018)
74 ENDORSED ORDER granting 73 Ave Maria University's Unopposed Motion for Entry of Final Judgment. An Order of Final Judgment will be entered separately. Signed by Judge James S. Moody, Jr. on 7/26/2018. (SMB) (Entered: 07/26/2018)
75 ORDER OF FINAL JUDGMENT. (See Order for details.) Signed by Judge James S. Moody, Jr. on 7/26/2018. (SMB) (Entered: 07/26/2018)
76 Joint MOTION to extend time to October 9, 2018 for deadlines pertaining to fees and costs by Ave Maria University. (Attachments: # 1 Text of Proposed Order)(Verm, Diana) (Entered: 09/24/2018)
77 ENDORSED ORDER granting 76 Joint Motion for Extension of Deadlines Pertaining to Process for Awarding Attorney Fees and Costs. The new due date for a Motion for Fees and Costs is October 9, 2018. Signed by Judge James S. Moody, Jr. on 9/25/2018. (AD) (Entered: 09/25/2018)