Case 1:14-cv-00379-GBL-IDD Document 1 Filed 04/11/14 Page 1 of 19 PageID# 1

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

filed

MEDIA RESEARCH CENTER, a Virginia non-stock corporation,

Plaintiff

V.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of
Health and Human Services
200 Independence Avenue, SW Washington, DC 20201

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
200 Independence Avenue, SW Washington, DC 20201
JACOB W. LEW, in his official capacity as the Secretary of the
United States Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Case No. „jiW00379
fcrSLOoo)

UNITED STATES DEPARTMENT OF THE TREASURY
1500 Pennsylvania Avenue, NW Washington, DC 20220
THOMAS E. PEREZ, in his official
capacity as the Secretary of the United States Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

UNITED STATES DEPARTMENT
OF LABOR
200 Constitution Avenue, NW
Washington, DC 20210

Defendants.

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COMPLAINT
For its Complaint against the Defendants, Plaintiff MEDIA RESEARCH CENTER («MRC" or "Plaintiff) states as follows:
Introduction
1. MRC challenges the applicability and constitutionality of regulations under the 2010 Patient Protection and Affordable Care Act that require certain employers to provide insurance coverage for contraceptive, abortifacient, and sterilization procedures.
2. The regulations have carve-outs for "religious organizations" and certain other "eligible organizations" that oppose providing these services.
3. To be an "eligible organization," the entity must: (1) oppose on religious grounds the provision of some or all of these services, (2) operate as a nonprofit, (3) hold itself out as a religious organization, and (4) self-certify that it meets the first three conditions. 45 C.F.R. § 147.131(b).
4. MRC is a nonprofit organization whose mission, in part, is to expose and critique media bias against traditional American Judeo-Christian religious beliefs. It opposes on religious grounds the provision of coverage for contraceptive, abortifacient, and sterilization services. And it has self-certified those facts on a form provided by the Department of Labor.
5. MRC has sought assurance from Defendants that it qualifies as an "eligible organization."
6. Defendants, however, have refused to provide such assurance.

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7. Rather than hazard the possibility of a later determination that it is not an "eligible organization"—^with concomitant fines for having failed to provide required coverage—MRC has brought this action seeking a declaration
of its status.
8. In the alternative, MRC seeks a declaration that, by exempting some—^but not all—religious entities, the regulations unconstitutionally entangle the Government in questions of religious doctrine and organization.
9. In particular, the regulations require the Government to determine: (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to providing the relevant services is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.
10. Such entanglement violates the Establishment Clause of the First
Amendment.
11. For this alternate reason, the Court should enjoin enforcement of the regulations against MRC.
Parties
12. Plaintiff MRC is a Virginia non-stock corporation headquartered in Reston, Virginia. (Affidavit of David Martin attached hereto as Exhibit 1 at H 2) It is a nonprofit that operates under § 501(c)(3) of the Internal Revenue Code. {Id.)
13. MRC is governed exclusively by a Board of Directors, whose members are selected by a majority of the then-members of the Board.
14. MRC employs more than 50 employees.

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15. Defendant United States Department of Health and Human Services ("HHS") is an executive agency of the United States and is responsible for promulgating, administering, and enforcing the Mandate.
16. Defendant Kathleen Sebelius is the Secretary of the Department of
Health and Human Services. i
17. Defendant United States Department of the Treasury is an executive agency of the United States and is responsible for promulgating, administering, and enforcing the Mandate.
18. Defendant Jacob W. Lew is the Secretary of the Department of Treasury.
19. Defendant United States Department of Labor is an executive agency of the United States and is responsible for promulgating, administering, and enforcing the Mandate.
20. Defendant Thomas E. Perez is the Secretary of the Department of
Labor. Jurisdiction and Venue
21. This is an action for declaratory relief under 28 U.S.C. §§ 2201 and
2202.
22. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1346(a)(2).

1

On the eve of the filing of this Complaint, Secretary Sebelius announced her resignation

as Secretary of the Department of Health and Human Services. As Secretary Sebelius is sued

in her official capacity, pursuant to Fed. R. Civ. P. 25(d), her successor assumes/becomes

substituted as a defendant by operation of law.

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23. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
Facts
MRC's Defense ofJudeo-Christian Religious Beliefs Against the Media Elite 24. MRC is a research and educational organization whose mission is
to expose liberal bias in the news media and popular culture. (Ex. 1 at H 2.) 25. L. Brent Bozell, III, founded the organization in 1987 and remains
its president. (Affidavit of L. Brent Bozell, III attached hereto as Exhibit 2 at 112)
26. Bozell is a devout Catholic with deep roots in the conservative movement. (Id. at 1, 16.) He is one of ten children. (Id. at H 2.) His father was a conservative activist and a close friend and college debating partner of William F. Buckley, Jr. (The late Mr. Buckley also was Bozell's uncle.) (Id. at H 3.) Bozell's father founded Triumph^ a Catholic magazine advocating conservative causes. (Id. at H 3.) These included a strong opposition to birth control and abortion. (Id.) One of Bozell's brothers is a priest. (Id.)
27. Bozell, a syndicated columnist, founded MRC to combat media bias against Judeo-Christian ideals and conservatism. (Id. at 8, 11.)
28. In the quarter centuiy since its founding, MRC has become the nation's premier media watchdog.
29. MRC accomplishes its mission through several programs. 30. MRC's "News Analysis Division" employs news analysts who monitor major national televised and print broadcasts. MRC compiles and publishes the results of its analyses on its website, in e-mail blasts, and in

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blogs. It identifies and exposes the biases of influential journalists, celebrities, and other public figures—conferring "DisHonors Awards" on the worst
offenders.
31. MRC's "Business 85 Media Institute" is dedicated to correcting media bias against free enterprise and to promoting a fair portrayal of the business community. Its "Balance Sheet" e-mail newsletter analyzes top news issues from a free-market perspective.
32. MRC's "CNSNews.com" website is an online news resource for
conservatives, producing original reporting and presenting breaking news. It distributes a daily "E-Brief containing headlines and exclusive stories.
33. Finally, and most relevant here, MRC's "Culture and Media Institute" ("CMI") serves as a bulwark against media assaults on social conservatism and religious faith. Through its various publications, it promotes a fair portrayal of social conservatism and religious faith.
34. In its special report "Rewriting the Bible: The Gospel According to Liberals," for example, MRC "analyzed the various ways media liberals twist, selectively edit and otherwise misuse the Bible's text to justify nearly any immoral or profane behavior." ("Rewriting the Bible," attached hereto as Exhibit 3, at 2.)
35. The report catalogs the various ways that "[w]riters, politicians and entertainers have made concerted effort to alter the content and message of the Bible, substituting the gospel of liberalism for the Gospel of Jesus Christ." (Id. ate.)

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36. Among other things, it cites a claim by writer Nynia Chance that "there's times where the Bible states God commands that one [abortion] take place." {Id. at 5)
37. The report also cites examples where the "entertainment industry . . . skewer[ed] the Christian holy book in order to mock it." (Id.) For instance, the television show "GCB"2 mocked the Ten Commandments by reframing one of the commandments as "Thou shalt not covet they neighbor's husband . . . Unless he's really hot." (Id.)
38. "Rewriting the Bible" also critiques liberal attempts to use the Bible as a vehicle for spreading leftist political ideology. It notes that the "Christian vision of the Bible emphasizes God and His message of salvation" and quotes Dr. Michael Youssef, founder of a Christian ministiy, who states that using the Bible to justify one's "own desires and own political positions" is an "unpardonable sin." (Id. at 8.) The report asserts that "a spiritual understanding of the Bible contradicts the political gospel of the religious left." (Id.)
39. Other distortions exposed by "Rewriting the Bible" include a claim by Erin Gloria Ryan, a contributor to the liberal site Jezebel, that "there are a lot more passages in the Bible that imply (or insist) that the big man upstairs doesn't consider a zygote to be the same sort of being with the same value as,

2

The television program referred to as "GCB" was also previously known by the title

"Good Christian Bitches." See Ex. 3 at 16.

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say, a mailman or a trapeze artist that there are passages that mention
abortion."
40. The report concludes that "Modem liberals regularly dismiss the Bible as repressive and irrelevant to modernity, and excoriate Christian conservatives for believing, in Dan Savage's words, ^bullshit in the Bible.'" But it warns that some liberals opportunistically become ersatz Bible scholars if they think the Bible "can be used as a 'tool of progressive social change."' (Id. at 20.) A central part of MRC's mission is to expose and combat these false
exegeses.
41. Another special report by MRC, titled "Apostles of Atheism: How the Broadcast and Print Media Helped Spread the Gospel of Godlessness in 2007," critiques the liberal media's attempt to advance the cause of atheists. ("Apostles of Atheism," attached hereto as Exhibit 4.)
42. This report examined stories featuring atheists and found that the media's use of "atheism as a foil against Christianity, but not against any other religion, suggests an anti-Christian bias." (Id. at 10)
43. In particular, "the media did not scrutinize atheism the same way it scrutinizes Christianity" and often inserted atheist critiques in stories on Christian topics, but not vice-versa. (Id. at 2.)
44. The report admonished that "|j]ournalists who look at America's majority religion through a skeptical prism should also apply their critical faculties to atheism." (Id. at 10.)
8

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45. In 2012, the MRC published a special report titled "Secular Snobs: Documenting the National Media's Long-Standing Hostility to Religion," which collected and categorized 45 prominent instances in which national media have exhibited contempt for organized religion. ("Secular Snobs," attached hereto as Exhibit 5.)
46. The report shows, inter alia, how the media relentlessly has: (1) characterized religious believers as simple-minded and ignorant, clinging to religion as a crutch, (2) characterized the Republican Party as attempting to create a Christian theocracy, (3) characterized the so-called Christian Right as inciting violence against gays and abortionists, and (4) characterized Pope Benedict XVI as an enforcer of anachronistic orthodoxy.
47. Another special report, titled "Roe Warriors: The Media's ProAbortion Bias," addresses the unbalanced perspective that national media provides on the abortion debate. ("Roe Warriors," attached hereto as Exhibit 6.)
48. In addition to putting out special reports on issues concerning the media and religion, MRC regularly posts stories on its site and distributes emails on the topic.
49. Recently, for instance, MRC posted a story critiquing an article in Time by a "theologically confused" pastor who argued that God had a feminine
9

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side—a view that contradicts 5,000 years of teachings of the major monotheistic religions.^
50. Another recent article castigates a promotion by National Public Radio that encouraged listeners to "Get Lucky On St. Patrick's Day With These 25 RfisB Songs." Many of the songs were sexually explicit (they included, among others. Prince's "Erotic City"). St. Patrick's day is, of course, a celebration of the patron saint of Ireland.
51. In short, a core part of MRC's mission is to safeguard and defend religion in general—and Judeo-Christian beliefs, in particular—from the onslaught of anti-religious distortions in the media.
Statutory and Regulatory Background 52. In 2010, Congress enacted the "Patient Protection and Affordable Care Act" ("ACA") Pub. L. 111-148, 124 Stat. 119. 53. The ACA requires that employer group health insurance plans offer coverage for "preventive care and screenings" for women pursuant to "comprehensive guidelines supported by the Health Resources and Services Administration" ("HRSA Guidelines"). 42 U.S.C. § 300gg-13(a)(4). This coverage must be offered without "cost sharing." (Id.) 54. The penalties for failing to provide the required coverage are stiffamounting to $100 per day for each affected individual. 26 U.S.C.A. § 4980D(b)(l).

3

See http:/ /www.mrc.org/articles/tiine-makes-god-she-pc-histoiy-month (accessed

March 21, 2014).

10

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55. In establishing the HRSA Guidelines, Defendant HHS adopted the preventive-care recommendations of the Institute of Medicine, a non governmental organization. 75 Fed. Reg. 41,726 (July 19, 2010).
56. HRSA Guidelines require, inter alia, that employers provide "all Food and Drug Administration (FDA)-approved contraception methods, sterilization procedures, and patient education and counseling for women with reproductive capacity" (Contraception Mandate 78 Fed. Reg. 39,870 (July 2, 2013).
57. The FDA-approved contraception methods include the following abortifacients: (1) "Plan B" (Levonorgestrel), (2) "Ella" (ulipristal acetate), and (3) intrauterine devices ("lUDs"). The FDA-approved contraception methods also include surgical sterilization.
58. On August 3, 2011, Defendants approved an "Interim Final Rule" that exempted certain "religious employers" from the Contraception Mandate. 76 Fed. Reg. 46,621.
59. To be eligible for this exemption, however, an organization needed to satisfy four requirements: (1) the inculcation of religious values is the purpose of the organization, (2) the organization primarily employs persons who share the religious tenets of the organization, (3) the organization serves primarily persons who share the religious tenets of the organization, and (4) the organization is a nonprofit organization as described in § 6033(a)(1) and § 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,626.
11

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60. Section 6033(a)(1) and § 6033(a)(3)(A)(i) of the Internal Revenue Code describe an exception for "churches, their integrated auxiliaries, and conventions or associations of churches" and "the exclusively religious activities of any religious order." 26 U.S.C. § 6033(a)(3).
61. MRC does not qualify under this narrow exception because it is not a church, an integrated auxiliary of a church, or a religious order.
62. Responding to public outcry, Defendants clarified the "religious employer" requirements and also created a new exception to the Contraception Mandate for "eligible organizations." 78 Fed. Reg. 39,870 (July 2, 2013).
63. To qualify as an "eligible organization," the organization must: (1) oppose on religious grounds the provision of some or all of the services required by the Contraception Mandate, (2) operate as a nonprofit, (3) hold itself out as a religious organization, and (4) self-certify that it meets the first three conditions. 45 C.F.R. § 147.131(b).
64. The Department of Labor's Employee Benefits Security Administration ("EBSA") has published EBSA Form 700 for entities to selfcertify as "eligible organizations." A copy of EBSA Form 700 is attached hereto
as Exhibit 7.
65. As set forth below, MRC believes that it is an "eligible organization" under 45 C.F.R. § 147.131(b).
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MRC's Opposition to Providing Contraception and Abortion Services 66. MRC historically has provided its employees with group health insurance coverage. (Ex. 1 at K 3.) It has excluded coverage for contraception, abortifacient, and sterilization services.'^ [Id. at UK 4, 8-9.) 67. MRC currently offers its employees group health insurance through a self-insured plan ("Plan") whose claims are administered by a thirdparty administrator. 68. MRC's plan is not a grandfathered plan.s 69. The plan year for MRC's next employee health plan begins on May 1, 2014.6 70. The Plan excludes coverage for "birth control services, supplies or devices, including birth control pills, regardless of whether such pills are to be used for contraceptive or medical reasons." 71. The Plan also excludes coverage "for services, supplies or treatment for surgical sterilization, or the reversal of surgical sterilization procedures."

^

Prior to 2010, MRC believed the services were excluded from its health plan. In or

around 2010, MRC discovered that its health insurance provider was providing the services.

MRC promptly demanded that the policy be changed to exclude them, but the provider refused

to exclude the services. MRC subsequently made the decision to change insurance carriers

and become self-insured to ensure that the services were excluded. (Ex. 1 at 8-9.)

5

Grandfathered plans are exempt from the Contraception Mandate. 75 Fed. Reg.

41,729.

6

Up to now, MRC has been operating under a "temporary enforcement safe harbor" that

delayed implementation of the Contraception Mandate to qualifying organizations until the first

plan year after January 1, 2014. See http://www.cms.gov/CCIIO/Resources/Regulations-

and-Guidance/Downloads/preventive-services-guidance-6-28-2013.pdf (accessed March 26,

2014). The eligibility requirements for the safe harbor differ from those required to qualify

under either the "religious employer" exemption or the "eligible organization" exemption.

13

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72. MRC excludes these services because it opposes, on religious grounds, the provision of contraceptive, abortifacient, and sterilization services to its employees. (Ex. 1 at n 4-7.)
73. MRC's Board adopted a "Resolution on MRC Sincerely Held Beliefs" addressing the subject ("Resolution"). A copy of the Resolution is attached
hereto as Exhibit 8.
74. The Resolution notes that "the Corporation offers a health care benefit to its employees for two primaiy reasons: (1) the Corporation believes that it is a basic civil, ethical and moral obligation to provide low or no cost health insurance coverage to its employees; and (ii) providing a health insurance benefit allows the Corporation to attract the best and brightest employees available to help advance the Corporation's charitable and
educational mission . . . ."
75. The Resolution further states that "[T]he Corporation and its Directors embrace sincerely held religious, moral or ethical beliefs that to provide, either indirectly or directly, coverage of abortion, abortifacients, sterilization services, contraceptives (other than those contraceptives prescribed with the intent of treating another medical condition, and not to prevent pregnancy) and related counseling and education services or to mandate the provision of the aforementioned services in violation of such beliefs, is a grave and moral sin which would violate the very core of the Corporation and Board Member's sincerely held religious, civil, ethical or moral standards of human life and human dignity."
14

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76. MRC staff, too, oppose the Contraception Mandate. The overwhelming majority of MRC's employees have signed a "Statement of Media Research Center Staff Regarding Mandated Forced Funding of Abortion" ("Statement"). A copy of the Statement is attached hereto as Exhibit 9.
77. The Statement recites: "We the Staff of Media Research Center do affirm that we believe abortion to be abhorrent and immoral. We believe the
Obamacare requirement that Media Research Center pay for abortion or abortifacient services to be equally immoral, and would require us and our employer to make an immoral choice between violating the law or violating our fundamental beliefs, faith and morals. We believe that the Media Research Center has espoused, and continues to espouse this position which is why we ask MRC leadership to ensure that it and its employees we [sic] will not be forced to pay for such immoral services."
78. MRC has self-certified as an "eligible organization" by completing and executing EBSA Form 700. A copy of MRC's executed self-certification is
attached hereto as Exhibit 10. COUNT ONE
(Declaratory Judgment that MRC is an ''Eligible Organization'*) 79. MRC hereby incorporates the allegations of paragraphs 1-78 as if set forth fully herein. 80. MRC believes that it is an "eligible organization," for purposes of 45 C.F.R. § 147.131(b), because: (1) it is a nonprofit organization, (2) organized to defend Judeo-Christian beliefs against attacks by the media and popular culture, that (3) opposes providing the services required by the Contraception
15

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Mandate on religious grounds, and that (4) has self-certified its compliance with the requirements of 45 C.F.R. § 147.131(b)(l)-(3).
81. MRC has asked Defendants, through their counsel at the Department of Justice, to acknowledge that MRC is an "eligible organization" under 45 C.F.R. § 147.131(b). A copy of MRC's letter requesting this acknowledgment is attached hereto as Exhibit 11.
82. Defendants have refused to acknowledge MRC's status as an "eligible organization."
83. MRC has brought this declaratory-judgment action to resolve the issue before MRC becomes subject to the Contraception Mandate's coverage requirements.
84. Without such resolution, the ruinous fines imposed for noncompliance with the Contraception Mandate will hang over MRC like a
Damoclean sword.
85. Plaintiffs have no adequate remedy at law. 86. Accordingly, MRC requests that this Court enter an order: (1) declaring that MRC is an "eligible organization" under 45 C.F.R. § 147.131(b) and, thus, not required to comply with the Contraception Mandate, and (2) granting all other necessary and proper relief.
COUNT TWO
(Declaratory Judgment that the Contraception Mandate violates the Establishment Clause of the First Amendment) 87. MRC hereby incorporates the allegations of paragraphs 1-86 as if set forth fully herein.
16

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88. The First Amendment's Establishment Clause bars the
Government from taking sides on religious questions and from entangling itself in religious matters.
89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.
90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.
91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.
92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).
93. MRC serves the religious beliefs of its founder and President, its Board of Directors, and the overwhelming majority of its employees by defending those beliefs from attacks by the media elite.
94. MRC's mission of defending traditional American Judeo-Christian beliefs is an expression of those religious beliefs as much as a soup kitchen or
17

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homeless shelter organized by religious believers is an expression of the
religious beliefs of its organizers.
95. By authorizing the Government to determine whether a particular organization is a "religious employer" or an "eligible employer," and by weighting the inquiry against nontraditional religious organizations, the Contraception Mandate violates the Establishment Clause—it involves
excessive governmental entanglement with religious teachings, values, views,
and events.
96. By authorizing and implementing the Contraception Mandate,
Defendants have violated 42 U.S.C. § 1983. 97. Accordingly, MRC requests that this Court enter an order
(1) declaring that the Contraception Mandate, and the exceptions thereto, violate the Establishment Clause of the First Amendment, (2) enjoining Defendants from enforcing the Contraception Mandate against MRC, and (3) granting all other necessary and proper relief.
PRAYER FOR RELIEF
WHEREFORE, MRC respectfully requests that this Court:
1. Enter a declaratory judgment that MRC qualifies as an "eligible organization" under 45 C.F.R. § 147.131(b), and, as such, MRC does not have to provide coverage for contraceptives, abortifacients, or sterilization procedures under its group health insurance plan;
2. Enter a declaratory judgment that the Contraception Mandate violates MRC's constitutional rights;
3. Enter an order enjoining Defendants from enforcing the Contraception Mandate against MRC;
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4. Award attorney's fees under 42 U.S.C. § 1988; and 5. Afford all other relief that the Court deems just and proper.
MEDIA
Counsel
David A. Warrington (VSB #72293) W. Michael Holm (VSB #21035) Laurin H. Mills (VSB #79848) C. Matthew Haynes (VSB #77896) Paris R. Sorrell (VSB #80953) LeClairRyan, A Professional Corporation
2318 Mill Road Suite 1100
Alexandria, VA 22314
Phone: 703.684.8007 Fax: 703.684.8075
david. warrington@leclainyan. com michael.holm@leclairryan.com laurin. mills@leclairryan. com matthew.haynes@leclainyan.com paris.sorrell@leclairryan.com Joseph M. Rainsbuiy (VSB #45782) 1800 Wells Fargo Tower
Drawer 1200
Roanoke, VA 24006 US
Phone: 540.510.3000 Fax: 540.510.3050
joseph.rainsbury@leclairryan.com Counselfor Media Research Center
19

 
 Case 1:14-cv-00379-GBL-IDD Document 47 Filed 08/01/14 Page 1 of 14 PageID# 2241

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

MEDIA RESEARCH CENTER,

Plaintiff,

v.

CASE NO. 1:14-CV-379(GBL/IDD)

KATHLEEN SEBELIUS, et «/.,

Defendants.

AMENDED MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Media Research Center ("MRC")'s Motion for Preliminary Injunction (Doc. 5). MRC seeks to enjoin the Departments of Labor,

Treasury, and Health and Human Services and their respective Secretaries from imposing fines against MRC for any violation of 42 U.S.C. § 300gg-13 ("Coverage Mandate" or "Mandate"), a

regulation issued subsequent to the Patient Protection and Affordable Care Act, Pub. L. No. 111-

148, 124 Stat. 119 (2010). The Mandate requires group health insurance plans to cover contraception, sterilization, and related counseling. See 42 U.S.C. § 300gg-13(a)(4). MRC argues that it should not be required to cover these services and seeks a declaratory judgment to that effect, first, on the ground that it falls within the Mandate's "eligible organization" exemption

(Count I) and second, on the alternative ground that the Mandate violates the Establishment Clause of the First Amendment (Count II).

There are three issues before the Court. The first issue is whether MRC has standing to seek declaratory judgment that it falls within the "eligible organization" exemption (Count I) where MRC alleges, by way of injury, that its uncertainty over the exemption exposes it to potentially ruinous fines. The Court holds that MRC lacks standing to pursue Count I, such that

Case 1:14-cv-00379-GBL-IDD Document 47 Filed 08/01/14 Page 2 of 14 PageID# 2242
no "case" or "controversy" exists, because uncertainty over a regulatory interpretation and the mere possibility of fines do not suffice as Article III injury. The second issue is whether the case presents an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), where MRC alleges that the Government might one day seek to fine MRC for failing to cover contraceptive services, despite MRC's self-certification that it is statutorily exempt from the Mandate. The Court holds that the case does not present an "actual controversy" within the meaning of the Declaratory Judgment Act for the same reasons that it fails to present a "case" or "controversy" within the meaning of Article III. The third issue is whether MRC's motion should
be granted on the strength of its Establishment Clause argument where MRC fails to explain how the Mandate establishes a religion and instead argues that the Mandate should be deemed void
for vagueness. The Court DENIES the motion because the burden is on MRC to make a clear
showing that it will succeed on its Establishment Clause claim, and here the regulation does not establish a religion merely because the regulation is vague.
For these reasons, the Court DENIES MRC's Motion for Preliminary Injunction and DISMISSES Count I WITHOUT PREJUDICE for lack of subject matter jurisdiction.
I. BACKGROUND
MRC brings this declaratory-judgment action against the Secretaries of the Departments of Labor, Treasury, and Health and Human Services (collectively "Departments") and their respective Departments over a regulation promulgated by the Departments exempting "eligible organizations" from the provision of contraception, sterilization, and related counseling ("Coverage Mandate" or "Mandate"). MRC is a nonprofit organization whose stated mission is to expose liberal bias in the news media and popular culture. (Doc. 1, ^ 24.) MRC's Culture and Media Institute aims to "promote[] a fair portrayal of social conservatism and religious faith" by

Case 1:14-cv-00379-GBL-IDD Document 47 Filed 08/01/14 Page 3 of 14 PageID# 2243
reporting on and critiquing anti-religious statements and sentiments in the mainstream media. {Id. 1 33.) Representative examples of the reports produced include "Rewriting the Bible: The Gospel According to Liberals" and "Secular Snobs: Documenting the National Media's Long standing Hostility to Religion." {Id. 1ffl 34, 45.) In Count I of its complaint, MRC seeks a declaratory judgment that it falls within the "eligible organization" exemption to the Mandate. {Id. 1fl[ 79-86.) Alternatively, in Count II, it seeks a declaratory judgment that the Mandate violates the Establishment Clause of the First Amendment. {Id. ffl| 87-97.)
MRC and the majority of its employees maintain religious objections to the provision of contraception, abortifacient, and sterilization procedures. MRC's Board of Directors has adopted a resolution attesting to its religious objections. {Id. fl 73-75.) The majority of MRC's employees has adopted a similar resolution. {Id. ffl[ 76-77.) The Government has not challenged the sincerity of these objections or the religious beliefs underlying them. To promulgate its beliefs, MRC maintains a self-insured group health plan for its employees. {Id. K 67.) This plan purposefully excludes coverage for contraceptive and other preventative services, including sterilization. {Id. fl 70-71.)
MRC alleges that the Coverage Mandate of the Patient Protection and Affordable Care Act ("ACA"), Pub. L. No. 111-148, 124 Stat. 119 (2010), threatens MRC's ability to adhere to its religious beliefs and exclude coverage for the objected-to services. The ACA requires group health insurance plans to cover a number of preventative medical services at no charge to the patient. 42 U.S.C. § 300gg-13. Among the covered services are women's "preventative care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [('HRSA').]" Id. § 300gg-13(a)(4).

Case 1:14-cv-00379-GBL-IDD Document 47 Filed 08/01/14 Page 4 of 14 PageID# 2244
Because no HRSA guidelines existed at the time of the ACA's enactment, the Department of Health and Human Services ("HHS") commissioned the nongovernmental Institute of Medicine ("IOM") to recommend guidelines. The guidelines recommended by IOM and adopted by HHS require group health plans to cover "all Food and Drug Administration approved contraception methods, sterilization procedures, and patient education and counseling for women with reproductive capacity." 77 Fed. Reg. 8725 (Feb. 15, 2012) (internal quotation marks omitted). FDA-approved contraceptive methods include Plan B, Ella, and intrauterine devices. (Doc. 1,1)57.)
On August 3, 2011, the Departments issued an interim final regulation exempting "religious employers" from the requirement to cover contraceptives. 76 Fed. Reg. 46621 (Aug. 3, 2011). To qualify for the "religious employer" exemption, the employer had to meet certain requirements, including having the inculcation of religious values as its purpose. Id. at 46623. The "religious employer" exemption was made final on February 10, 2012, with the criteria for the "religious employer" exemption unchanged. Id.
Later, on July 2, 2013, following a notice-and-comment period, the Departments amended the final regulation to clarify the "religious employer" exemption and create a new exemption for "eligible organizations." The purpose of the "eligible organization" exemption is, in part, to "protect[] certain nonprofit religious organizations with religious objections," who did not fall within the "religious employer" exemption. 78 Fed. Reg. 39870 (July 2, 2013). To qualify as an "eligible organization," the organization must (i) oppose the coverage of some or all of the contraceptive services covered by the Mandate on religious grounds, (ii) operate as a nonprofit, (iii) "hold[] itself out as a religious organization," and (iv) self-certify that it meets the first three requirements. 45 C.F.R. § 147.131(b)(4) (2013). HHS and the Department of Labor

Case 1:14-cv-00379-GBL-IDD Document 47 Filed 08/01/14 Page 5 of 14 PageID# 2245
issued a self-certification form, ESBA Form 700, for employers seeking to use the "eligible organization" exemption. MRC has self-certified as an "eligible organization" by completing and executing ESBA Form 700. (Doc. 1, H78.)
An eligible organization provides the self-certification to its insurer if it is fully insured or its third-party administrator ("TPA") if it is self-insured like MRC. Once the self-certification is provided, the eligible organization cannot be required to pay for contraception. Rather, the insurer or TPA must "[e]xpressly exclude contraceptive coverage from the group health insurance coverage" and "[p]rovide separate payments for any contraceptive services" but may not "impose any cost-sharing requirements ... or impose any premium, fee, or other charge . . . on the eligible organization[.]" 45 C.F.R. § 147.131(c). Additionally, the insurer or TPA may not require any documentation from the eligible organization regarding its status besides the selfcertification. Id. § 147.131(c)(1). The eligible organization is not required to file its selfcertification with the Departments, but it must keep the self-certification on file and make the self-certification "available for examination upon request." 78 Fed. Reg. 39870.
Failure to comply with the ACA's requirements for group health plans, including coverage of the contraception services, results in a tax of "$100 for each day .. . with respect to each individual to whom such failure relates." 26 U.S.C. § 4980D(b)(l). However, the ACA contains several restrictions on the amount of tax that can be imposed, including prohibitions on taxes for "failure[s] not discovered exercising reasonable diligence" and "failures corrected within certain periods" and caps on taxes imposed for "unintentional failures." See id. §
4980D(c).

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II. STANDARD OF REVIEW
A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quotation omitted). To obtain a preliminary injunction, the plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def Council Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. FEC, 607 F.3d 355, 355 (2010) (reissuing Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 345-47 (4th Cir. 2009).
Additionally, the party seeking injunctive relief is required to make a clear showing that he or she is likely to succeed on the merits at trial. Real Truth About Obama, 575 F.3d at 346. The party seeking injunctive relief also bears the burden of proving that each factor supports granting relief. Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991).
III. ANALYSIS
Plaintiff Media Research Center ("MRC") asks the Court to preliminarily enjoin the Departments of Labor, Treasury, and Health and Human Services ("the Departments" or "the Government") and their respective Secretaries from fining MRC for any violation of the Coverage Mandate. At the same time, MRC alleges that the Mandate exempts MRC from any requirement to abide by its terms. The Government has not challenged MRC's self-exemption, and MRC presents nothing to suggest that a challenge is likely in the future.
MRC's injury is neither a set of "certainly impending" fines nor a forced choice between
religious imperatives and regulatory obligations. Properly understood, MRC's injury is its subjective uncertainty over whether it falls within an exemption to the Mandate. The Court holds

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that MRC's subjective uncertainty over a regulatory interpretation is not Article III injury-in-fact and thus, MRC lacks standing to pursue Count I of its complaint. Additionally, the Court holds that MRC fails to make a clear showing that it is likely to succeed on Count II, MRC's remaining Establishment Clause claim. Thus, the Court DENIES MRC's motion and DISMISSES Count I WITHOUT PREJUDICE for lack ofjurisdiction.
The Court divides its analysis into three parts. First, the Court explains why MRC fails to establish standing as to Count I of the complaint, requiring Count I's dismissal for lack of jurisdiction. Second, the Court explains why the case fails to present an "actual controversy" within the meaning of the Declaratory Judgment Act, 28 U.S.C. § 2201(a). Third, the Court explains why MRC has not established a likelihood of success on the merits of Count II, requiring denial of its motion for a preliminary injunction.
A. Absence of Certainly Impending Injury Requires Dismissal of Count I.
First, the Court finds that MRC's failure to allege a "certainly impending" injury requires dismissal of Count I on jurisdictional grounds. MRC argues that it can establish Article III injury-in-fact because of "[t]he potential that the Government might one day seek to impose ruinous fines of $12,500 per day on MRC." (Doc. 28, at 5.) However, the Supreme Court has made clear that "threatened injury must be certainly impending to constitute injury in fact" and that "[allegations of possible future injury are not sufficient." Clapper v. Amnesty Int'l, USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks omitted) (citation omitted). Because MRC alleges no specific facts to move the specter of ruinous fines from "merely possible" to "certainly impending," the Court holds that MRC has not established injury-in-fact. Thus, MRC lacks standing to pursue Count I, requiring Count Fs dismissal for lack ofjurisdiction.

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The requirement of standing "is an essential and unchanging part of the case-or-
controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). To establish standing, a plaintiff must allege that "(1) it has suffered an 'injury in fact'
that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal
quotation marks omitted).1 The standing inquiry in this case turns on the injury-in-fact
requirement. Specifically, it turns on whether the injury alleged—the imposition of ruinous
fines—is "actual or imminent," which would meet Article Ill's requirements, or "conjectural"
and "hypothetical," which would fail to meet Article Ill's requirements.
The Court finds that the alleged injury is necessarily conjectural because the imposition
of ruinous fines depends on a "highly attenuated chain of possibilities," Clapper, 133 S. Ct. at
1148. Specifically, MRC's fear of ruinous fines depends on (i) the Government interpreting the
"eligible organization" exemption in a manner that keeps organizations like MRC outside its
1Following the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.
Ct. 2751 (2014), the Court permitted both parties to brief the Court on the potential impact of Hobby Lobby on MRC's Motion for Preliminary Injunction. {See Doc. 43.) In its brief, MRC argues that when the Supreme Court enjoined enforcement of the Coverage Mandate against Wheaton College, see Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014), the Supreme Court made an implicit suggestion that standing exists merely by a nonprofit's letter to the Government stating that it "holds itself out as religious" and has "religious objections" to contraception. {See
Doc. 44, at 2, 6.)
The Court rejects such speculation. In granting the injunction, the Supreme Court did not analyze whether Wheaton College had standing or, indeed, whether Wheaton College labored under Article III injury. Thus, the Court will not interpret the Supreme Court's opinion as making determinations, implicit or explicit, on the requirements for standing. Additionally, the Supreme Court would not haveneeded to make any new rule of standing since Wheaton College, unlike MRC, objected both to paying for contraception in accordance with the Mandate and to complying with the statutory requirements for self-exemption, see Wheaton Coll., 134 S. Ct. at 2808-09, thus making the imposition of fines "certainly impending."

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ambit, (ii) the Government requesting MRC's self-certification, (iii) the Government deeming MRC's self-certification incorrect upon examination, and (iv) the Government taxing MRC a catastrophic amount despite the ACA's limitations on taxes for "unintentional failures," "failurefs] not discovered exercising reasonable diligence," and "failures corrected within certain periods," see 26 U.S.C. § 4980D(c). While all of the foregoing might come to pass, it is MRC's burden to establish that the fines are "certainly impending" and not merely capable of occurring.
The speculative injury MRC alleges is similar to the speculative injuries that the Supreme Court rejected in Clapper v. Amnesty International, USA, 133 S. Ct. (2013), and the Fourth Circuit rejected in dicta in Liberty University Inc. v. Lew, 733 F.3d 72, 85 (4th Cir. 2013). In Clapper, the plaintiffs—a group of human rights and other advocacy organizations—sought declaratory judgment that a statute permitting government interception of private communications for foreign-intelligence gathering was unconstitutional. Clapper, 133 S. Ct. at 1142. By way of injury, the plaintiffs alleged an "objectively reasonable likelihood" existed that the governmentwould intercept attorneys representing individuals who may have links to foreign entities suspected of terrorism. Id. at 1143. The Supreme Court determined that the injury alleged was speculative, emphasizing that "threatened injury must be certainly impending to constitute injury in fact andthat allegations ofpossible future injury are not sufficient." Id. at 1147 (internal quotation marks omitted) (citation omitted). The Court reasoned that because the plaintiffs "set forth no specific facts demonstrating that the communications of their foreign contracts will be targeted," they were "merely speculating] and mak[ing] assumptions about whether their communications . . . will be acquired" and "how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to

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target." Id. at 1148-49. Ultimately, the plaintiffs' allegation of "injury based on potential future surveillance" did not create Article III injury-in-fact. Id. at 1150.
In Liberty, the Fourth Circuit reiterated Clapper's distinction between certainly impending injury sufficient for standing and insufficient injury. In Liberty, the plaintiff Liberty University sought declaratory judgment, in part, that the "employer mandate" of the ACA was invalid. Liberty Univ., Inc. v. Lew, 733 F.3d at 85. The employer mandate requires an "applicable large employer" to provide affordable healthcare to full-time employees and their dependents. Id. at 84. In dicta, the Fourth Circuit wrote that "while it is possible that Liberty's current plan fails to provide affordable coverage, subjecting Liberty to an assessable payment..., Liberty alleges only that its coverage 'could* be deemed unaffordable." Id. at 89 n.5 (emphasis added). The Fourth Circuit then quoted Clapper's language about the insufficiency of possible future injury.
Id.
Clapper and Liberty establish that the mere possibility of future regulatory fines will not surmount the hurdle of Article III. Rather, the burden is on MRC to allege that regulatory fines were "certainly impending," which it could have achieved by alleging specific facts showing that fines will be imposed on MRC. MRC has not alleged those facts. Indeed, MRC's failure to allege those facts is what distinguishes MRC's predicament from the cases it cites in support of its position, Terrace v. Thompson, 263 U.S. 197 (1923), and Steffel v. Thompson, 415 U.S. 452 (1974). In both Terrace and Steffel, the plaintiff was seeking to violate a law despite receiving a
2 At oral argument, MRC also relied on Abbott Laboratories v. Gardner, 387 U.S. 136
(1967). Although the dispute in Abbott concerned the ripeness of the plaintiffs' claims, the Supreme Court noted that the plaintiffs undoubtedly had standing because "the regulation is directed at them in particular; it requires them to make significant changes in their everyday business practices; if they fail to observe the Commissioner's rule they are quite clearly exposed
to the imposition of strong sanctions." Abbott, 387 U.S. at 154.
10

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specific threat of the law's enforcement from the relevant law-enforcement official. See Terrace,
263 U.S. at 212; Steffel, 415 U.S. at 455-56. While a specific threat of law enforcement is not
always needed, see, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 15-16 (2010)
(permitting preenforcement review before the plaintiffs were criminally prosecuted because the
plaintiffs alleged an intent to violate the statute, the government had charged several others with
violations of the statute, and the government made no representation that the plaintiffs would not
be prosecuted), some fact specific to the plaintiff must be alleged to establish that injury is
certainly impending and not merely speculative.
At times, MRC attempts to reframe its injury as the "forced choice between violating its
religious beliefs or violating the law." (Doc. 28, at 7.) That, however, is not an accurate
description of MRC's situation. MRC has filed its self-certification and by the Mandate's
operation, once MRC provides this self-certification to its third party administrator, MRC cannot
be forced to pay the contraception of its employees. Of course, it is possible that the Government
may later deem the self-certification to be incorrect and that MRC may later need to choose
between its religious beliefs and its legal obligations, but that choice is not now upon MRC and it
is uncertain whether it ever will be.3
The certainty of the sanctions on the drug manufacturers in Abbott is in contradistinction to the uncertainty of sanctions ever being imposed on MRC. In Abbott, there was no question that the drug manufacturers were subject to the FDA labeling requirements; here, MRC itself argues that it is not exempt to the Coverage Mandate. In Abbott, the drug manufacturers had already expended substantial sums to comply with the FDA's labeling requirements; here, MRC with its self-certification in tow has not paid for any contraceptive services or taken any other action at odds with its religious beliefs. For these reasons, while fines were a practical certainty in Abbott, they are only a mere possibility for MRC and as the Supreme Court itself said in Abbott, "possible financial loss is not by itself a sufficient interest to sustain a judicial challenge
to governmental action." Id. at 153.
3 Following oral argument, MRC filed a notice of supplemental authority (Doc. 35),
citing to a recently issued decision of the Supreme Court, Susan B. Anthony List v. Driehaus, No. 13-193, 2014 WL 2675871 (U.S. June 16, 2014). MRC cites to Driehaus for the proposition that
11

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For these reasons, the Court DISMISSES Count I WITHOUT PREJUDICE for lack of jurisdiction.
"denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other."
Id. at*\\.
The Court reiterates that MRC has not been forced to choose between regulatory obligations and religious beliefs. Moreover, in Driehaus, the Supreme Court affirmed that injuryin-fact exists when the plaintiff "alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Id. at *6 (quotation omitted). The facts of this case could not be more inapposite with MRC alleging an intent to comply with the Mandate, first by executing the self-certification and then by providing a copy to its third-party administrator.
12

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B. Absence of Article III "Case or Controversy" Suggests an Absence of "Actual Controversy" Under the Declaratory Judgment Act. By failing to establish its standing to bring Count I, MRC also fails to allege a "case" or
"controversy" within the meaning of Article III. See Natural Resources Def Council, Inc. v. Watkins, 954 F.2d 974, 984 (4th Cir. 1992) ("A case or controversy requires that the plaintiff must have standing.") (internal quotation marks omitted) (citation omitted)). Because Article Ill's case-or-controversy requirement is synonymous with the "actual controversy" requirement of the Declaratory Judgment Act, see Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937), and given the attenuated likelihood of the harm alleged, the Court holds that there is no "actual controversy" within the meaning of the Declaratory Judgment Act. Thus, the Court lacks declaratory-judgment jurisdiction, as well as Article III jurisdiction, to hear Count I of MRC's Complaint.
C. No Clear Showing of Likelihood of Success on the Merits on Count II Requires
Denial of MRC's Motion.
Turning to Count II, the Government has not challenged MRC's standing to seek declaratory judgment that the Mandate violates the Establishment Clause. Thus, the Court reaches the merits of MRC's motion on this ground and DENIES the motion because MRC has
not established a likelihood of success on the merits of its Establishment Clause claim.
Though MRC styles Count II of its complaint as an Establishment Clause challenge, its motion for a preliminary injunction scarcely references the Establishment Clause, let alone how exactly the Coverage Mandate violates the Establishment Clause. Curiously, its motion discusses how the Coverage Mandate should be deemed void for vagueness or a violation of MRC's freeexercise rights. {See Doc. 6, at 11-14.) The locus of the Court's inquiry, however, is whether
MRC can succeed on the claims it will raise at trial—i.e., on the Establishment Clause claim it
13

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alleges in its Complaint. Because a party seeking injunctive relief must make a clear showing
that he or she will likely succeed on the merits at trial, Real Truth About Obama, 575 F.3d at 345, and because MRC has made virtually no showing of how it could succeed on an Establishment Clause claim, the Court DENIES MRC's Motion for Preliminary Injunction.

IV. CONCLUSION
For the foregoing reasons, the Court DENIES MRC's Motion for Preliminary Injunction as to Counts I and II. Additionally, the Court DISMISSES Count I WITHOUT PREJUDICE for lack ofjurisdiction.

IT IS SO ORDERED.

ENTERED this JK day of August, 2014.

Alexandria, Virginia 8/ / /14

/s/ Gerald Bruce Lee
United States District Judge

14

 
 Case: 1:14-cv-379 As of: 01/25/2015 10:29 AM EST 1 of 6
CLOSED,STAYED
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:14−cv−00379−GBL−IDD

Media Research Center v. Sebelius et al Assigned to: District Judge Gerald Bruce Lee Referred to: Magistrate Judge Ivan D. Davis Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 04/11/2014 Date Terminated: 10/14/2014 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Media Research Center

represented by C. Matthew Haynes LeClairRyan PC (Alexandria) 2318 Mill Road Suite 1100 Alexandria, VA 22314 703−647−5919 Fax: 703−647−5989 Email: matthew.haynes@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Alan Warrington LeClairRyan PC (Alexandria) 2318 Mill Road Suite 1100 Alexandria, VA 22314 703−684−8007 Fax: 703−684−8075 Email: David.Warrington@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Rainsbury LeClair Ryan, PC (Roanoke) 1800 Wells Fargo Tower Drawer 1200 Roanoke, VA 24006 (540) 510−3055 Fax: (540) 510−3053 Email: joseph.rainsbury@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurin Howard Mills LeClairRyan PC (Alexandria) 2318 Mill Road Suite 1100 Alexandria, VA 22314 703−647−5903 Fax: 703−647−5953 Email: laurin.mills@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paris Ratliff Sorrell LeClairRyan PC (Alexandria) 2318 Mill Road Suite 1100 Alexandria, VA 22314 703−647−5934

Case: 1:14-cv-379 As of: 01/25/2015 10:29 AM EST 2 of 6

Fax: 703−647−5984 Email: Paris.Sorrell@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Michael Holm LeClairRyan PC (Alexandria) 2318 Mill Road Suite 1100 Alexandria, VA 22314 703−647−5927 Fax: 703−684−8075 Email: michael.holm@leclairryan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services

represented by Antonia Konkoly US Attorney's Office (Alexandria−NA) 2100 Jamieson Avenue Alexandria, VA 22314 NA 703−299−3799 Email: antonia.konkoly@usdoj.gov ATTORNEY TO BE NOTICED

David Moskowitz US Attorney's Office (Alexandria−NA) 2100 Jamieson Avenue Alexandria, VA 22314 NA 703−299−3845 Email: david.moskowitz@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Health and Human Services

represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED

David Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jacob W. Lew in his official capacity as the Secretaryof the United States Department of Treasury

represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED

David Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED

David Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Case: 1:14-cv-379 As of: 01/25/2015 10:29 AM EST 3 of 6

Defendant
Thomas E. Perez in his official capacity as the Secretary of the United States Department of Labor

represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED

David Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department Of Labor

represented by Antonia Konkoly (See above for address) ATTORNEY TO BE NOTICED

David Moskowitz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/11/2014
04/11/2014 04/16/2014 04/23/2014 04/30/2014 04/30/2014
04/30/2014
04/30/2014
04/30/2014
04/30/2014 04/30/2014

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 14683043012.), filed by Media Research Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Civil Cover Sheet, # 13 Receipt)(gwalk, ) (Entered: 04/15/2014)
2 Financial Interest Disclosure Statement as to Media Research Center filed (gwalk, ) (Entered: 04/15/2014)
3 Summons Issued as to All Defendants, U.S. Attorney and U.S. Attorney General (gwalk, ) (Entered: 04/17/2014)
4 NOTICE by Media Research Center re 1 Complaint, (Attachments: # 1 Exhibit Exhibit 2 to Complaint, # 2 Exhibit Exhibit 10 to Complaint)(Sorrell, Paris) (Entered: 04/23/2014)
5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction by Media Research Center. (Warrington, David) (Entered: 04/30/2014)
6 Memorandum in Support re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction filed by Media Research Center. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 4)(Warrington, David) (Entered: 04/30/2014)
7 NOTICE by Media Research Center re 6 Memorandum in Support, Notice of Submission of Exhibit 3, Part 1 (Attachments: # 1 Exhibit Table of Contents, # 2 Doc Nos. 1−100, # 3 Doc Nos. 101−150, # 4 Doc Nos. 151−200, # 5 Doc Nos. 201−250)(Warrington, David) (Entered: 04/30/2014)
8 NOTICE by Media Research Center re 6 Memorandum in Support, Notice of Submission of Exhibit 3, Part 2 (Attachments: # 1 Doc Nos. 251−300, # 2 Doc Nos 301−350, # 3 Doc Nos 351−400, # 4 Doc Nos 401−425)(Warrington, David) (Entered: 04/30/2014)
9 NOTICE by Media Research Center re 6 Memorandum in Support, Notice of Submission of Exhibit 3, Part 3 (Attachments: # 1 Doc Nos. 426−450, # 2 Doc Nos. 451−475, # 3 Doc Nos. 476−525, # 4 Doc Nos. 526−553)(Warrington, David) (Entered: 04/30/2014)
10 Notice of Hearing Date re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction (Warrington, David) (Entered: 04/30/2014)
11 Notice of Hearing Date Amended Notice of Hearing re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction (Warrington, David) (Entered: 04/30/2014)

Case: 1:14-cv-379 As of: 01/25/2015 10:29 AM EST 4 of 6

05/01/2014 05/01/2014 05/07/2014 05/07/2014
05/07/2014
05/08/2014 05/09/2014
05/12/2014 05/15/2014 05/15/2014 05/15/2014 05/15/2014 05/20/2014 05/20/2014 05/20/2014

Set Deadlines as to 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction. Motion Hearing set for 5/16/2014 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 05/01/2014)
Reset Deadlines as to 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction. Motion Hearing set for 6/6/2014 at 10:00 AM in Alexandria Courtroom 700 before District Judge Gerald Bruce Lee. (clar, ) (Entered: 05/01/2014)
12 NOTICE of Appearance by Antonia Konkoly on behalf of Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury (Konkoly, Antonia) (Entered: 05/07/2014)
13 Motion to appear Pro Hac Vice by Benjamin L. Berwick and Certification of Local Counsel Antonia Konkoly by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Konkoly, Antonia) (Entered: 05/07/2014)
14 MOTION for Extension of Time to File Response/Reply to Plaintiff's Motion for a Preliminary Injunction by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Entered: 05/07/2014)
15 ORDER granting 13 Motion for Pro hac vice. Signed by Magistrate Judge Ivan D. Davis on 5/8/14. (nhall) (Entered: 05/09/2014)
16 SCHEDULING ORDER:Initial Pretrial Conference set for 6/4/2014 at 11:00 AM in Alexandria Courtroom 400 before Magistrate Judge Ivan D. Davis. Final Pretrial Conference set for 9/18/2014 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. Discovery due by 9/12/2014. Signed by District Judge Gerald Bruce Lee on 5/9/14. (Attachments: # 1 Mag. Consent, # 2 Pretrial Notice)(nhall) (Entered: 05/09/2014)
17 ORDER granting 14 Motion for Extension of Time to File Response/Reply. Defendants shall file their opposition to Plaintiff's Motion for Preliminary Injunction on or before May 23, 2014. (See Order For Details). Signed by District Judge Gerald Bruce Lee on 5/12/14. (nhall) (Entered: 05/13/2014)
18 NOTICE of Appearance by C. Matthew Haynes on behalf of Media Research Center (Haynes, C. Matthew) (Entered: 05/15/2014)
19 NOTICE of Appearance by William Michael Holm on behalf of Media Research Center (Holm, William) (Entered: 05/15/2014)
20 NOTICE of Appearance by Laurin Howard Mills on behalf of Media Research Center (Mills, Laurin) (Entered: 05/15/2014)
21 NOTICE of Appearance by Joseph M. Rainsbury on behalf of Media Research Center (Rainsbury, Joseph) (Entered: 05/15/2014)
22 Consent MOTION to Vacate 16 Scheduling Order, by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Entered: 05/20/2014)
23 SUMMONS Returned Executed as to the US Atty served on 4/25/2014, answer due 6/24/2014. (nhall) (Entered: 05/21/2014)
24 SUMMONS Returned Executed by certified mail as to Kathleen Sebelius, Jacob W. Lew, United States Department of Health and Human Services, United States Department of Treasury, Thomas E. Perez, United States Department Of Labor &Eric Holder − Attorney General (Attachments: # 1 Exhibit A Part I, # 2 Exhibit A Part II)(nhall) (Entered: 05/21/2014)

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06/17/2014 06/18/2014 07/03/2014

25 NOTICE Of Filing Affidavit Of Service Via Certified Mail by Media Research Center.(nhall) (Entered: 05/21/2014)
26 Memorandum in Opposition re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction filed by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Konkoly, Antonia) (Entered: 05/23/2014)
27 Discovery Plan by Media Research Center.(Warrington, David) (Entered: 05/28/2014)
28 REPLY to Response to Motion re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction filed by Media Research Center. (Warrington, David) (Entered: 05/30/2014)
29 NOTICE of Appearance by David Moskowitz on behalf of Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury (Moskowitz, David) (Entered: 06/03/2014)
30 ORDER denying Defendantts' 22 Unopposed Motion to Vacate Scheduling Order 16 Scheduling Order, . /s/ by District Judge Gerald Bruce Lee on 6/3/14. (tbul, ) (Entered: 06/03/2014)
31 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis: Initial Pretrial Conference held on 6/4/2014. Appearances of counsel. Joint Discovery Plan to be filed by 6/9/2014. Order to follow thereafter. (rban, ) (Entered: 06/04/2014)
32 Minute Entry for proceedings held before District Judge Gerald Bruce Lee:Motion Hearing held on 6/6/2014 re: 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction filed by Media Research Center. Appearances: David Warrington for Pltff; David Moskowitz, Ben Berwick for Deft. Heard and T.U.A. (Court Reporter R. Wilson.)(tbul, ) (Entered: 06/06/2014)
33 Discovery Plan by Media Research Center.(Warrington, David) (Entered: 06/09/2014)
34 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that the Joint Discovery Plan filed by the parties is approved and shall control discovery to the extent of its application unless further modified by the court. (see order for details). Signed by Magistrate Judge Ivan D. Davis on 6/12/14. (yguy) (Main Document 34 replaced on 6/13/2014) (rban, ). (Entered: 06/12/2014)
35 NOTICE by Media Research Center re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Exhibit Exhibit 1)(Warrington, David) (Entered: 06/16/2014)
36 Consent MOTION for Extension of Time to File Answer by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Entered: 06/17/2014)
37 Response to 35 NOTICE of Supplemental Authority filed by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Konkoly, Antonia) (Entered: 06/17/2014)
38 ORDER granting 36 Motion for Extension of Time to Answer. Defendants shall answer or otherwise respond to plaintiff's complaint no later than 14 days after the Court rules on plaintiff's pending motion for a preliminary injunction 5 . Signed by Magistrate Judge Ivan D. Davis on 06/18/2014. (jwil, ) (Entered: 06/19/2014)
39 NOTICE by Media Research Center re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction (Attachments: # 1 Exhibit Burwell v. Hobby Lobby Stores, Inc., # 2 Exhibit Wheaton College v. Burwell)(Warrington, David) (Entered: 07/03/2014)

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07/03/2014 07/03/2014 07/03/2014 07/03/2014
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40 MOTION for Leave to File Motion for Leave to File Supplemental Briefing by Media Research Center. (Warrington, David) (Entered: 07/03/2014)
41 Memorandum in Support re 40 MOTION for Leave to File Motion for Leave to File Supplemental Briefing filed by Media Research Center. (Attachments: # 1 Proposed Order)(Warrington, David) (Entered: 07/03/2014)
42 MEMORANDUM OPINION AND ORDER − the Court DENIES MRC's Motion for Preliminary Injunction as to Counts I and II. Additionally, the Court DISMISSES Count I WITHOUT PREJUDICE for lack ofjurisdiction. Signed by District Judge Gerald Bruce Lee on 3/7/14. (gwalk, ) (Entered: 07/03/2014)
43 ORDER granting 40 Motion for Leave to File; ORDERED that Plaintiff shall file a supplemental brief relating solely to the impact of Burwell v. Hobby Lobby Stores, Inc., No. 13−354, _ U.S. _, 2014 WL 2921709 (U.S. June 30, 2014) on the Court's resolution of Plaintiffs Motion for Preliminary Injunction (Doc. 5). Plaintiffs supplemental brief shall be filed no later than July 11, 2014 and shall not exceed 10 pages. IT IS LASTLY ORDERED that Defendant shall file any response to the brief by no later than July 18, 2014. Any response brief shall not exceed 10 pages. Signed by District Judge Gerald Bruce Lee on 07/03/2014. (jlan, ) (Entered: 07/07/2014)
Notice of Correction: The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument re 40 MOTION for Leave to File Motion for Leave to File Supplemental Briefing (jlan) (Entered: 07/07/2014)
44 Brief in Support to 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction Supplemental Brief in Support of Motion for a Preliminary Injunction filed by Media Research Center. (Warrington, David) (Entered: 07/11/2014)
45 Memorandum in Opposition re 5 MOTION for Preliminary Injunction Plaintiff's Motion for a Preliminary Injunction filed by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Konkoly, Antonia) (Entered: 07/18/2014)
46 ORDER. Accordingly, IT IS HEREBY ORDERED that the July 3, 2014 Memorandum Opinion and Order (Doc. 42) is VACATED and an amended Memorandum Opinion and Order shall be issued. (See Order For Details). Signed by District Judge Gerald Bruce Lee on 8/1/14. (nhall) (Entered: 08/04/2014)
47 AMENDED MEMORANDUM OPINION AND ORDER, the Court DENIES MRC's Motion for Preliminary Injunction as to Counts I and II. Additionally, the Court DISMISSES Count I WITHOUT PREJUDICE for lack of jurisdiction. IT IS SO ORDERED. (See Order For Details). Signed by District Judge Gerald Bruce Lee on 8/1/14. (nhall ) (Entered: 08/04/2014)
48 Joint MOTION to Stay by Jacob W. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department Of Labor, United States Department of Health and Human Services, United States Department of Treasury. (Attachments: # 1 Proposed Order)(Konkoly, Antonia) (Entered: 08/12/2014)
49 ORDER granting 48 Motion to Stay. (See Order For Details). Signed by District Judge Gerald Bruce Lee on 8/12/14. (nhall) (Entered: 08/12/2014)
Reset Scheduling Order Deadlines: Final Pretrial Conference set for 10/16/2014 at 10:00 AM in Alexandria Courtroom 601 before District Judge Gerald Bruce Lee. (Per GBL Chambers 9/11/14) (nhall ) (Entered: 09/11/2014)
50 STIPULATION of Dismissal Stipulation of Dismissal Without Prejudice by Media Research Center. (Warrington, David) (Entered: 10/02/2014)
51 So Ordered re 50 Stipulation of Dismissal filed by Media Research Center. Signed by District Judge Gerald Bruce Lee on 10/14/14. (gwalk, ) (Entered: 10/14/2014)