Case: 2:12-cv-00440-GCS-MRA Doc #: 2 Filed: 05/21/12 Page: 1 of 59 PAGEID #: 4

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IN THE UNITED STATES DISTRICT COURT ..Y.~~l, 1,_~.c~r~CtK,,NINI
FOR THE SOUTHERN DISTRICT OF OIDO

EASTERN DIVISION

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FRANCISCAN UNIVERSITY OF

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STEUBENVILLE; MICIDGAN

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CATHOLIC CONFERENCE in its own )

name and on behalf of the MICIDGAN )

CATHOLIC CONFERENCE AMENDED )

AND RESTATED GROUP HEALTH

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BENEFIT PLAN FOR EMPLOYEES- )

REVISED,

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Plaintiffs,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; HILDA SOLIS, in her official )

capacity as Secretary of the U.S.

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Department of Labor, TIMOTHY

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GEITHNER, in his official capacity as

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Secretary of the U.S. Department of

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Treasury; U.S. DEPARTMENT OF

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HEALTH Ai~D HUMAl~ SERVICES;

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U.S. DEPARTMENT OF LABOR; and

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U.S. DEPARTMENT OF TREASURY.

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CASE NUMBE~ : 1 2 CV 4 4'

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DATE STAMP: - - - -

Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL 1. This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are freely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs-Catholic

Case: 2:12-cv-00440-GCS-MRA Doc #: 2 Filed: 05/21/12 Page: 2 of 59 PAGEID #: 5
entities-to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those services.
2. This country was founded by those searching for religious liberty and freedom from religious persecution. The founders recognized, through their own experience, that the mixture of government and religion is destructive to both institutions. The U.S. Constitution and federal statutes thus protect religious organizations from government interference with their religious views-particularly minority religious views. This "wall of separation between church and state" preserves religious freedom. As the Supreme Court has recognized, "[t]he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority." Through this lawsuit, Plaintiffs do not seek to impose their religious beliefs on others. They simply ask that the Government not impose its values and policies on them, in direct violation of their religious beliefs.
3. Under current federal law described below (the "U.S. Government Mandate"), many Catholic organizations must provide, pay for, and/or facilitate the provision of abortioninducing drugs, sterilization, and contraceptive services for their employees in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government crafted a narrow exemption to this Mandate for "religious employers." Group health plans are eligible for the exemption only if they are "established or maintained by religious employers," and only if the "religious employer" can satisfy four criteria:
• "The inculcation of religious values is the purpose of the organization"; • "The organization primarily employs persons who share the religious tenets of the
organization";
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• "The organization primarily serves persons who share the religious tenets of the organization"; and
• "The organization is a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended."
Thus, to safeguard their religious freedoms, religious employers must plead with the Government for a determination that they are sufficiently "religious" under the Government's definition.
4. Plaintiff Franciscan University of Steubenville's group health plan may not qualify for this exemption, because, while Franciscan is a charitable organization, it appears not to fall within Section 6033(a)(l) and Section 6033(a)(3)(A)(i) or (iii) ofthe Internal Revenue Code.
5. Plaintiff Michigan Catholic Conference Amended and Restated Group Health Benefit Plan for Employees - Revised ("MCC Plan") likewise may not qualify-even though it provides the health plan for Michigan's Catholic Dioceses-because it is sponsored by Plaintiff Michigan Catholic Conference, an entity whose purpose is, in part, to offer benefit plans to Michigan Catholic organizations.
6. Even if Franciscan University could somehow change its tax designation and even if the MCC Plan could be considered to be "established and maintained" by the Dioceses themselves, the exemption would still force those entities to submit to an intrusive government investigation into whether their "purpose" is the "inculcation of religious values"; whether they "primarily" employ "persons who share [their] religious tenets," even though they hire employees of all faiths; and whether they "primarily" serve such people, even though their schools and services are generally open to people of all faiths.
7. The Government has not shown a compelling need to force Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or to
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submit to that intrusive government investigation concerning their religious missions. In fact, the Government has chosen to make exemptions to the law both for religious and non-religious reasons. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing any -interest in increasing access to these services, since the services are already widely available and nothing prevents the Government from making them more widely available by providing or paying for them directly through a duly enacted law. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of their sincerely held religious beliefs.
8. These burdens on religious freedom violate Plaintiffs' clearly established First Amendment rights and rights under the Religious Freedom Restoration Act ("RFRA"). The manner in which the U.S. Government Mandate and its "religious employer" exemption were passed, moreover, does not comport with the Administrative Procedure Act ("APA"). The U.S. Government Mandate runs afoul of all of these constitutional and statutory protections.
9. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot legally apply to them, a permanent injunction barring its enforcement against them, and an order vacating the U.S. Government Mandate. I. Background
A. Preliminary Matters 10. Plaintiff Franciscan University of Steubenville is a nonprofit Ohio corporation with a principal place of business in Steubenville, Ohio. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 50l(c)(3) ofthe Internal Revenue Code. It is also an educational organization under Section 170(b)(1 )(A)(ii) of the Internal Revenue Code.
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11. Plaintiff Michigan Catholic Conference is a nonprofit corporation incorporated in Michigan in 1963. Its principal place of business is in Lansing, Michigan. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) ofthe Internal Revenue Code.
12. The MCC Plan is a health plan sponsored and administered by the Michigan Catholic Conference. It is a "church plan" exempt from the Employee Retirement Income Security Act ("ERISA").
13. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity.
14. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
15. Defendant Timothy Geithner is the Secretary ofthe U.S. Department of Treasury. He is sued in his official capacity.
16. Defendant U.S. Department of Health and Human Services ("HHS") is an executive agency ofthe United States within the meaning ofRFRA and the APA.
17. Defendant U.S. Department of Labor is an executive agency ofthe United States within the meaning of RFRA and the APA.
18. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning ofRFRA and the APA.
19. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1(c).
20. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
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21. Venue is proper in this Court under 28 U.S.C. § 1391(e)(l). B. Franciscan University and Its Catholic-Centered Educational Mission 22. Franciscan University is an academic community of higher learning, organized as an independent, national Catholic and Franciscan university in Steubenville, Ohio. Founded in 1946 by the Franciscan Friars of the Third Order Regular ("T.O.R.") to educate returning war veterans, it seeks to provide a Catholic, Franciscan environment that prepares students spiritually and intellectually for their future vocations and careers. 23. Franciscan University is passionately Catholic and believes that Franciscanism springs from the heart of the church. 24. Faith is at the heart ofFranciscan University's educational mission. The apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities, provides that ''the objective of a Catholic University is to assure ... Fidelity to the Christian message as it comes to us through the Church." 25. In accordance with Ex Corde Ecclesiae, Franciscan University believes and teaches that "besides the teaching, research and services common to all Universities," it must "bring[] to its task the inspiration and light of the Christian message." "Catholic teaching and discipline are to influence all university activities," and "[a]ny official action or commitment of the University [must] be in accord with its Catholic identity." 26. "In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative." 27. Franciscan University's mission includes: "The Way, the Truth and the Life are fundamental concepts and guidelines for evaluating University priorities, staffing and budgets
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and are understood as explicating dynamic orthodoxy." Dynamic orthodoxy means teaching from the heart of the Church, passing on the unchanging truths of the faith in all their glory.
28. In addition to education, the stated "purpose of the University, publicly identified as a Catholic and a Franciscan institution, [is] to promote the moral, spiritual and religious values of its students. The University will be guided by the example and teaching of St. Francis of Assisi."
29. As explained in the University's "Mission and Application," "The University is thereby committed to: 1. Being truly Catholic in its full submission to the teaching authority of the Catholic Church, thereby teaching as true what that teaching authority teaches as true, rejecting all propositions contrary to those truths, and promoting thereby all the truths of revelation whether found in Scripture or Tradition as taught by the Catholic Church."
30. Franciscan University embraces the riches of the Catholic intellectual tradition, "consecrating itself without reserve to the cause of truth." It aims to provide a forum where, through free inquiry and open discussion, the various lines of Catholic thought may intersect with the arts, sciences, and every area of human scholarship.
31. Offering over forty undergraduate majors and seven graduate programs, Franciscan University pursues the highest academic achievement in every discipline, integrating faith and reason in pursuit of truth. Graduate programs include Masters of Arts in Counseling, Philosophy, Theology and Christian Ministry, as well as a Masters of Business Administration.
32. Franciscan University's Catholic educational mission is furthered by its leadership. The president must be a friar and all five presidents have been Franciscans.
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33. Franciscan University's commitment to Catholic teaching permeates campus life. The Franciscans of the T.O.R. are a visible presence on campus, where they minister to, teach, and socialize with the students to elevate their daily routine.
34. The University's Board of Trustees consists of fifteen lay leaders and eight Franciscans, including Father Nicolas Polichnowski, T.O.R., who is both Chairman of the Board and the Minister Provincial of the province.
35. The University's Code of Student Conduct proscribes certain conduct that can be punished with disciplinary sanctions, including "[l]ewd, indecent, obscene or otherwise immoral conduct or expression that violates Catholic moral teaching on sexuality or the promotion or advocacy of such conduct or expression."
36. The University maintains only single-sex dormitories, with opposite sex visitation in student rooms restricted to 6 to 10 pm on Friday night and 1 to 5 pm on Sunday afternoon.
37. The University does not make artificial contraception available to its students, faculty, or staff at its on-campus health care facility.
38. While committed to remaining a Catholic and Franciscan institution, Franciscan University opens its doors to students, academics, and employees of all faiths and creeds.
39. Faith in Christ is not required for student admission. Over 2100 full- and parttime students are enrolled in Franciscan University's undergraduate programs, over 400 are enrolled in its graduate programs.
40. The University's alumni have gone on to distinguished careers in industry, medicine, law, and a host of other disciplines, and established an alumni network with over 14,000 members with a uniquely caring nature. For example, this network formed a Special Needs Network to assist alumni who have children with autism and other special needs.
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41. In total, Franciscan University employs over 450 full- and part-time individuals and does not know what percentage of the non-faculty employees are Catholic. Faith in Christ is not required for employment, except where required or permitted by law. All employees, however, must be committed to supporting the mission of Franciscan University.
42. Service to the community is an integral part of the University's curriculum. According to its Economic Impact Report from 2009-2010, the University provided 80,216 hours of service to the local community, approximately 50,000 of those hours by University faculty and staff. Faculty and staff service includes providing free consulting services, uncompensated speeches, appearances at professional groups, and the uncompensated time spent preparing for these services. The total value of contributed time was estimated at $3,583,664.
43. Every week, over 200 students participate in at least one program run by the Works of Mercy group, which consists of fifteen ministries sponsored and directed by the University that serve the poor, neglected, and needy in the Ohio Valley and nearby Pittsburgh. Ministries include service in nursing homes, homeless shelters, a hospital, group homes for the mentally challenged, soup kitchens, and prisons, as well as mentoring and other youth programs with local youth. These programs are not limited to Catholics, and Franciscan University does not know how many of the people it serves are Catholic. In fact, its religious mission is expressly to serve all, whether or not they are Catholic.
44. Over 80% of both undergraduate and graduate students receive some form of financial aid, with the University distributing over $8 million in scholarships and nongovernment grants. In addition, the University provides over $3 million in institutional discounts to clergy and employees' family members.
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45. A significant percentage of the University's endowment is raised from Catholics, including alumni, who donated, and continue to donate, to further its mission. Franciscan University would violate the purpose of those donations if it used the funds to finance, facilitate, or provide services that are contrary to the University's mission.
46. Franciscan University also plays a significant role in the regional economy. The University, including its students, employees, and visitors, directly account for about $71 million in regional spending per year. Indirectly, the University impacts over $200 million per year, for a total impact of approximately $280 million, which is 16% of Steubenville's economy. The University, directly and indirectly, generates jobs for nearly 8100 people.
47. Franciscan University has ensured that its sponsored health plans do not include coverage for abortion, sterilization, contraception, or related education and counseling that are inconsistent with the teachings of the Catholic Church. Franciscan University cannot, without violating its sincerely held religious beliefs, offer coverage for these or other devices, drugs, procedures, or services that are inconsistent with the teachings of the Catholic Church.
48. Franciscan University's group health plan for employees is administered by a Third Party Administrator. Franciscan University is a member of a consortium of private colleges and universities that insures the group health plan. Franciscan University pays a monthly premium to the Consortium. That premium is placed in a pool designated for the University that is used to pay the claims of its employees and their eligible dependents, reserve requirements, administrative expenses, stop loss insurance, and "any ordinary and necessary expenses related to the Third Party Administrator's program or incurred by the Consortium." Under this plan, Franciscan University pays for its employees' claims, including all claims for covered preventive services.
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49. Franciscan University's employee health plan year begins on January 1. 50. Both employee health plan options offered by Franciscan University provide rich coverage with a very low cost to employees. Co-pays and employee premiums are very low, especially given Franciscan University's size. The generosity of the plans springs from Franciscan University's mission. 51. Both employee health insurance plan options offered by Franciscan University meet the definition of a "grandfathered" plan within the meaning of the Patient Protection and Affordable Care Act (the "Affordable Care Act" or the "Act"). Franciscan University has included a statement describing its grandfathered status in plan materials, as required by 26 C.F.R. § 54.9815-1251 T(a)(2)(ii). 52. Franciscan University also currently offers a student health plan for full-time students who are not covered by other insurance, as well as their eligible dependents. Full-time undergraduate students are enrolled in the plan each year, unless they waive enrollment. 53. This student health plan is not self-insured or funded through the Consortium. 54. The current plan year runs from August 15, 2011, to August 15, 2012. 55. Franciscan University has decided not to continue this student health plan after it expires on August 15, 2012, partially due to the fact that the plan would have to cover the services required by the U.S. Government Mandate. C. The Michigan Catholic Conference And The Many Catholic Institutions
That Participate In Its MCC Plan 56. Plaintiff Michigan Catholic Conference was established by His Eminence John Cardinal Dearden, then Archbishop ofDetroit, in 1963. It has a Board of Directors of fourteen members, including the seven bishops of the seven Catholic Dioceses in Michigan, five lay
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persons, a priest, and a religious sister. The Archbishop of Detroit, the Most Reverend Allen H. Vigneron, is presently the Chairman of the Board.
57. The Michigan Catholic Conference was originally created to be the public policy voice of the Catholic Church in Michigan, allowing the Catholic Church's position on public policy to be presented with one voice throughout the State.
58. Since then, the Michigan Catholic Conference has expanded to sponsor and administer a wide range of benefit programs for participating Catholic institutions in Michigan. It administers, among others, the MCC Plan.
59. The MCC Plan allows Michigan Catholic institutions and their qualifying employees to participate in health-benefit programs. Specifically, the MCC Plan offers health benefits to qualifying employees of"Covered Units," and defines "Covered Unit" to mean:
a parish, school, institution, organization, corporation or other entity in the State of Michigan which is an integral part of the Catholic Church, engaged in carrying out the functions of the Catholic Church, and under the control of an Archbishop or Bishop of a Diocese in the Province of Detroit, unless the Archbishop or Bishop specifically exempts the unit from status as a Covered Unit. The Michigan Catholic Conference shall be a Covered Unit. Any parish, school, institution, organization, corporation or other entity listed within the Kenedy Directory which is an integral part of the Catholic Church and which is engaged in carrying out the functions of the Catholic Church, but which is not under the control of an Archbishop or Bishop of a Diocese in the Province of Detroit, may become a Covered Unit pursuant to a written agreement between its governing authority and the Michigan Catholic Conference. Presently, approximately 1131 Catholic institutions and approximately 9982 participants receive their health insurance through the Plan. 60. The MCC Plan truly is the group health plan for the Catholic Church in Michigan. The seven Catholic Dioceses in Michigan use the MCC Plan to provide their employees with health insurance. These Dioceses cover the entire State:
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a. The Archdiocese of Detroit encompasses more than 270 parishes in six counties in the greater Detroit area. Since 2009, it has been led by Archbishop Allen Vigneron.

b. The Diocese of Grand Rapids encompasses 98 parishes in eleven counties in western Michigan. Since 2005, it has been led by Bishop Walter A. Hurley.

c. The Diocese of Lansing encompasses 89 parishes in ten counties in central Michigan. Since 2008, it has been led by Bishop Earl A. Boyea.

d. The Diocese of Kalamazoo encompasses 69 parishes in nine counties in southwestern Michigan. Since 2009, it has been led by Bishop Paul J. Bradley.

e. The Diocese of Saginaw encompasses 109 parishes in eleven counties in Michigan's ''thumb and index finger." Since 2009, it has been led by Bishop Joseph R. Cistone.

f.

The Diocese of Gaylord encompasses 80 parishes in 21 counties in the northern

part of Michigan's lower peninsula. Since 2009, it has been led by Bishop

Bernard A. Hebda.

g. The Diocese of Marquette encompasses 94 parishes in the fifteen counties in Michigan's upper peninsula. Since 2006, it has been led by Bishop Alexander K. Sample.

61. These seven Dioceses carry out the spiritual, educational, and social-service

missions of the Catholic Church in Michigan.

62. The Dioceses, along with their local parishes, provide spiritual ministry to the

approximately 2. 1 million Catholics in Michigan that represent 21% of Michigan's population.

They ensure the availability of the sacraments to all Catholics living in or visiting Michigan.

63. The Dioceses conduct their educational missions, in part, through their various

Offices of Catholic Schools and their many affiliated elementary and high schools, most of

whom participate in the MCC Plan. The Archdiocese of Detroit has over 100 Catholic schools in

its jurisdiction; the Diocese of Grand Rapids has 31; the Diocese of Lansing has 36; the Diocese

of Kalamazoo has 22; the Diocese of Saginaw has 19; the Diocese of Gaylord has 17; and the

Diocese of Marquette has 9.

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64. When including independent Catholic schools, there are approximately 42 high schools and 213 elementary schools in Michigan, teaching over 16,000 high-school students and over 46,000 elementary students. These schools are largely open to students of all faiths.
65. The Dioceses and their schools provide significant tuition assistance to their students. The Archdiocese of Detroit Endowment Foundation, for example, provides 65% of its annual distributions (over $1.5 million in the 2010-11 school year) to tuition assistance programs for Catholic elementary and high schools in the Archdiocese.
66. The Dioceses perform charitable social services through their various Diocesan ministries, their offices of Christian Service, and/or their local parishes. These Diocesan and parish programs range from ministering to the prison population, to funding local self-help projects for the poor, to offering low-cost, legal representation to indigent immigrants, to providing meals to the homeless or visits to nursing homes.
67. Neither the Dioceses nor their parishes request to know the religious affiliation of the individuals that their social-service programs serve.
68. The MCC Plan provides health benefits for many organizations that assist the Dioceses in carrying out the Church's educational mission. Loyola High School in Detroit is one such entity. In the 1990s, the Detroit Board of Education proposed opening several all-male academies to address the alarmingly high dropout rate ofhigh-school males in Detroit. When a court found the state-run plan unconstitutional, Catholic leaders filled the gap by opening Loyola High School in inner-city Detroit to be run in the Jesuit tradition. It is an independent high school welcoming male students of all faiths who face the challenges of an urban environment. Its student population is made up of95% non-Catholics and 99% minorities. Since its first
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graduating class, every one of its graduating students has been admitted into a college or university. It offers employment opportunities to people of all faiths.
69. San Juan Diego Academy-a nonprofit Michigan corporation located in the Diocese of Grand Rapids-likewise is a "Covered Unit" under the MCC Plan. San Juan Diego is a Kindergarten through Eighth Grade Catholic school located on the Holy Name of Jesus Church campus serving six parishes in the Wyoming and Grand Rapids area of Michigan. The mission of San Juan Diego Academy is "to provide the children of our immediate neighborhood with an academically excellent and morally vibrant education, otherwise outside their economic reach. We are creating an environment where children can learn, engage, pray and grow in Christ." San Juan Diego Academy serves between 120 and 145 students annually and places an emphasis on literacy. San Juan Diego himself was canonized in 2002, and the school excels in providing an English language-based and interdisciplinary education for its students. Children attending the school typically begin with little to no English reading skills, yet by the end of the first year the students have developed the confidence and skills to read aloud in a public setting.
70. Sacred Heart Major Seminary, another nonprofit Michigan corporation in Detroit that participates in the MCC Plan, also provides educational opportunities to the Michigan com.'llunity and beyond. It is an institution of higher education that primarily prepares candidates for the Roman Catholic Priesthood and, further, prepares individuals for the diaconate, lay ministry, and other leadership roles in the Church. As its core values, Sacred Heart sees "Jesus Christ [as] the center of all that we do," and aims to "form disciples as leaders who are prepared to bring the truth of the Gospel to a secularized world, who are faithful to the teachings of the Catholic Church, and who are equipped to nurture their lifelong relationship
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with Jesus Christ." It has over 80 full- and part-time professors serving over 90 seminarians and over 400 lay students, and it offers both undergraduate and graduate degrees.
71. The MCC Plan also provides health benefits for many organizations that assist the Michigan Dioceses in carrying out the Catholic Church's social-service mission. For example, Catholic Family Services-a nonprofit Michigan corporation located in the Diocese of Kalamazoo-is a "Covered Unit" under the MCC Plan. As indicated in its Mission Statement, "[t]he mission of Catholic Family Services is to provide social services in the manner of Jesus Christ, with compassion, care and concern for justice to all people in need and to advocate for their welfare calling those of good will to assist in this mission in the Diocese of Kalamazoo."
72. Catholic Family Services offers a range of programs, including, for example, the Ark Shelter and the Caring Network, to individuals in need without regard to their religion. The Ark Shelter serves homeless and runaway children by providing them temporary housing and counseling sessions and by helping them reunite with their families. The Caring Network offers assistance to pregnant and parenting women and their babies, including professional counseling services and transitional living apartments for the homeless.
73. Catholic Family Services has 65 individuals on staff and offers employment opportunities to people of all faiths.
74. Catholic Social Services of the Upper Peninsula-a nonprofit Michigan corporation located in the Diocese of Marquette-is another Covered Unit under the MCC Plan with a similar service mission. Its mission is, among others, "[t]o promote and improve the healthy social functioning of individuals and families through counseling and prevention programming which enhance and support family life," "[i]n keeping with the teaching of the Catholic Church." It provides a broad range of assistance to Michigan families in need, ranging
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from adoption services to counseling services, to assisted-living services. It has seventeen employees and hires people of all faiths.
75. Catholic Human Services, Inc.-a nonprofit Michigan corporation located in the Diocese of Gaylord-also participates in the MCC Plan. "The purpose of Catholic Human Services, Inc. is to fulfill the social mission of the Catholic Church." It "seeks to heal, strengthen, enhance and build healthy individuals, families and communities by providing a wide range of services including advocacy, education, counseling, adoption, prevention and outreach services to all people throughout the life span within the twenty-one counties of northern lower Michigan" that makeup the Diocese of Gaylord. Its Host Homes for Homeless Youth, for example, is designed to offer safe and stable homes for homeless high-school students, and its Prevention Services program offers instruction on a wide array of topics, including underage drinking, parenting skills, and anger management skills. Catholic Human Services offers assistance to over 26,000 individuals per year, regardless of their religious affiliation. Its 81 employees represent many denominations and faiths.
76. Catholic Social Services ofWashtenaw County-a nonprofit Michigan corporation located in the Diocese of Lansing-is another "Covered Unit" under the MCC Plan. Its mission "[i]s the work ofthe Catholic Church to share the love of Christ by performing the corporal and spiritual works of Mercy. We help. We participate. We Change Lives." Serving thousands of individuals and families of all faiths and all walks of life, CSSW offers more than two dozen programs reflecting the diversity of the community: adoption and pregnancy counseling, food assistance, homelessness prevention, domestic and child abuse intervention and prevention, family therapy, and services designed to assist older adults, individuals with developmental disabilities, and at-risk families with young children.
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77. Compensated executive staff for Abortion Alternatives Information, Inc.-a nonprofit Michigan corporation location in the Diocese of Saginaw-also participate in the MCC Plan. According to Abortion Alternatives' mission statement, its "Pregnancy Aid is in response to the conviction that God is working through us to protect the sacredness of life and the value of all people, both the born and unborn. We uphold the dignity of all who enter our doors; by offering guidance to moms and dads at their most vulnerable time, thereby promoting healthy families." The organization's primary goal is to help people choose life. Its secondary goals are to support their choice in practical ways, and to promote healthy parenting skills. Abortion Alternatives' clients are low-income mothers, fathers and children, mostly single mothers with newborn or young children. The organization's typical clients are 15-24 year-old women who are single, poor, and with less than a high school education. Abortion Alternatives serves 11 Michigan counties in the Diocese of Saginaw (Arenac, Bay, Clare, Gladwin, Gratiot, Huron, Isabella, Midland, Saginaw, Sanilac and Tuscola) with the majority coming from the Saginaw area. It served over 2,500 families last year, including 320 new clients. During that year, it provided over 20,000 diapers, 523 cans offormula, 68 cribs, 31 car seats, and substantial clothing for the children of 1108 families. The organization provides emotional support, postabortive healing, referral services to community resources and adoption agencies, and educational opportunities.
78. These entities, and the many others that participate in the MCC Plan, may participate in two health-benefit programs that MCC offers for their lay employees and clergy.
79. Covered Units may allow their lay employees to participate in the Michigan Catholic Conference Community Blue PPO Active Lay Plan. This program is self-funded and its medical and prescription benefits are administered by separate third-party administrators,
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Blue Cross Blue Shield of Michigan and Medco, respectively. Approximately 5064 employees participate in this program.
80. Qualifying priests may participate in the Michigan Catholic Conference Community Blue PPO Clergy Plan. This program is also self-funded, and its medical and prescription benefits are administered by the same third-party administrators. Approximately 836 clergy throughout Michigan participate in this program.
81. Alternatively, the MCC Plan permits both lay employees and clergy to participate in Blue Care Network - Healthy Blue Living, a fully insured benefits program. Healthy Blue Living offers insurance and administrative services through the Blue Care Network of Michigan. Approximately 1070 lay employees and clergy throughout Michigan participate in this fully funded insurance option.
82. The Plan limits the benefits that may be offered under any of these programs. It expressly indicates that "in no event shall any benefit be provided which violates the tenets of the Catholic Church, including but not limited to expenses relating to sterilizations, abortions, and/or birth control devices." Thus, none of the MCC Plan's programs offers insurance coverage for abortion, sterilization, or contraceptive services.
83. The MCC Plan and its benefit programs do not meet the definition of a "grandfathered" plan within the meaning of the Affordable Care Act.
84. The MCC Plan, for example, does not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as would be required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.98151251 T(a)(2)(i).
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85. The MCC Plan lost its grandfathered status because the PPO benefit program increased the emergency room co-payment amount from $50 to $100, and increased the prescription co-payment amount for non-formulary brand name drugs from $30 to $50.
86. The MCC Plan also lost its grandfathered status because the Blue Care Network Healthy Blue Living program added a wellness program that resulted in reduced benefits and coverage for certain individuals beyond what is allowed to maintain grandfathered status.
87. The plan year for the MCC Plan begins each year on January 1. II. Statutory and Regulatory Background
A. The Affordable Care Act 88. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the "Act"). The Affordable Care Act established many new requirements for "group health plan[s]," defined as "employee welfare benefit plan[s]" within the meaning ofERISA, 29 U.S.C. § 1002(1), that "provide[] medical care .. . to employees or their dependents." 42 U.S.C. § 300gg-91(a)(1). 89. As relevant here, the Act required group health plans to cover certain women's "preventive care." It indicated that "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall ... provide coverage for and shall not impose any cost sharing requirements for-{4) with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes ofthis paragraph." Pub. L. No. 111 148, § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)).
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90. Since the Act prohibits "cost sharing requirements," the group health plan must pay for the full costs of these "preventive care,, services without any deductible or co-payment.
91. Violations of the Affordable Care Act may subject an employer, an insurer, or a group health plan to substantial monetary penalties.
92. Certain employers who fail to provide their employees with the opportunity to enroll in an employer-sponsored plan that meets minimum requirements will be exposed to annual fines of$2000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(l).
93. Additionally, if a group health plan fails to provide the coverage required by the U.S. Government Mandate, the relevant employer or group health plan may be subject to an assessment of$100 a day per individual. See 26 U.S.C. § 4980D(b); Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012).
94. Under the Public Health Service Act, the Secretary of HHS may impose a penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); Cong. Research Serv., RL 7-5700.
95. ERISA may also provide for additional penalties for those subject to its provisions. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B). Similarly, the Secretary of Labor may bring an enforcement action against group health plans that violate the U.S. Government Mandate. See 29 U.S.C. § 1132(b)(3); Cong. Research Serv., RL 7-5700.
96. Plans that are materially unchanged since the Affordable Care Act's enactmentso-called "grandfathered" plans-are exempt from most provisions of the Act. 42 U.S.C. § 18011. These "grandfathered health plans do not have to meet the requirements" of the U.S.
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Government Mandate. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726,41,731 (July 19, 2010) ("Interim Final Rules"). HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." ld at 41,732.
97. The Act, in addition to other federal statutes, reflects a clear congressional intent that the agencies charged with identifying the required women's "preventive care" services should exclude all abortion-related services. The Act provides that "nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits." 42 U.S.C. § 18023(b)(1 )(A)(i). And the Act leaves it to "the issuer of a qualified health plan" "[to] determine whether or not the plan provides coverage of [abortion]." ld § 18023(b)(l)(A)(ii).
98. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, provides that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
99. The Act's intent to exclude abortions was instrumental in its passage, as cemented by an Executive Order without which the Act would not have passed. The legislative history shows an intent to prohibit executive agencies from requiring group health plans to provide
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abortion-related services. The House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, did not contain the same provision. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009).
100. To reconcile the different bills while avoiding a potential Senate filibuster, congressional proponents of the Act engaged in a procedure known as "budget reconciliation" that required the House to adopt the Senate version of the bill largely in its entirety.
101. Congressman Stupak and other pro-life House members indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit the use of federal funds for abortion services.
102. To appease these Representatives, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
103. The Act was thus passed on the premise that agencies would follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion. Id
B. Defendants' Agency Action Under The Act 104. In less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act's clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedures governing the promulgation and implementation of rules ofthis magnitude. 105. Within four months of enactment, on July 19, 2010, Defendants issued interim final rules concerning the requirement that group health plans cover women's "preventive care." Interim Final Rules, 75 Fed. Reg. at 41,726.
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106. Defendants dispensed with notice-and-comment rulemaking for these rules. While federal law had never required coverage of abortion-inducing drugs, sterilization, or contraception, Defendants asserted both that the APA did not apply to the relevant provisions of the Affordable Care Act and that "it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed." Id at 41,730. They dispended with the APA, among other reasons, because, "in order to allow plans and health insurance coverage to be designed and implemented on a timely basis, regulations must be published and available to the public well in advance of the effective date of the requirements of the Affordable Care Act." !d.
107. The interim final rules indicated that "a group health plan ... must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: ... (iv) With respect to women, to the extent not described in paragraph (a)(l)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration." Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.P.R. § 147.130(a)(iv)).
108. The rules, however, failed to identify the women's "preventive care" that Defendants planned to require group health plans to cover. 42 U.S.C. § 300gg-13(a)(4). Instead, Defendants noted that "[t]he Department ofHHS [was] developing these guidelines and expects to issue them no later than August 1, 2011." Interim Final Rules, 75 Fed. Reg. at 41,731.
109. Defendants permitted concerned entities to provide comments about the interim final rules. See id at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. ld at 41,730.
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110. In response, several groups lobbied Defendants to include FDA-approved contraceptives (which included abortion-inducing drugs) in the "preventive care" requirements. See, e.g., http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm. Other commenters noted that "preventive care" could not be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be "prevented," and that a contrary view would intrude on the firmly held beliefs of many religious institutions by requiring them to pay for services that they viewed as intrinsically immoral. See, e.g., Comments ofUnited States Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
111. In addition to the U.S. Government Mandate that applies to group health plans for employees, on February 11, 2011, HHS also announced that, if colleges or universities contract with a health insurance issuer to provide insurance to their students, the health insurance issuer must provide these "preventive care" services in the student health plans. See Student Health Insurance Coverage, 76 Fed. Reg. 7767, 7772 (Feb. 11, 2011).
112. On August 1, 2011, HHS announced the "preventive care" services that group health plans and health insurance issuers would be required to cover. See HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost, available at http://www.hhs.gov/news/press/201 1pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release on its website rather than enactments in the Code of Federal Regulations or statements in the Federal Register.
113. The press release indicated that the guidelines were developed by a nongovernmental "independent" organization, the Institute ofMedicine ("IOM"). See id In
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developing the guidelines, 10M invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of abortioninducing drugs, sterilization, and contraception, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. ofMed., Clinical Preventive Services for Women app. Bat 217-21 (2011), available at http://www.nap.edu/openbook.php?record_id=13181 &page=R1.
114. The 10M's own report, in turn, included a dissent that suggested that the 10M's recommendations were made on an unduly short time frame without the necessary transparency, and that the process was largely subject to the preferences ofthe committee's composition.
115. The 10M also did not adhere to the rules governing federal agencies, including the notice-and-comment rulemaking process.
116. In conflict with the central compromise necessary for the Affordable Care Act's passage and President Obama's promise to protect religious conscience, the guidelines required group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See http://www.hrsa.gov/womensguidelines/.
117. FDA-approved contraceptives that qualify under these guidelines can induce
I
abortions. The FDA has approved "emergency contraceptives," including the morning-after pill (othenvise known as Plan B), which can operate by preventing a fertilized embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or Ella), which likewise can induce abortions of living embryos.
118. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had previously enacted in July 2010. See Group Health Plans and
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Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Defendants issued the amendments again without notice-and-comment rulemaking on the same grounds (namely, that it would be "impracticable and contrary to the public interest" to delay putting the rules into effect) that they had provided for bypassing the APA with the original rules. See id at 46,624.
119. When announcing the amendments, Defendants ignored the view that "preventive care" should exclude abortion-inducing drugs, sterilization, or contraception. Instead, they noted only that "commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom." Id at 46,623.
120. In response, Defendants crafted a narrow religious exemption. They sought "to provide for a religious accommodation that respect[ed]" only ''the unique relationship between a house of worship and its employees in ministerial positions." Id They ignored all other religiously affiliated entities.
121. Specifically, the regulatory exemption covers only group health plans "established and maintained by" employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals of the same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(l)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such gUidelines. (B) For purposes of this subsection, a "religious employer" is an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization.
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(2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. Id at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)). 122. The exemption excludes the group health plans of all other religiously affiliated employers that view their missions as providing charitable, educational, and employment opportunities to all those who request it, regardless of their religious faith. 123. When issuing this interim final rule, Defendants did not explain why they issued such a narrow exemption. Nor did Defendants explain why they refused to incorporate other "longstanding Federal laws to protect conscience" that President Obama's executive order previously had promised to respect. See Exec. Order No. 13535, 75 Fed. Reg. at 15,599. 124. ERISA, for example, has long exCluded "church plans" from its requirements, more broadly defmed to cover civil law corporations, including universities, that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. 125. Likewise, the Affordable Care Act itself excludes from its requirement that all individuals purchase insurance those individuals who have a religious objection to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(l), 5000A(d)(2). 126. Defendants did not consider whether Defendants had a compelling interest to require religious institutions to include services in their group health plans that they viewed as immoral, or whether Defendants could achieve their views of sound policy in a more accommodating manner.
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127. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules.
128. Numerous organizations expressed the same concerns that they had before, noting that abortion-inducing drugs, sterilization, and contraceptive services could not be viewed as "preventive care." They also explained that the religious exemption was "narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates." Comments of United States Conference of Catholic Bishops (Aug. 31, 2011), available at http://www.usccb.org/about/generalcounsel/rulemak.ing/upload/comments-to-hhs-on-preventive-services-2011-08 .pdf.
129. The Alliance Defense Fund, on behalf of organizations including Franciscan University, noted that religious organizations such as the University "have a legal right not to be required to offer to pay for health insurance coverage that includes practices to which they have a religious or moral objection, and not to be forced to choose between offering such coverage, paying a fine, or offering no coverage at all." Letter of Alliance Defense Fund to Centers for Medicare & Medicaid Services of Defendant HHS (Sept. 29, 2011).
130. On October 5, 2011, less than two weeks after the Alliance Defense Fund letter, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. She told the prochoice crowd that "we are in a war," apparently with opponents offederal funding of abortionrelated services or federal mandates requiring health plans to cover abortion-related services.
131. Three months later, on January 20, 2012, "[a]fter evaluating [the new] comments" to the interim final rules, Defendants responded. They did not request further discussion or attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short press release. See HHS, A Statement by U.S. Department of Health and
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Human Services Secretary Kathleen Sebelius, available at http:i/www.hhs.gov/news/press/20 12pres/O1/20120120a.html.
132. The press release announced, with little analysis or reasoning, that HHS opted to keep the religious employer exemption unchanged.
133. The press release also indicated that non-qualifying religious organizations would receive a reprieve from the U.S. Government Mandate for a limited time. "Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law." Id
134. Taken together, these various rules and press releases amount to a mandate that requires most religiously affiliated organizations to provide coverage for services in their health plans that are directly contrary to their religious beliefs. The U.S. Government Mandate and its narrow religious exemption are the current, operative law. Catholic organizations have until August 1, 2013, to comply with this law or face the substantial fmes that will accompany noncompliance.
C. The White House's Proposed "Accommodation" 135. On February 10, 2012, given the public outcry to the U.S. Government Mandate and its exceedingly narrow exemption, the White House held a press conference and issued another press release. 136. The White House announced that it had come up with a "solution" to objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion-inducing drugs, sterilization, or contraception "will be required to directly offer ... contraceptive care [to participants] free of charge." White House, Fact Sheet: Women's Preventive Services and Religious Institutions
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(Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheetwomen-s-preventive-services-and-religious-institutions.
137. HHS has since indicated that a similar arrangement will apply for student health plans that colleges and universities provide to students through a health insurance issuer. Student Health Insurance Coverage, 77 Fed. Reg. 16,453, 16,457 (Mar. 21, 2012).
138. Despite continued objections that the accommodation did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: "No, this is our plan." David Eldridge & Cynthia Wetzstein, White House says contraception compromise will stand, The Washington Times, Feb. 12, 2012, available at http://www.washingtontimes.com/news/2012/feb/12/whitehouse-birth-control-compromise-will-stand/print/.
139. About the same time as the White House's proposed accommodation, Defendants finalized, "without change," the interim fmal rules containing the religious employer exemption. They also issued guidelines regarding the previously announced one-year "temporary enforcement safe harbor" for "non-exempted, non-profit religious organizations with religious objections to covering" abortion-inducing drugs, sterilization, or contraception. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Mfordable Care Act, 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012); see Ctr for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb.
a- 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/021 02012/2012021
Preventive-Services-Bulletin.pdf. 140. The final rule indicates that prior to the end of the safe-harbor period, the
Defendants "plan to initiate a rulemaking to require issuers to offer insurance without
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contraception coverage to [an objecting religious] employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing." 77 Fed. Reg. at 8728.
141. The temporary safe harbor also applies to student health plans. 77 Fed. Reg. at 16,457.
142. On March 16,2012, Defendants issued an Advance Notice of Proposed Rulemaking ("ANPRM"), seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). All proposed scenarios involve an "independent entity" that would "provide [the U.S. Government Mandated] coverage automatically to participants and beneficiaries covered under the organization's plan (for example, without an application or enrollment process)." Id at 16,505 (emphasis added).
143. The ANPRM does not, and does not suggest that Defendants plan to, alter the scope of the narrow religious employer exemption.
144. The ANPRM does not alter existing law. It merely states that the Government may do so at some point in the future. III. The U.S. Government Mandate, the Religious Employer Exemption, and the
Proposed Accommodation Violate Plaintiffs' Religious Beliefs and Federal Rights A. The U.S. Government Mandate Conflicts With Plaintiffs' Sincerely Held
Religious Beliefs 145. Plaintiffs believe, in accordance with the Catechism of the Catholic Church, that the "dignity of the human person is rooted in his creation in the image and likeness of God," Catechism of the Catholic Church ~ 1700, and that "[h]uman life must be respected and protected absolutely from the moment of conception," id ~ 2270. Therefore, Plaintiffs believe that abortion is "gravely contrary to the moral law." ld ~ 2271.
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146. Likewise, Plaintiffs adhere to traditional Catholic teachings on the nature and purpose of human sexuality. They believe, in accordance with the Catechism of the Catholic Church, that the sexual union of spouses "achieves the twofold end of marriage: the good of the spouses themselves and the transmission of life. These two meanings or values of marriage cannot be separated without altering the couple's spiritual life and compromising the goods of marriage and the future of the family." Id ~ 2363. Consequently, Plaintiffs believe that "every action," including artificial contraception and sterilization, "which ... proposes, whether as an end or as a means, to render procreation impossible is intrinsically evil." Id IIi[ 2370.
147. Effectuating these beliefs, Franciscan University houses the first Tomb of the Unborn Child, a memorial where seven aborted babies are buried that serves as a place of prayer for the end of abortion and as a place of healing for the survivors of abortion. The Tomb also pays tribute to the millions of aborted babies, reflecting the university's strong pro-life commitment. The University also vigorously exercises its freedom of speech on the issue of abortion. University President Father Terence Henry personally leads over 350 students on University-sponsored buses to Washington, D.C., each year for the March for Life, and some estimate that another 400 students attend on their own. The University's green-and-white banner has become a fixture in the march. Additionally, the Students for Life club is very active, including holding a prayer ministry outside abortion clinics four days a week.
148. The Michigan Catholic Conference has long effectuated Catholic beliefs in a similar fashion. It has supported such things as state initiatives that provide alternatives to abortion and assistance to pregnant women, state laws that seek to ban partial-birth abortion, and limits on human-embryo research.
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149. Plaintiffs' sincerely held religious beliefs treat abortion, sterilization, and contraception as intrinsically immoral, and prohibit them from paying for, providing, and/or facilitating those practices.
150. Plaintiffs have adhered to their religious beliefs and have ensured that their group health plans do not include coverage for prohibited abortion, sterilization, contraception, or related education and counseling.
151. The U.S. Government Mandate would require Plaintiffs to pay for, provide, and/or facilitate the provision of services that are contrary to their religious belief.
152. The U.S. Government Mandate also seeks to compel Plaintiffs to fund related "patient education and counseling for all women with reproductive capacity." It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
153. Refusal or failure to provide these items could expose Plaintiffs to various monetary penalties.
154. In short, the U.S. Government Mandate's requirement that group health plans offer free coverage for abortion-inducing drugs, sterilization, and contraception and related counseling or pay a fee substantially burdens Plaintiffs' sincerely held religious beliefs.
155. The Government has no compelling interest to force Plaintiffs to violate their religious beliefs in this way. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. To
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the extent the Government wanted to make them more available, it could provide or pay for the objectionable services through programs established by duly enacted laws.
B. The Religious Employer Exemption Aggravates The Substantial Burdens Imposed On Plaintiffs' Religious Exercise
156. The "religious employer" exemption does not remedy the U.S. Government Mandate's affront to religious liberty. To determine whether a group health plan qualifies for the exemption, Defendants would have to determine the "religious values" of the organization that "established and maintained" the plan and also whether the "purpose" of the organization was to "inculcate" people into those values.
157. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organization employs and serves.
158. The Government would then have to compare and contrast the religious practices and beliefs of the individuals with those of the organization to determine how many of the individuals "share" the organization's "religious tenets."
159. The religious exemption is also wholesale unavailable to any entity that does not qualify as an organization described in Section 6033(a)(l) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986.
160. The religious employer exemption uses vague, undefined terms that give the Government broad discretion to issue exemptions, and fails to provide organizations with notice of their duties a.'l.d obligations.
161. It is unclear how the Government defmes or will interpret the "purpose" of an organization.
162. It is unclear how the Government defmes or will interpret vague terms, such as "primarily," "share" and "religious tenets."
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163. It is unclear how the Government will ascertain the "religious tenets" of an organization, those it employs, and those it serves.
164. It is unclear how much overlap the Government will require for religious tenets to be "share[d]."
165. Similarly, there is no indication of whether an organization with multiple purposes can qualify. And there is no indication of what an entity must do even to attempt to qualify for this religious exemption.
166. This narrow exemption compounds the U.S. Government Mandate's substantial burdens on Plaintiffs' religious exercise while discriminating against and among religions and excessively entangling Defendants in religion.
167. First, this exemption does not relieve the substantial burdens on Plaintiffs' religious exercise caused by the U.S. Government Mandate.
168. Most obviously, as an educational organization under Section 170(b)(1)(A)(ii) of the Internal Revenue Code, Franciscan University appears to be ineligible for the exemption.
169. It is also unclear whether the MCC Plan qualifies for the exemption because it is sponsored by MCC rather than Michigan's seven Dioceses.
170. Regardless, in addition to believing in the sanctity of human life from conception, Plaintiffs also believe that devotion to God is demonstrated through devotion to fellow man and service of others; the two are so closely related and dependent upon each other that they cannot be separated. Catholic doctrine recognizes that "[l]iving faith 'work[s] through charity."' Catechism ofthe Catholic Church, 1814. As Pope Benedict has recently stated, "love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church
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cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." Pope Benedict XVI, Deus Caritas Est~ 22 (2006).
171. The religious employer exemption does not account for this important doctrine of Catholic faith. Instead, it requires organizations to be limited to inculcation, and to employ and serve primarily individuals of the same beliefs. The U.S. Government Mandate thus interferes with Plaintiffs' religious mission to serve all people, regardless of whether they share the same faith.
172. Plaintiffs cannot be forced to choose between their beliefs on abortion, sterilization, and contraception, their beliefs on serving all mankind, or substantial fines.
173. Second, the exemption discriminates against Plaintiffs and the entities that participate in the MCC Plan.
174. By exempting only religious organizations that engage in "inculcation," the exemption provides preferential treatment to religious organizations that primarily seek to proliferate their own beliefs and discriminates against religious organizations that pursue other purposes. Plaintiffs have the right to determine the religious missions that they will undertake, without Government interference and without burdens on their religious liberties.
175. Likewise, the exemption seeks to improperly limit the definition of religion to those who primarily employ and serve "persons who share the religious tenets of the organization." This requirement, too, discriminates against religious organizations that view their purposes as serving all mankind, not simply individuals with the same tenets.
176. The U.S. Government Mandate and its narrow religious employer exemption thus discriminate against Plaintiffs and other institutions whose religious missions require them to
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serve more than individuals of the same religion. It favors religions that do not believe in serving all humanity, by exempting them, but not others with broader religious purposes.
177. The religious employer exemption also targets Plaintiffs precisely because they commit to educate, serve, and employ people of all faiths.
178. Third, the religious employer exemption mandates an invasive, impermissible, and unconstitutional assessment of Plaintiffs' religious purpose, as well as the religious tenets of Plaintiffs, their employees, and the people they serve. Regardless of outcome, by mandating this intrusive investigation, Defendants have excessively entangled themselves with Plaintiffs' religious missions.
C. The Proposed Accommodation Does Not Allow Plaintiffs To Adhere To Their Sincerely Held Religious Beliefs
179. The White House's proposed "accommodation" does not relieve Plaintiffs from the unconscionable position in which the U.S. Government Mandate currently puts them.
180. First, the "accommodation" is not operative law. Rather, the U.S. Government Mandate is current law.
181. Second, the promised "accommodation" would not alter the fact that Plaintiffs would be required to facilitate practices that run directly contrary to their religious beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
182. Third, any requirement that insurance companies or other independent entities provide preventive services "free of charge" is illusory. Those entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the proposed accommodation, doctors would still have to be paid to
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prescribe contraception and drug companies and pharmacists would still have to be paid for providing it.
183. Fourth, the accommodation will not change the narrow religious exemption. 184. In short, while the President claimed to have "f[ou]nd a solution that works for everyone" and that ensures that "[r]eligious liberty will be protected," in reality, his "accommodation" does neither. D. Plaintiffs Have Need For Immediate Relief 185. Plaintiffs are already being affected by the U.S. Government Mandate, and presently require judicial determination of their statutory and constitutional rights. 186. Plaintiffs have expended resources learning about the U.S. Government Mandate, including its exemption and temporary safe harbor. Plaintiffs have also been working to ensure that their 2013 health plans comply with that one-year safe harbor. 187. Plaintiffs also need to know whether they will be forced to comply with the U.S. Government Mandate now, rather than days or months before the end of the temporary safe harbor. 188. The Government issued the press releases and rules that constitute the U.S. Government Mandate without notice-and-comment rulemaking precisely because the "requirements in [those provisions] require significant lead time in order to implement." 75 Fed. Reg. at 41,730. 189. Health plans do not take shape overnight. Many analyses, negotiations, and decisions must occur before Plaintiffs can implement them. 190. Implementing even basic changes requires substantial lead time. 191. In the interim, Plaintiffs may be subject to significant fines and penalties.
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192. The U.S. Government Mandate thus imposes a present and ongoing hardship on Plaintiffs.
193. Franciscan University is currently, and for the foreseeable future will be, negotiating new and existing employee contracts that will be in force when the U.S. Government Mandate begins applying to Franciscan University's health plans. Additionally, the University is currently planning and arranging employee compensation and benefits packages for the next several years.
194. The U.S. Government Mandate restricts and burdens Franciscan University's ability to attract quality employees and faculty due to uncertainty about its future healthinsurance benefits and the inability to make changes to improve those benefits.
195. Franciscan University can no longer alter its plan in the best interests of its employees because such alterations would cost the University its grandfathered status. For example, in the summer of2011, Franciscan University considered adding a high deductible plan to better serve its employees. That consideration was dropped because it would have jeopardized Franciscan University's grandfathered status.
196. Franciscan University has taken all steps to maintain its plan's grandfathered status because under the current law once the plan is not grandfathered the U.S. Government Mandate will apply.
197. Nevertheless, Franciscan University will lose its grandfathered status some time in the near future for reasons that cannot be avoided. For example, the employee contribution to the premium cannot increase by more than 5% of the cost of coverage compared to the employee contribution on March 23, 2010. 26 C.F.R. §54.9815-1251 T(g)(1)(v). Franciscan University
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currently splits cost increases evenly with its employees. Given the current trajectory of health care costs, Franciscan University will exceed that 5% within the next few years.
198. Similarly, Franciscan University has now decided to end its student health plan when the current plan year ends on August 15, 2012, partially due to the fact that regulations similar to the U.S. Government Mandate might apply to it.
199. If it is determined that regulations similar to the U.S. Government Mandate would not apply to a student health plan established or maintained by Franciscan University, the University would revisit this decision and determine whether a different course of action is appropriate.
200. The Michigan Catholic Conference and the MCC Plan likewise need an immediate declaration of rights concerning their status under the law.
201. The Michigan Catholic Conference has already been forced to sign an indemnification agreement with the third-party administrator of one of the MCC Plan's benefits programs (Blue Cross Blue Shield of Michigan) and the insurer of another of the MCC Plan's benefits programs (Blue Care Network of Michigan).
202. Under this agreement, the Michigan Catholic Conference has certified that the MCC Plan qualifies for the one-year safe harbor. Should this certification be mistaken, the agreement requires the Conference to indemnify these entities for any costs or expenses that they might incur as a result of their failure to provide the U.S. Government Mandate's coverage.
203. The Michigan Catholic Conference has currently refrained from certifying to these entities that the MCC Plan qualifies for the religious employer exemption precisely because of the uncertainty that exists concerning whether it does so.
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204. That is the case even though the MCC Plan covers the seven Michigan Dioceses and many other Catholic entities.
205. Yet Michigan Catholic Conference, not the Dioceses themselves, sponsors the Plan, and may not meet the religious employer exemption.
206. The Government has indicated that the exemption applies only to "[g]roup health plans sponsored by certain religious employers." HRSA, Women's Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/.
207. To the extent the Government would deny the religious exemption to the MCC Plan because it is sponsored by the Michigan Catholic Conference, rather than the Dioceses themselves, the Michigan Catholic Conference has urgent need for that information.
208. Though the Government's position is unclear, it appears that if an entity qualifies as a "religious employer" for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity's group health plan would also receive the benefit of the exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. at 16,502.
209. If the MCC Plan were to qualify as a plan "established or maintained" by a "religious employer" under the exemption to the U.S. Government Mandate, all Covered Units under the Plan also appear to receive the benefit.ofthe exemption.
210. If that were the case, the Michigan Catholic Conference would need to consider whether to make significant changes to the MCC Plan that would, among other things, make the Dioceses themselves the Plan Sponsors.
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211. Before making any change, Plaintiffs would need significant time to review their relevant plan options and to choose the course of action that would allow them to maintain their religious beliefs.
212. Once a change to their plans has been approved, moreover, it would likely take Plaintiffs at least six months to implement the change. During that time, they would need to communicate with all the relevant parties involved, including vendors and administrators, and provide employees with the required notice. The Michigan Catholic Conference would also need to have discussions with the entities that participate in its various plans.
213. In sum, Plaintiffs need to know their rights now so that they can begin developing their future health plans.
214. An actual, justiciable controversy exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries.
COUNT I Substantial Burden on Religious Exercise
in Violation ofRFRA 215. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 216. RFRA prohibits the Government from substantially burdening an entity's exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the burden furthers a compelling government interest and is the least restrictive means of furthering that interest. 217. RFRA protects organizations as well as individuals from government-imposed substantial burdens on religious exercise.
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218. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
219. The U.S. Government Mandate requires Plaintiffs' group health plans to provide, pay for, and/or facilitate services that are contrary to their religious beliefs.
220. To qualify for the "religious employer" exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs.
221. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion.
222. The Government has no compelling government interest to require Plaintiffs to comply with the U.S. Government Mandate.
223. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling government interest.
224. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
225. The Government is also requiring student health plans, including the one currently offered by Franciscan University, to include coverage for abortion-inducing drugs, sterilization, and contraception, and related education and counseling.
226. To require Franciscan's student health plan to include coverage for services that violate Franciscan's religious beliefs substantially burdens Franciscan's exercise of religion.
227. The Government has no compelling government interest to require Franciscan's student health plan to include coverage for services that violate Franciscan's religious beliefs.
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228. Requiring Franciscan's student health plan to include coverage for services that violate its religious beliefs is not the least restrictive means of furthering a compelling government interest.
229. Defendants have also violated RFRA by requiring Franciscan's student health plan to include services that violate Franciscan's religious beliefs.
230. Plaintiffs have no adequate remedy at law. 231. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTll Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 232. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 233. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion. 234. The Free Exercise Clause protects organizations as well as individuals from government-imposed burdens on religious exercise. 235. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate services that are contrary to their religious beliefs. 236. To qualify for the "religious employer" exemption to the U.S. Government Mandate, Plaintiffs must submit to an intrusive government inquiry into their religious beliefs. 237. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 238. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions. It offers multiple exemptions from its requirement that
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employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, and contraceptives, and related education and counseling.
239. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs' exercise of religion.
240. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
241. The Government has no compelling government interest to require Plaintiffs to comply with the U.S. Government Mandate.
242. The U.S. Government Mandate is not narrowly tailored to further a compelling government interest.
243. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs' religious exercise in violation of the Free Exercise Clause of the First Amendment.
244. The Government is also requiring student health plans, including the one currently offered by Franciscan University, to include coverage for abortion-inducing drugs, sterilization, and contraception, and related education and counseling.
245. To require Franciscan's student health plan to include coverage for services that violate Franciscan's religious beliefs substantially burdens Franciscan's exercise of religion.
246. The Government has no compelling government interest to require Franciscan's student health plan to include coverage for services that violate Franciscan's religious beliefs.
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247. Requiring Franciscan's student health plan to include coverage for services that violate Franciscan's religious beliefs is not the least restrictive means of furthering a compelling government interest.
248. Defendants have also violated the Free Exercise Clause of the First Amendment by requiring Franciscan's student health plan to include services that violate Franciscan's religious beliefs.
249. Plaintiffs have no adequate remedy at law. 250. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT ill Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 251. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 252. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government. 253. This prohibition on excessive entanglement protects organizations as well as individuals. 254. To qualify for the exemption to the U.S. Government Mandate for "religious employers," entities must submit to an invasive government investigation into an organization's religious beliefs, including whether the organization's "purpose" is the "inculcation of religious values" and whether the organization ''primarily employs" and "primarily serves" individuals who share the organization's religious tenets. 255. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
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256. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
257. The U.S. Government Mandate is therefore unconstitutional and invalid. 258. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 259. Plaintiffs have no adequate remedy at law. 260. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment 261. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 262. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 263. This mandate of equal treatment protects organizations as well as individuals. 264. The U.S. Government Mandate's narrow exemption for certain "religious employers" but not others discriminates on the basis of religious views or religious status. 265. The U.S. Government Mandate's definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities' religious beliefs or practices. 266. The U.S. Government Mandate's definition of religious employer furthers no compelling government interest. 267. The U.S. Government Mandate's definition of religious employer is not narrowly tailored to further a compelling government interest.
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268. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment.
269. Plaintiffs have no adequate remedy at law. 270. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTV Interference in Matters of Internal Church Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment 271. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 272. The Free Exercise Clause and Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 273. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's structure, ministers, or doctrine. 274. 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. 275. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 276. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral. 277. The Government may not interfere with, or otherwise question, the decision of the Catholic Church that its religious organizations should abide by these views. 278. Plaintiffs have abided, and continue to abide by, the decision of the Catholic Church to treat abortion, sterilization, and contraception as intrinsically immoral.
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279. The U.S. Government Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring their health plans to facilitate practices that directly conflict with Catholic beliefs.
280. The U.S. Government Mandate's interference with Plaintiffs' internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their Catholic beliefs.
281 . Plaintiffs believe that they are an integral part of the Catholic Church that serve from the heart of the Church.
282. The U.S. Government Mandate and its religious employer exemption interfere with the organizational structure of Plaintiffs as part of the Catholic Church by requiring them to facilitate services that directly conflict with their Catholic tenets but purporting to exempt the Catholic Church.
283. Because the U.S. Government Mandate interferes with the internal decisionmaking and organizational structure of Plaintiffs in a manner that affects their faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
284. For the same reasons, Defendants' requirement that student health plans, like the one currently offered by Franciscan University, include abortion-inducing drugs, sterilization, and contraception, and related education and counseling, also violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
285. Plaintiffs have no adequate remedy adaw. 286. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 287. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 288. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 289. The First Amendment protects organizations as well as individuals against compelled speech. 290. Expenditures are a form of speech protected by the First Amendment. 291. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious beliefs. 292. The U.S. Government Mandate would compel Plaintiffs to include in health care plans that they offer employees practices that violate their religious beliefs. 293. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these practices. 294. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs. 295. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny. 296. The U.S. Government Mandate furthers no compelling government interest. 297. The U.S. Government Mandate is not narrowly tailored to further a compelling govemment interest. 298. For the same reasons, Defendants' requirement that student health plans, like the one currently offered by Franciscan University, include coverage for abortion-inducing drugs,
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sterilization, and contraception, and related education and counseling, also violates the Free Speech Clause ofthe First Amendment.
299. Plaintiffs have no adequate remedy at law. 300. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warra'lts relief.
COlll'il VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of the APA 301. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 302. The Affordable Care Act expressly delegates to an agency within HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide. 303. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 304. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. 305. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the 10M. 306. The IOM did not permit or provide for the broad public comment otherwise allowed under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
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307. Within two weeks of the 10M issuing its guidelines, HHS issued a press release announcing that the 10M's guidelines were required under the Affordable Care Act.
308. Defendants have never indicated reasons for failing to enact the "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
309. Defendants also failed to engage in notice-and-comment rulemaking when issuing interim final rules and the final rule.
310. Defendants' stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute "good cause." Providing public notice and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
311. By enacting the "preventive care" guidelines and the interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
312. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
313. Plaintiffs have no adequate remedy at law. 314. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTVIIT Arbitrary and Capricious Action in Violation of the APA 315. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 316. The APA condemns agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
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317. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made.
318. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it.
319. A court reviewing agency action may not supply a reasoned basis that the agency itselfhas failed to offer.
320. Defendants failed to consider the suggestion of many commenters that abortioninducing drugs, sterilization, and contraceptives could not be viewed as "preventive care."
321. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened.
322. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions that they made.
323. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
324. Defendants' promulgation ofthe U.S. Government Mandate violates the APA. 325. For the same reasons, Defendants' requirement that student health plans like Franciscan's must include abortion-inducing drugs, sterilization, and contraception, and related education and counseling, also violates the APA. 326. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 327. Plaintiffs have no adequate remedy at law.
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328. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IX Acting Illegallv in Violation of the APA 329. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 330. The APA requires that all Government agency action, findings, and conclusions be "in accordance with law." 331. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA. 332. The Weldon Amendment states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(l), 125 Stat 786, 1111 (2011). 333. The Affordable Care Act states that "nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year." 42 U.S.C. § 18023(b)(l)(A)(i). It adds that "the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]" ld § 18023(b)(1)(A)(ii). 334. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision ofhealth plans
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that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be required to provide such plans.
335. The U.S. Government Mandate requires group health plans to provide coverage for abortion-inducing drugs, contraceptives, sterilization, and related education. It does not permit employers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
336. The U.S. Government Mandate violates RFRA. 337. The U.S. Government Mandate violates the First Amendment. 338. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 339. For the same reasons, Defendants' requirement that student health plans like Franciscan's must include coverage for abortion-inducing drugs, sterilization, and contraception, and related education and counseling, also violates RFRA and the First Amendment and, therefore, is not in accordance with law and violates 5 U.S.C. § 706(2)(A). 340. In addition, the Affordable Care Act states that, "nothing in this title (or an amendment made by this title) shall be construed to prohibit an institution of higher education .. . from offering a student health insurance plan ...." 42 U.S.C. § 18118(c). This provision has been interpreted as prohibiting any law, which would have the effect of prohibiting an institution of higher education from offering a student health plan. Student Health Insurance Coverage, 76 Fed. Reg. at 7769. 341. The requirement that student health plans offered through a health insurance issuer include abortion-inducing drugs, sterilization, and contraception, and related education
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and counseling, however, has the effect of prohibiting Franciscan from offering a student health insurance plan. Defendants' requirement that student health plans offered through a health insurance issuer include abortion-inducing drugs, sterilization, and contraception, and related education and counseling, therefore, also violates 42 U.S.C. § 18118(c) and thus is not in accordance with law under 5 U.S.C. § 706(2)(A).
342. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
343. Plaintiffs have no adequate remedy at law. 344. Defendants' failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief. WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Enter a declaratory judgment that Defendants' requirement that student health
plans include coverage for abortion-inducing drugs, sterilization, and contraception, and related education and counseling violates Franciscan's rights
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Case: 2:12-cv-00440-GCS-MRA Doc #: 2 Filed: 05/21/12 Page: 58 of 59 PAGEID #: 61 under RFRA and the First Amendment; enter an injunction prohibiting the Defendants from enforcing that requirement against Franciscan; and enter an order vacating the requirement;
7. Award Plaintiffs attorney's and expert fees under 42 U.S.C. § 1988; and 8. Provide all other relief as the Court may deem just and proper.
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Case: 2:12-cv-00440-GCS-MRA Doc #: 2 Filed: 05/21/12 Page: 59 of 59 PAGEID #: 62
Respectfully submitted, this 21st day of May, 2012.
Matthew A. Kairis (OH No. 55502) (Trial Attorney) Eric E. Murphy (OH No. 83284) Brandy H. Ranjan (OH No. 86984) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Paul M. Pohl (PAID No. 21625) John D. Goetz (PAID No. 47759) Leon F. DeJulius, Jr. (PAID No. 90383) Ira M. Karoll (PAID NO. 310762) JONES DAY 500 Grant Street- Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 (Pending Motions for Admission Pro Hac Vice)
Counsel for Plaintiffs
Adam E. Scurti General Counsel FRANCISCAN UNIVERSITY OF STEUBENVILLE 1235 University Boulevard Steubenville, OH 43952-1763 (740) 283-6526
Counsel for Franciscan University ofSteubenville

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

FRANCISCAN UNIVERSITY OF STEUBENVILLE, et al.,
Plaintiffs, v. KATHLEEN SEBELIUS, et al.,
Defendants.

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:

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Case No. 2:12-CV-440

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:

JUDGE ALGENON L. MARBLEY

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:

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Magistrate Judge Mark Abel

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OPINION & ORDER

I. INTRODUCTION

This matter comes before the Court on all Defendants’ Joint Motion to Dismiss for Lack

of Jurisdiction (“the Motion”) (Doc. 23). For the reasons set forth herein, Defendants’ Motion is

GRANTED. This action is DISMISSED in its entirety.

II. BACKGROUND

A. The Parties

Plaintiffs, two Roman Catholic, non-profit organizations, bring this action challenging

the legality of the “Patient Protection and Affordable Care Act” (“ACA”), Pub. L. No. 111 –

148, 124 Stat. 119 (2010), and its implementing regulations. Plaintiff Franciscan University of

Steubenville (“Franciscan”) instructs approximately 2,500 students in “a Catholic educational

environment” and has 450 employees. Plaintiffs’ Memorandum in Opposition, Doc. 31 at 7.

Franciscan accepts students “of all faiths and creeds” and “does not know the religious makeup

of its non-faculty employees.” Id. Its employee health plan is “grandfathered” under the ACA,

and thus unaffected by the ACA’s Mandate. Id.

Plaintiff Michigan Catholic Conference (“MCC”) is a Roman Catholic advocacy group that “sponsors and administers several benefits programs” for employees of Michigan’s seven Roman Catholic dioceses, as well as Roman Catholic schools and charities across Michigan. Id. The primary benefit program implicated by this case is the “Michigan Catholic Conference Amended and Restated Group Health Benefit Plan for Employees – Revised (“the MCC Plan”). Id. MCC alleges the MCC Plan lost “grandfathered” status under the ACA due to recent changes to the benefits program. Id.
Defendants are various officials, in their official capacities, and departments of the United States Government charged with enforcing the ACA.
B. Relevant Provisions of the Affordable Care Act The ACA, with its accompanying regulations, requires “all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing.” Defendants’ Motion to Dismiss, Doc. 23-1 at 1. These recommended services include reproductive health services specific to women. Defendant Department of Health and Human Services (“HHS”) commissioned the Institute of Medicine (“IOM”), a part of the National Academy of Sciences funded by Congress, to report on what those reproductive services should include. Id. at 5. Among the services recommended by the IOM Report, and at issue in this case, are “the full range of [FDA]-approved contraceptive methods, sterilizations procedures, and patient education and counseling for women with reproductive capacity.” Id. at 6. Significant to note is that a health plan in which an individual was enrolled on March 23, 2010 remains unchanged by the ACA, unless said plan “or its sponsor enters into a new policy, certificate, or contract of
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insurance after March 23, 2010 that is effective before November 15, 2010,” in which case the plan ceases to be grandfathered and is subject to the ACA. 45 C.F.R. § 147.140.
In recognition of the fact that a number of religious groups oppose the use of contraception and sterilization, Defendants included an exemption for “religious employers.” To qualify, an employer must 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. (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. § 147.130 (a)(1)(iv)(B). The referenced sections in 6033 of the Internal Revenue Code refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order” that are tax-exempt under 26 U.S.C. § 501(a). Defendants adopted the definition of “religious employer” in the final regulations, but also created a “temporary enforcement safe harbor” for plans offered by certain entities not defined as religious employers, but that are nonetheless non-profit organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012). The safe harbor criteria are as follows: (1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan sponsored by the organization, consistent with any applicable state law, because of the religious beliefs of the organization.
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(3) The group health plan sponsored by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that the plan will not provide contraceptive coverage for the first plan year beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies the three criteria above, and documents its self-certification in accordance with prescribed procedures.
77 Fed. Reg. 16,501, 16,504 (March 21, 2012). Particularly relevant to Plaintiff Franciscan is that safe harbor covers institutions of higher education and the issuer of their student health insurance plans if the institution and its plan also satisfy the four criteria. 77 Fed. Reg. 16,45657. Safe harbor remains in effect until August 1, 2013. Any plan with a plan year beginning on or after that date will no longer be protected from enforcement. Id.
Although the ACA passed into law on March 23, 2010, the breadth of the legislation has required further rulemaking prior to enforcement. On March 21, 2012 Defendants published an “advance notice of proposed rulemaking” (“ANPRM”) specifically intended to begin addressing Plaintiffs’ concerns: “[Defendants] would establish alternative ways to fulfill the requirements of [the ACA] when health coverage is sponsored or arranged by a religious organization that objects to the coverage of contraceptive services for religious reasons and that is not exempt under the final regulations published February 15, 2012.” 77 Fed. Reg. 16,501. According to Defendants’ own statement in the proposed rules, the ANPRM “is the first step toward promulgating these amended final regulations . . . to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, non-profit religious organizations with religious objections to such coverage.” Id.
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On February 6, 2013, Defendants followed through on that statement by releasing a notice of proposed rulemaking (NPRM).1 The NPRM proposes amendments to the ACA and opens a comment period until April 8, 2013. 78 Fed. Reg. 8456. One amendment would alter the definitions of “religious employer” under the ACA, eliminating the first three requirements so that an employer that “is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. 8461. The purpose of that change is to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths.” 78 Fed. Reg. 8459.
Plaintiffs brought this action, seeking declaratory relief, on May 21, 2012. The Complaint recites nine causes of action: one under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb – 2000bb-4; five under the First Amendment of the U.S. Constitution, and; three under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Defendants filed this Motion to Dismiss for Lack of Jurisdiction on August 6, 2012. The Motion has been fully briefed and is ripe for review.
III. STANDARD OF REVIEW Subject matter jurisdiction is a threshold matter that a court must decide prior to considering a claim’s merits. City of Health, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975 (S.D.Ohio 1993). Rule 12(b)(1) provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is challenged. Rogers v. Stratton
1 Defendants had represented to other courts, including the D.C. Circuit Court of Appeals, that they would issue an NPRM prior to the end of the first quarter of 2013. See Wheaton Coll. V. Sebelius, ___ F.3d ___, 2012 WL 6652505, at *1 (D.C. Cir. Dece. 18, 2012).
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Indus., 798 F.2d 913, 915 (6th Cir.1986). Attacks on subject matter jurisdiction may be either
facial attacks or factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A
facial attack challenges the legal sufficiency of the complaint. When considering such a
challenge, the court “must take the material allegations of the petition as true and construe[]
[them] in the light most favorable to the nonmoving party.” Id. To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). A legal conclusion couched as a
factual allegation, however, need not be accepted as true. Fritz v. Charter Township of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
IV. LAW & ANALYSIS
Defendants’ Motion states two grounds for dismissal: (1) lack of ripeness; and (2) lack of
standing. The Court first addresses the narrower issue of ripeness. Since the Court finds this dispute is not ripe for adjudication, it is not necessary to address standing.2
This Court is one of limited jurisdiction, granted authority under Article III of the U.S.
Constitution to adjudicate only actual “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1.
The jurisprudence of justiciability doctrines has developed to ensure federal courts do not
transgress that fundamental limitation. Ripeness is one such justiciability doctrine, “drawn both
from Article III limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n. 18 (1993). Enforcing
2 Although this Court does not formally reach the question of standing in this case, it notes that the majority of the fifteen courts that have found plaintiffs’ ACA challenges lacked ripeness also found plaintiffs’ lacked standing because they had not suffered an injury, or the injury alleged was not imminent. Recently, the Supreme Court issued a 5-4 decision in Amnesty Int’l. USA v. Clapper which also suggests Plaintiffs would fail a standing inquiry were this Court to reach the issue. 2013 WL 673253 at *3 (Feb. 26, 2013) (holding “Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing – because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.)
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ripeness requirements “prevents a court from engaging in a premature adjudication of an issue, particularly when an administrative decision is not yet final.” [emphasis added] Conlon v. Sebelius, 2013 WL 500835, ___ F.Supp.2d ___ (N.D. Ill. Feb. 8, 2013) (citing National Park Hospitality Association v. Department of the Interior, 538 U.S. 803, 807-8) (2003).
Jurisprudentially, ripeness is a subtle issue “whose threshold is notoriously hard to pinpoint.” Pittsburgh Mack Sales &Serv. Inc. v. Int’l. Union of Operating Eng’rs, Local Union, 580 F.3d 185, 190 (3d Cir. 2009). To assist courts in pinpointing that threshold, the Supreme Court has stated that “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). In Abbot Laboratories v. Gardner, 387 U.S. 136, 149 (1967), the Court held that ripeness turns on “the fitness of the issue for judicial decision” and “the hardship to the parties of withholding court consideration.”
The Sixth Circuit has elaborated on that guidance in setting out three “key factors” when assessing ripeness: (1) the likelihood that the harm alleged by the party will ever come to pass; (2) the hardship to the parties if judicial relief is denied at this stage in the proceedings; and (3) whether the factual record is sufficiently developed to produce a fair adjudication of the merits.” Dealer Computer Services, Inc. v. Dub Herring Ford, 547 F.3d 558, 561 (6th Cir. 2008).3 In observing that even a “final agency action” may not be ripe for judicial review, the Sixth Circuit directed courts to “avoid pre-enforcement challenges that do not permit enforcement agencies to refine their policies.” Ammex, Inc. v. Cox, 351 F.3d 697, 708 (6th Cir. 2003). Unlike standing, which is assessed at the time the suit is filed, “[i]n determining ripeness, a court may consider
3 While Plaintiffs correctly note that “the ripeness analysis ‘is somewhat relaxed in the First Amendment context,’” it is not so relaxed as to vitiate the Sixth Circuit’s ripeness analysis, nor so relaxed as to allow this Court jurisdiction over a matter which is not an actual case or controversy. Miller v. City of Cincinnati, 2008 WL 3890032, at *3 (S.D. Ohio Aug. 19, 2008).
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events that occurred after the filing of the complaint.” Newark Branch, NAACP v. Millburn Township, 1990 WL 238747 at *4 (D.N.J. Dec. 27, 1990) (citing, e.g., American Motorists Ins. Co. v. United Furnace Co., 876 F.2d 293, 302 n. 4 (2d Cir. 1989).
Finally, while this Court is not bound by the decisions of the other courts that have reviewed challenges to the ACA brought by similar non-profit religious organizations, the Court notes that, to date, no fewer than fifteen federal courts, including two others in the Sixth Circuit, have found these challenges were not ripe for adjudication, most of them also found the plaintiffs lacked standing. See, e.g., Roman Catholic Diocese of Dallas v. Sebelius, No. 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013); Conlon v. Sebelius, No. 1:12-cv-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013); Archdiocese of St. Louis v. Sebelius, No. 4:12-cv-924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Washington v. Sebelius, No. 12-cv-0815 (ABJ), 2013 WL 285599 (D.D.C. Jan. 25, 2013); Most Reverend Lawrence T. Persico v. Sebelius, No. 1:12-cv-00123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colo. Christian Univ. v. Sebelius, No. 11-cv-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, No. 1:12-cv-01276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013); Univ. of Notre Dame v. Sebelius, No. 3:12-cv-00523, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012), appeal noticed (6th Cir. Mar. 1, 2013); Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-00158, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012); Most Reverend David A.Zubik v. Sebelius, No. 2:12-cv-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Nebraska v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-3035, 2012 WL 2913402 (D. Neb. July 17, 2012); Wheaton Coll.v. Sebelius, No. 12-5273, 2012 WL 6652505 (D.C. Cir. Dec.
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18, 2012) (affirming in part and holding in abeyance appeals in Wheaton Coll. v. Sebelius, Civil Action No. 12-1169 (ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012), and Belmont Abbey Coll. v. Sebelius, 878 F.Supp.2d 25 (D.D.C. 2012)).4
A. First Factor: Likelihood the Alleged Harm Will Ever Come to Pass For the same reasons discussed by courts in the aforementioned decisions, this Court finds Plaintiffs’ claims lack ripeness and are not fit for adjudication. Considering the first of three “key factors” of ripeness, the harm alleged is unlikely to “ever come to pass.” Currently, Plaintiffs are both protected from ACA enforcement actions by the “safe harbor” provision. This “safe harbor” persists until Plaintiffs’ new plan year begins on January 1, 2014.5 Plaintiffs’ Memorandum in Opposition, Doc. 31 at 15. In addition to the “safe harbor” protections, Defendants have represented to this Court, and numerous other federal courts, that they “would never enforce 45. C.F.R. § 147.130(a)(1)(iv) in its [then] current form against [plaintiff, a nonprofit religious organization,] or those similarly situated as regards contraceptive services.” Wheaton Coll., No. 12-5273, 2012 WL 6652505 (D.C. Cir. Dec. 18, 2012). This Court agrees with the D.C. Circuit that “[w]e take the government at its word and will hold it to it.” Id. Although the Court need not accept a government agency’s representations of its intent, generally, government agencies are presumed to act in good faith. Belmont Abbey College, 878 F.Supp.2d 25, 36-7 (D.D.C. 2012) (citing various). Defendants’ subsequent promulgation of amendments to the ACA in the NPRM, however, demonstrates they are acting in good faith to address Plaintiffs’ concerns. In fact, due
4 The Court also notes, but finds wholly unpersuasive, two decisions representing a minority position, which have found similar claims to those here justiciable. See Roman Catholic Diocese of Forth Worth v. Sebelius, No. 4:12-cv00314-Y-TRM (N.D. Tex. Jan. 31, 2013); Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12 Civ. 2542(BMC), 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012). 5 As noted in Section II of this Opinion & Order, Plaintiff Franciscan’s health plans are also protected from ACA enforcement because they are deemed “grandfathered,” though some plans of Plaintiff MCC appear to have lost “grandfathered” status.
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to the NPRM’s amendments, the alleged harm is virtually certain not to occur. The proposed regulations in the ANPRM which Plaintiffs originally challenged have been amended specifically to address Plaintiffs’ concerns. The definition of “religious employer” in the ANPRM, which Plaintiffs contend is too narrow to protect them from ACA enforcement, has been significantly broadened so that non-profit religious organizations such as Plaintiffs are not required to provide contraceptive services as part of their health plans, regardless of whether their primary mission is the inculcation of religion or whether they predominantly serve adherents of their own beliefs. Plaintiffs have not made arguments to this Court with regard to the amended regulations. Moreover, the amendments remain ongoing, with the comment period on the NPRM still open.6
Thus, regulations in the ANPRM which Plaintiffs allege would harm them have now been supplanted by regulations in NPRM, which move significantly in the direction of Plaintiffs’ position, and thus the alleged will not occur unless some bizarre and unforeseeable occurrence led Defendants’ to revert to the previous regulations. A bizarre and unforeseeable occurrence is, by definition, not likely to occur. Plaintiffs have, therefore, failed to persuade the Court their case satisfies the first ripeness factor.
B. Second Factor: Hardship to the Parties if Judicial Relief is Denied As for the second ripeness factor, hardship to the parties if judicial relief is denied at this stage in the proceedings, the Court finds there is no significant hardship to the parties for denying judicial relief at this stage. In fact, it is probable that granting judicial relief at this stage would create more hardship to the parties. As the NPRM amendments are not yet final and there
6 Plaintiffs’ argument that, at the very least, their APA claims should be found ripe is unavailing. Their allegations that Defendants have not engaged in notice and comment rulemaking with regard to the regulations that Plaintiffs challenge is undercut by the fact that notice and comment rulemaking on those very regulations is occurring at this moment.
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has been insufficient time for parties to determine and brief how the NPRM changes will affect them. Any ruling at this juncture would simply add to the confusion and muddle the mushrooming ACA jurisprudence.
Although Plaintiffs are not currently having the regulations at issue enforced against them, they argue that the “imminence” of the regulations coming into effect has hampered their financial planning. It is unclear what the preparation injury could be given that there are no final regulations yet promulgated for which to prepare. Defendants repeatedly informed Plaintiffs and the Court that the ANPRM regulations were not final and would never be enforced against Plaintiffs. If Plaintiffs chose to prepare for an eventuality that always appeared unlikely to ever occur, that is a hardship they inflicted upon themselves. Now, the NPRM amendments have made it even less likely Plaintiffs will ever be affected by the mandate to provide the essential women’s reproductive health services at issue here.
Plaintiff Franciscan also alleges current hardship in that it stopped offering health insurance to its students for fear of one day having to provide coverage for contraception. It is gravely unfortunate that Franciscan’s students have lost the opportunity to receive health insurance coverage from the University. To the extent Franciscan claims its decision to discontinue providing student insurance is a hardship to itself, however, the hardship is selfinflicted. A plaintiff cannot injure itself while fleeing a phantom specter spawned by the plaintiff’s own unsubstantiated fears and then claim the defendant caused the injury. This is particularly the case when, as here, Defendants explicitly stated, under penalty of contempt, they would never the harm Plaintiffs feared.
Plaintiffs have, therefore, failed to persuade the Court that their alleged hardships favor adjudication of their claims at this juncture.
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C. Third Factor: Whether the Factual Record is Sufficiently Developed The third ripeness factor, whether the factual record is sufficiently developed to produce a fair adjudication of the merits, also indicates this dispute is not ripe for adjudication. Plaintiffs challenged particular ANPRM regulations that are no longer proposed by Defendants. Any decision on Defendants’ former proposal would, at this point, be nothing more than an impermissible advisory opinion. The parties have not yet had the opportunity to study potential ramifications of Defendants’ amended regulations in the NPRM. There is no factual record whatsoever that would allow this Court to adjudicate a challenge to the amended regulations. Plaintiffs have also failed to persuade the Court that the factual record is sufficiently developed to produce a fair adjudication of the merits at this time. In summary, the Court finds each of the Sixth Circuits three “key factors” to determine ripeness strongly disfavor finding this case ripe for adjudication. The “safe harbor” provision, which protects Plaintiffs from enforcement presently, coupled with ongoing process to amend the ACA regulations to address Plaintiffs’ concerns, which is substantiated by the recently published NPRM, makes the harm Plaintiffs allege unlikely to ever occur. Thus, since the dispute is not ripe, this Court lacks subject matter jurisdiction to adjudicate the merits of Plaintiffs’ claims and the Court must dismiss Plaintiffs’ entire claim.
V. CONCLUSION For the foregoing reasons Defendants’ Motion to Dismiss for Lack of Jurisdiction (Doc. 23) is, hereby, GRANTED. As a result of this Order, all other pending motions in this case
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(Doc. 25, Doc. 38, Doc. 39, Doc. 40, and Doc. 47) are MOOT and, accordingly, DISMISSED.

This case is DISMISSED.

IT IS SO ORDERED.
ALGENON UNITE

s/ Algenon L. Marbley L. MARBLEY
D STATES DISTRICT JUDGE

DATED: March 22, 2013

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

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

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

f.

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

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

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

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

a nd

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

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

5 of I0

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

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

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

of!O

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

EXHIBIT A

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

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

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

EXHIBITB

E XHIBIT B

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

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

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

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

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

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

2

 
 Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 1 of 10
CLOSED,JURY
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:12−cv−00440−ALM−MRA

Franciscan University of Steubenville et al v. Sebelius et al Assigned to: Judge Algenon L. Marbley Referred to: Magistrate Judge Mark R. Abel Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 05/21/2012 Date Terminated: 03/22/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Franciscan University of Steubenville

represented by Matthew A Kairis Jones Day P.O. Box 165017 Columbus, OH 43216−5017 (614) 469−3939 Fax: (614) 461−4198 Email: makairis@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam Edward Scurti University of Stuebenville 1235 University Blvd Steubenville, OH 43952 740−283−6526 Email: ascurti@franciscan.edu ATTORNEY TO BE NOTICED

Brandy Hutton Ranjan 325 John H. McConnell Blvd. Columbus, OH 43215 6146530759 Fax: 6144614198 Email: branjan@jonesday.com ATTORNEY TO BE NOTICED

Eric Earl Murphy Jones Day 325 John H. McConnell Blvd Suite 600 Columbus, OH 43215 614−281−3925 Fax: 614−461−4198 Email: eemurphy@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ira M Karoll Jones Day 500 Grant Street Suite 4500 Pittsburgh, PA 15219−2514 412−394−7976 Fax: 412−394−7959 Email: ikaroll@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

John D Goetz Jones Day 500 Grant Street

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 2 of 10

Suite 4500 Pittsburgh, PA 15219−2514 412−391−3939 Fax: 412−394−7959 Email: jdgoetz@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Leon F DeJulius, Jr. Jones Day One Mellon Center, 31st Floor 500 Grant Street Pittsburgh, PA 15219 412−391−3939 Fax: 412−394−7959 Email: lfdejulius@jonesday.com PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Michael Pohl Jones Day One Mellon Center, 31st Floor 500 Grant Street Pittsburgh, PA 15219 412−391−3939 Fax: 412−394−7959 Email: pmpohl@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff Michigan Catholic Conference

represented by Matthew A Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy Hutton Ranjan (See above for address) ATTORNEY TO BE NOTICED

Eric Earl Murphy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ira M Karoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John D Goetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leon F DeJulius, Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

Paul VanDusen

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 3 of 10

Bodman PLC 201 West Big Beaver Suite 500 Troy, MI 48084 248−743−6076 Fax: 248−743−6002 Email: tvandusen@bodmanlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca D'Arcy O'Reilly Bodman PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 313−259−7777 Fax: 313−393−7579 Email: roreilly@bodmanlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised

represented by Matthew A Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy Hutton Ranjan (See above for address) ATTORNEY TO BE NOTICED

Eric Earl Murphy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ira M Karoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

John D Goetz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Leon F DeJulius, Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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

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

Rebecca D'Arcy O'Reilly (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 4 of 10

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant Hilda Solis in her official capacity as Secretary of the U.S. Department of Labor
Defendant Timothy Geithner in his official capacity Secretary of the U.S. Department of Treasury
Defendant US Department of Health and Human Services
Defendant US Department of Labor
Defendant US Department of Treasury
Amicus American Center for Law and Justice ACLJ

represented by Michelle R. Bennett U.S. Department of Justice 20 Massachusetts Ave., NW Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Jason Howard 4130 Linden Ave Suite 304 Dayton, OH 45432−3015 937−262−7600 Fax: 937−262−7601 Email: rjhoward@howardlawoffices.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey R Surtees American Center for Law &Justice 6375 New Hope Road New Hope, KY 40052 502−549−7020 Fax: 502−549−5252

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 5 of 10
Email: gsurtees@aclj.org PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 05/21/2012 05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012
05/21/2012
05/22/2012 05/30/2012
05/30/2012
05/30/2012
05/30/2012
05/30/2012
05/30/2012

# Docket Text
1 Civil Cover Sheet. (sr1) (Entered: 05/21/2012)
2 COMPLAINT with Jury Demand filed by Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised, Franciscan University of Steubenville, Michigan Catholic Conference against Timothy F Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (sr1) (Entered: 05/21/2012)
Filing fee: (Complaint) $ 350, receipt number COL022398 (sr1) (Entered: 05/21/2012)
3 Corporate Disclosure Statement filed by Plaintiff Michigan Catholic Conference. (sr1) (Entered: 05/21/2012)
4 Corporate Disclosure Statement filed by Plaintiff Franciscan University of Steubenville. (sr1) (Entered: 05/21/2012)
5 NOTICE of Appearance by Matthew A Kairis for Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (sr1) (Entered: 05/21/2012)
6 Summons Issued as to Timothy F Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury, U.S. Attorney and U.S. Attorney General. (sr1) (Entered: 05/21/2012)
7 Notice by Clerk of Southern District of Ohio of Pro Hac Vice Rules for Adam E. Scurti, Esq. and (Attachments: # 1 Ira M. Karoll, Esq., # 2 John D. Goetz, Esq., # 3 Leon F. DeJulius, Jr., # 4 Paul M. Pohl, Esq.) (sr1) (Entered: 05/22/2012)
8 MOTION for Leave to Appear Pro Hac Vice of Paul Michael Pohl (Filing fee $ 200) by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 05/30/2012)
9 MOTION for Leave to Appear Pro Hac Vice of John D. Goetz (Filing fee $ 200) by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 05/30/2012)
10 MOTION for Leave to Appear Pro Hac Vice of Leon F. DeJulius, Jr. (Filing fee $ 200) by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 05/30/2012)
11 MOTION for Leave to Appear Pro Hac Vice of Ira M. Karoll (Filing fee $ 200) by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 05/30/2012)
12 NOTICE of Appearance by Eric Earl Murphy for Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised (Murphy, Eric) (Entered: 05/30/2012)
13 NOTICE of Appearance by Brandy Hutton Ranjan for Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised (Ranjan, Brandy) (Entered: 05/30/2012)

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 6 of 10

05/30/2012 06/01/2012 06/01/2012 06/11/2012
06/12/2012 06/12/2012 06/13/2012 06/14/2012 07/18/2012
07/25/2012 07/27/2012 08/06/2012 08/17/2012 08/17/2012 08/23/2012

Filing fee: $ 800, receipt number 200COL022518 (PHV for Pohl, Goetz, DeJulius &Karoll) (jr1) (Entered: 05/30/2012)
14 ORDER granting 8 Plaintiff's Motion for Leave to Appear Pro Hac Vice of Paul M. Pohl. Signed by Magistrate Judge Mark R. Abel on 6/1/2012. (er1) (Entered: 06/01/2012)
15 ORDER granting 9 , 10 &11 Motions for Leave to Appear Pro Hac Vice of John D. Goetz, Leon F. DeJulius, Jr. and Ira M. Karoll. Signed by Magistrate Judge Mark R. Abel on 6/1/2012. (er1) (Entered: 06/01/2012)
16 AFFIDAVIT of Service for Complaint and Demand for Jury Trial served on Sebelius, Solis, Geithner, Dep't of Health &Human Services, Dep't of Labor, Dep't of Treasury on May 21, 2001, filed by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Exhibit Exs. A−H − Certified Mail Return Receipts) (Kairis, Matthew) (Entered: 06/11/2012)
17 MOTION for Leave to Appear Pro Hac Vice of Thomas Paul VanDusen (Filing fee $ 200) by Plaintiffs Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 06/12/2012)
18 MOTION for Leave to Appear Pro Hac Vice of Rebecca D'Arcy O'Reilly (Filing fee $ 200) by Plaintiffs Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 06/12/2012)
Filing fee: $ 400, receipt number 200COL022723 (PHV for VanDusen &O'Reilly) (er1) (Entered: 06/13/2012)
19 ORDER granting 17 Motion for Leave to Appear Pro Hac Vice of Thomas P VanDusen; granting 18 Motion for Leave to Appear Pro Hac Vice of Rebecca D'Arcy O'Reilly. Signed by Magistrate Judge Mark R. Abel on 6/14/12. (sh1) (Entered: 06/14/2012)
20 Joint MOTION for Extension of Time New date requested 8/6/2012. by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Attachments: # 1 Text of Proposed Order) (Bennett, Michelle) (Entered: 07/18/2012)
21 ORDER granting 20 Motion for Extension of Time; Dft's motion to dismiss due by 8/6/12; any opposition due 8/27/12; reply in suuport due no later than 28 days from date of service of memo contra. Signed by Magistrate Judge Mark R. Abel on 7/25/12. (sh1) Modified text on 7/26/2012 (er1). (Entered: 07/25/2012)
22 NOTICE of Hearing: Preliminary Pretrial Conference set for 8/23/2012 @ 3:00 PM before Magistrate Judge Mark R. Abel. Conf of the parties due 8/2/12; Rule 26f report of the parties due 8/16/12. (sh1) (Entered: 07/27/2012)
23 MOTION to Dismiss for Lack of Jurisdiction by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor. Responses due by 8/30/2012 (Attachments: # 1 Memorandum in Support) (Bennett, Michelle) (Entered: 08/06/2012)
24 RULE 26(f) REPORT by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 08/17/2012)
25 MOTION to Stay Discovery by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 08/17/2012)
26 MOTION for Leave to File Amicus Curie Brief by Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/23/2012)

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 7 of 10

08/23/2012 08/23/2012 08/23/2012 08/24/2012 08/27/2012
09/07/2012
09/13/2012 09/14/2012
09/21/2012 09/24/2012
10/04/2012 10/08/2012 10/12/2012
10/12/2012
10/12/2012

27 Corporate Disclosure Statement by Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/23/2012)
28 Amicus Curiae APPEARANCE entered by Robert Jason Howard Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/23/2012)
29 MOTION for Leave to Appear Pro Hac Vice of GEOFFREY R. SURTEES (Filing fee $ 200, receipt number 0648−3771598) by Amicus American Center for Law and Justice. (Howard, Robert) (Entered: 08/23/2012)
30 ORDER granting 29 Motion for Leave to Appear Pro Hac Vice of Geoffrey R. Surtees for American Center for Law &Justice. Signed by Magistrate Judge Mark R. Abel on 8/24/12. (sh1) (Entered: 08/24/2012)
31 RESPONSE in Opposition re 23 MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Kairis, Matthew) (Entered: 08/27/2012)
32 RESPONSE in Opposition re 25 MOTION to Stay Discovery Pending Resolution of Motion to Dismiss filed by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 09/07/2012)
Minute Entry for proceedings held before Magistrate Judge Mark R. Abel: Initial Pretrial Conference held on 9/13/2012. (Rubey, Rachel) (Entered: 09/14/2012)
33 PRELIMINARY PRETRIAL ORDER: With in 14 days of any decision denying Dft's August 6, 2012 motion to dismiss, counsel directed to call the Magistrate office to sched a conf tp establish a case management order; it doesn't appear this case is amenable to settlement. Signed by Magistrate Judge Mark R. Abel on 9/14/12. (sh1) (Entered: 09/14/2012)
34 REPLY to Response to Motion re 25 MOTION to Stay Discovery filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 09/21/2012)
35 REPLY to 31 Response to 23 MOTION to Dismiss for Lack of Jurisdiction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) Modified text and added link on 9/26/2012 (er1). (Entered: 09/24/2012)
36 ORDER granting 26 Motion for Leave to File. Signed by Magistrate Judge Mark R. Abel on 10/4/12. (sh1) (Entered: 10/04/2012)
37 BRIEF re 36 Order on Motion for Leave to File by Amicus American Center for Law and Justice. (Surtees, Geoffrey) (Entered: 10/08/2012)
38 MOTION for Preliminary Injunction and Permanent Injunction by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Text of Proposed Order) (Kairis, Matthew) (Entered: 10/12/2012)
39 MOTION Rule 65(a)(2) Consolidation by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Text of Proposed Order) (Kairis, Matthew) (Entered: 10/12/2012)
40 MOTION Scheduling Order or In−Person or Telephonic Status or Trial Setting Conference re 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 8 of 10

10/12/2012
10/15/2012
10/16/2012 11/02/2012 11/13/2012 11/14/2012 11/14/2012 11/14/2012 11/16/2012 11/23/2012 11/27/2012

Revised. (Attachments: # 1 Text of Proposed Order) (Kairis, Matthew) (Entered: 10/12/2012)
41 BRIEF re 40 MOTION Scheduling Order or In−Person or Telephonic Status or Trial Setting Conference re 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction , 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Exhibit A − Transcript of Hearing in Trautman v. Sebelius) (Kairis, Matthew) (Entered: 10/12/2012)
42 RESPONSE in Opposition re 40 MOTION Scheduling Order or In−Person or Telephonic Status or Trial Setting Conference re 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services. (Bennett, Michelle) (Entered: 10/15/2012)
43 ORDER OF RECUSAL. Signed by Judge George C Smith on 10−16−12. (ga) (Entered: 10/16/2012)
44 RESPONSE in Opposition re 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 11/02/2012)
45 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Notice of Supplemental Authority) (Attachments: # 1 Exhibit A − Legatus Opinion) (Bennett, Michelle) (Entered: 11/13/2012)
46 ORDER OF RECUSAL. Judge Edmund A Sargus recused. Case reassigned to Judge Algenon L. Marbley for all further proceedings. Signed by Judge Edmund A Sargus on 11/14/2012. (dh1) (Entered: 11/14/2012)
47 MOTION for oral argument re 23 MOTION to Dismiss for Lack of Jurisdiction by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 11/14/2012)
48 RESPONSE to Motion re 47 MOTION for oral argument re 23 MOTION to Dismiss for Lack of Jurisdiction filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 11/14/2012)
49 REPLY to Response to Motion re 39 MOTION Rule 65(a)(2) Consolidation , 38 MOTION for Preliminary Injunction and Permanent Injunction filed by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 11/16/2012)
50 Response re 45 Notice (Other), by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Kairis, Matthew) (Entered: 11/23/2012)
51 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit − Catholic Diocese of Nashville Opinion) (Bennett, Michelle) (Entered: 11/27/2012)

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 9 of 10

11/30/2012 12/06/2012 12/07/2012 12/11/2012 12/21/2012 12/21/2012 01/04/2013 01/10/2013 01/23/2013
01/30/2013 01/31/2013

52 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Zubik Opinion) (Bennett, Michelle) (Entered: 11/30/2012)
53 Response re 51 Notice (Other), 52 Notice (Other), of Supplemental Authority by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised. (Attachments: # 1 Exhibit A − Excerpts of Transcript from Catholic Diocese of Nashville v. Sebelius) (Kairis, Matthew) (Entered: 12/06/2012)
54 NOTICE by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised of Supplemental Authority (Attachments: # 1 Exhibit A − Roman Catholic Archdiocese of New York v. Sebelius (Dec. 5, 2012)) (Kairis, Matthew) (Entered: 12/07/2012)
55 Response re 54 Notice (Other), by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 12/11/2012)
56 NOTICE by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised of Supplemental Authority (Attachments: # 1 Exhibit A − Wheaton College v. Sebelius Order) (Kairis, Matthew) (Entered: 12/21/2012)
57 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction , 56 Notice (Other), (Attachments: # 1 Catholic Diocese of Biloxi Decision) (Bennett, Michelle) (Entered: 12/21/2012)
58 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Fifth Notice of Supplemental Authority) (Attachments: # 1 University of Notre Dame Decision) (Bennett, Michelle) (Entered: 01/04/2013)
59 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Sixth Notice of Supplemental Authority) (Attachments: # 1 Catholic Diocese of Peoria Decision, # 2 Colorado Christian University Decision) (Bennett, Michelle) (Entered: 01/10/2013)
60 NOTICE by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised re 58 Notice (Other), 57 Notice (Other), 59 Notice (Other), of Supplemental Authority (Attachments: # 1 Exhibit A − Order, Korte v. Sebelius, # 2 Exhibit B − Opinion and Order, Monaghan v. Sebelius, # 3 Exhibit C − Order, Amer. Pulverizer Co. v. Sebelius) (Kairis, Matthew) (Entered: 01/23/2013)
61 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 60 Notice (Other), 23 MOTION to Dismiss for Lack of Jurisdiction (Defs.' Seventh Notice of Supp. Auth. and Resp. to Pls.' Third Notice of Supp. Auth.) (Bennett, Michelle) (Entered: 01/30/2013)
62 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Eighth Notice of Supplemental Authority) (Attachments: # 1 Archdiocese of St. Louis Decision) (Bennett, Michelle) (Entered: 01/31/2013)

Case: 2:12-cv-440 As of: 05/10/2013 12:46 PM EDT 10 of 10

02/05/2013 02/08/2013 02/08/2013 02/19/2013 03/06/2013 03/22/2013 03/22/2013

63 NOTICE by Plaintiffs Franciscan University of Steubenville, Michigan Catholic Conference, Michigan Catholic Conference Amended and Restated Group Health Benefit Plan For Employees Revised re 31 Response in Opposition to Motion, of Supplemental Authority (Attachments: # 1 Exhibit A − Roman Catholic Diocese of Fort Worth v. Sebelius) (Kairis, Matthew) (Entered: 02/05/2013)
64 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Ninth Notice of Supplemental Authority) (Bennett, Michelle) (Entered: 02/08/2013)
65 Response re 63 Notice (Other), by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Bennett, Michelle) (Entered: 02/08/2013)
66 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Tenth Notice of Supplemental Authority) (Attachments: # 1 Exhibit 1 − Bishop Conlon Decision) (Bennett, Michelle) (Entered: 02/19/2013)
67 NOTICE by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 23 MOTION to Dismiss for Lack of Jurisdiction (Eleventh Notice of Supplemental Authority) (Bennett, Michelle) (Entered: 03/06/2013)
68 ORDER granting 23 Motion to Dismiss for Lack of Jurisdiction; finding as moot 25 Motion to Stay; finding as moot 38 Motion for Preliminary Injunction; finding as moot 39 Motion ; finding as moot 40 Motion ; finding as moot 47 Motion. Signed by Judge Algenon L. Marbley on 3/22/2013. (cw) (Entered: 03/22/2013)
69 CLERK'S JUDGMENT entered pursuant to Opinion and Order signed by Judge Algenon L. Marbley on 3/22/2013. (cw) (Entered: 03/22/2013)