Case 1:11-cv-03350-CMA-BNB Document 1 Filed 12/22/11 USDC Colorado Page 1 of 25
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. _______________________ COLORADO CHRISTIAN UNIVERSITY,
Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
COMPLAINT
Comes now Plaintiff Colorado Christian University, by and through its attorneys, and states as follows:
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NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” (colloquially referred to as “Obamacare”) that force thousands of religious organizations to violate their deepest religious beliefs. 2. Plaintiff Colorado Christian University (“The University” or “Colorado Christian”) is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Colorado Christian’s religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting abortion. Colorado Christian is among the many American religious organizations that hold these beliefs. 3. With full knowledge of these beliefs, the government issued an administrative rule (“the Mandate”) that runs roughshod over Colorado Christian’s religious beliefs, and the beliefs of millions of other Americans by forcing them to pay for abortifacient drugs and related education and counseling. 4. The government’s Mandate unconstitutionally coerces Colorado Christian to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Colorado Christian to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. 5. The government’s refusal to accommodate conscience is also highly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the government has provided thousands of exemptions from the
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Affordable Care Act for other groups, including large corporations such as McDonald’s, often for reasons of commercial convenience. And the government allows a variety of other reasons— from the age of the plan to the size of the employer—to qualify a plan for an exemption. But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms.
6. The Defendants’ actions therefore violate Colorado Christian’s right to freedom of religion, as secured by the First Amendment of the United States Constitution and the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also violate Colorado Christian’s right to the freedom of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
9. Had Colorado Christian’s religious beliefs been obscure or unknown, the government’s actions might have been an accident. But because the government acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be interpreted as nothing other than a deliberate attack by the government on the religious beliefs of Colorado Christian and millions of other Americans. The University seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to
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render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, a nd 42 U .S.C. § 2000bb-1.
11. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and the Plaintiff is located in this district.
IDENTIFICATION OF PARTIES 12. Plaintiff Colorado Christian is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Established in 1914, Colorado Christian is committed to offering a complete education that develops students spiritually, intellectually, and professionally. 13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 16. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only. 17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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18. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. The University’s Religious Beliefs and Practices Related to Insurance for Abortion.
20. Colorado Christian is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Established in 1914, Colorado Christian is committed to offering a complete education that develops students intellectually, professionally, and spiritually.
21. Faith is central to the educational mission of Colorado Christian. Colorado Christian describes itself as a “Christ-centered community” and commits, in its mission, to “exemplary academics, spiritual formation, and engagement with the world.”
22. Consistent with its mission, Colorado Christian works to manifest its Christian faith in all aspects of its administration. All Colorado Christian employees profess the same Statement of Faith, which establishes the essential framework within which members of the University both unite in shared beliefs and explore differences.
23. Colorado Christian holds religious beliefs that include traditional Christian teachings on the sanctity of life. Colorado Christian believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the
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moment of conception. Colorado Christian therefore believes and teaches that abortion ends a human life and, with rare exceptions, is a sin.
24. One of Colorado Christian’s listed strategic objectives is to “[i]mpact our culture in support of traditional family values, sanctity of life, compassion for the poor, Biblical view of human nature, limited government, personal freedom, free markets, natural law, original intent of the Constitution and Western civilization.”
25. Colorado Christian has more than 4,200 graduate and undergraduate students. 26. Colorado Christian has approximately 280 full-time and 330 part-time employees. 27. As part of its commitment to Christian education, Colorado Christian also promotes the well-being and health of its students and employees, spiritual and physical. This includes provision of generous health services and health insurance for its employees. 28. As part of its religious commitment, Colorado Christian has ensured that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith. In particular, its insurance plans do not cover abortion. When Colorado Christian was earlier informed that its insurance carrier had unilaterally included coverage for abortion in its insurance plan, it immediately required the insurance carrier to terminate that coverage. 29. Colorado Christian cannot provide health care insurance covering abortion or related education and counseling without violating its deeply held religious beliefs. 30. The plan year for Colorado Christian’s insurance plan begins on July 1 of each year. II. The Affordable Care Act 31. In March 2010, C ongress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and
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Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010 ), collectively known as the “Affordable Care Act.”
32. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
33. The Act does not apply equally to all plans. 34. The Act does not apply equally to all insurers. 35. The Act does not apply equally to all individuals. 36. The Act applies differently to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 37. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. 38. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria). 39. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. 40. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely. 41. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of
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small employers with between 50 and 100 employees may do likewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
42. The Act is not generally applicable because it provides for numerous exemptions from its rules.
43. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
44. The Act creates a system of individualized exemptions. 45. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers (“HHS waivers”). 46. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 47. HHS decides whether to grant waivers based on i ndividualized waiver requests from particular employers and other health insurance plan issuers. 48. Upon information and belief, thousands of HHS waivers have been granted. 49. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 50. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not. 51. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements.
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52. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.
53. Defendants’ waiver practices create a system of individualized exemptions. III.The Preventive Care Mandate
54. One of the provisions of the Affordable Care Act mandated that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directed the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
55. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 F ed. Reg. 41726 (2010).1 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
56. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.
1 For ease of reading, references to “HHS” in this Complaint are to all three Departments.
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57. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines.
58. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.
59. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
60. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
61. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
62. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which
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requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov/womensguidelines.
63. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
64. The Mandate went into effect immediately as an “interim final rule.” 65. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 66. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 67. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online. 68. Upon information and belief, over 100,000 c omments were submitted against the Mandate. 69. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against.
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70. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like Colorado Christian, even though those rights were repeatedly raised in the public comments.
71. The Mandate requires that the University provide coverage for abortion and related education and counseling against its conscience in a manner that is contrary to law.
72. The Mandate constitutes government-imposed pressure and coercion on Colorado Christian to change or violate its religious beliefs.
73. The Mandate exposes Colorado Christian to substantial fines for refusal to change or violate its religious beliefs.
74. The Mandate imposes a burden on Colorado Christian’s employee and student recruitment efforts by creating uncertainty as to whether the University will be able to offer health insurance beyond 2012.
75. The Mandate places Colorado Christian at a competitive disadvantage in its efforts to recruit and retain employees and students.
76. The Mandate forces the University to provide coverage for Plan B, ella, and other abortifacient drugs in violation of the University’s religious beliefs.
77. The University has a sincere religious objection to providing coverage for Plan B and ella since it believes those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of the embryo.
78. The University considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
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79. The University believes that Plan B and ella can cause the death of the embryo. 80. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 81. The drug ella can prevent the implantation of a human embryo in the wall of the uterus. 82. Plan B and ella can cause the death of the embryo. 83. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 84. The use of artificial means to cause the death of a hum an embryo constitutes an “abortion” as that term is used in federal law. 85. The Mandate forces the University to provide emergency contraception, including Plan B and ella free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 86. The Mandate forces the University to fund education and counseling concerning abortion that directly conflicts with the University’s religious beliefs and teachings. 87. Providing this counseling and education directly undermines the express messages and speech of the University. 88. The Mandate forces the University to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee and student health insurance coverage. 89. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012. 90. The University has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. The University
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anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect. IV. The Narrow and Discretionary Religious Exemption
91. The Mandate indicates that that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C .F.R. § 147.130(a)(iv)(A).
92. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the 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)(iv)(B).
93. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
94. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
95. Most religious organizations, including the University, have more than one purpose. 96. For most religious organizations, including the University, the inculcation of religious values is only one purpose among others. 97. The University reasonably expects that it will be subject to the Mandate despite the existence of the exemption.
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98. The University has no conscientious objection to providing coverage for women’s healthcare services such as mammograms.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 99. The University incorporates by reference all preceding paragraphs. 100. The University’s sincerely held religious beliefs prohibit it from providing coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 101. The Mandate creates government-imposed coercive pressure on t he University to change or violate its religious beliefs. 102. The Mandate chills the University’s religious exercise. 103. The Mandate exposes the University to substantial fines for its religious exercise. 104. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 105. The Mandate imposes a substantial burden on the University’s religious exercise. 106. The Mandate furthers no compelling governmental interest. 107. The Mandate is not narrowly tailored to any compelling governmental interest. 108. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 109. The Mandate and Defendants’ threatened enforcement of the Mandate violate the University’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
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110. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 111. The University incorporates by reference all preceding paragraphs. 112. The University’s sincerely held religious beliefs prohibit it from providing coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 113. Neither the Affordable Care Act nor the Mandate is neutral. 114. Neither the Affordable Care Act nor the Mandate is generally applicable. 115. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 116. The Mandate furthers no compelling governmental interest. 117. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 118. The Mandate creates government-imposed coercive pressure on t he University to change or violate its religious beliefs. 119. The Mandate chills the University’s religious exercise. 120. The Mandate exposes the University to substantial fines for its religious exercise. 121. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 122. The Mandate imposes a substantial burden on the University’s religious exercise.
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123. The Mandate is not narrowly tailored to any compelling governmental interest. 124. The Mandate and Defendants’ threatened enforcement of the Mandate violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 125. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 126. The University incorporates by reference all preceding paragraphs. 127. The University’s sincerely held religious beliefs prohibit it from providing coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 128. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impos sible for the University to comply with its religious beliefs. 129. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of The University and others. 130. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
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131. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 132. The University incorporates by reference all preceding paragraphs. 133. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 134. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 135. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 136. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 137. The University incorporates by reference all preceding paragraphs. 138. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the University. 139. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
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140. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate the University’s rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution.
141. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 142. The University incorporates by reference all preceding paragraphs. 143. The University teaches that abortion violates its religious beliefs. 144. The Mandate would compel the University to subsidize activities that the University teaches are violations of the University’s religious beliefs. 145. The Mandate would compel the University to provide education and counseling related to abortion. 146. Defendants’ actions thus violate the University’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 147. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 148. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 149. The University incorporates by reference all preceding paragraphs. 150. The University teaches that abortion violates its religious beliefs. 151. The Mandate would compel the University to subsidize activities that the University teaches are violations of the University’s religious beliefs. 152. The Mandate would compel the University to provide education and counseling related to abortion. 153. Defendants’ actions thus violate the University’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 154. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
155. The University incorporates by reference all preceding paragraphs. 156. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have their First Amendment interests accommodated.
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157. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as the University “primarily” serves and employs members of the same faith as the organization.
158. Defendants’ actions therefore violate the University’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
159. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act
Lack of Good Cause 160. The University incorporates by reference all preceding paragraphs. 161. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute ‘good cause.’ 162. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 163. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the University is entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 164. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 165. The University incorporates by reference all preceding paragraphs. 166. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the University and similar organizations. 167. Defendants’ explanation for its decision not to exempt the University and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 168. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U .S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 169. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 170. The University incorporates by reference all preceding paragraphs. 171. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008).
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172. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
173. The Mandate requires issuers, including the University, to provide coverage of all Federal Drug Administration-approved contraceptives.
174. Some FDA-approved contraceptives cause abortions. 175. As set forth above, the Mandate violates RFRA and the First Amendment. 176. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 177. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
178. The University incorporates by reference all preceding paragraphs. 179. The Mandate is contrary to the provisions of the Affordable Care Act. 180. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”— i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be
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construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
181. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
182. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
183. The Mandate requires issuers, including the University, to provide coverage of all Federal Drug Administration-approved contraceptives.
184. Some FDA-approved contraceptives cause abortions. 185. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 186. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, the University requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
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d. Issue an order prohibiting Defendants from enforcing the Mandate against the University and other religious organizations that object to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award the University the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just. Respectfully submitted this 21st day of December, 2011.
/s/ Eric Rassbach Eric Rassbach THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org Counsel for Plaintiff Colorado Christian University 8787 W. Alameda Ave. Lakewood, Colorado 80226
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 Case 1:11-cv-03350-CMA-BNB Document 33 Filed 04/30/12 USDC Colorado Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-03350-CMA-BNB COLORADO CHRISTIAN UNIVERSITY,
Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendant.
ORDER DENYING AS UNTIMELY DEFENDANTS’ OBJECTIONS TO MAGISTRATE JUDGE’S RULING
This matter is before the Court on “Defendants’ Objections to Magistrate Judge’s February 29, 2012 Order Denying a Stay of Discovery.” (Doc. # 25.) For the reasons that follow, such objections are untimely, and the Court will not consider them.
I. BACKGROUND On February 6, 2012, Defendants filed a “Motion to Postpone Rule 16(b) Scheduling Conference and Related Deadlines” for a period of 60 days. (Doc. # 16.) Defendants stated that the motion should be granted “because discovery, if any, should not commence until the Court has had time to rule on Defendants’ forthcoming motion

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to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6).” (Id. at 1.) They argued that “[c]ourts have broad discretion to stay proceedings, including discovery, when a pending dispositive motion may resolve some or all claims” and that a “stay of discovery pending the determination of a dispositive motion is an eminently logical means to prevent wasting the time and effort of all concerned . . . .” (Id. at 3 (quotation marks and citations omitted).)
Plaintiff responded on February 7, 2012. (Doc. # 18.) It asserted that “postponing discovery would serve no meaningful purpose” and analyzed five factors that are often addressed when “considering a motion to stay or postpone discovery . . . .” (Id. at 1, 3.) Plaintiff argued that “[t]he interests of the parties and the Court weigh against delaying discovery” and cited to SOLIDFX, LLC v. Jeppesen Sanderson, Inc., No. 11-cv-01468, 2011 WL 4018207, at *2 (D. Colo. Sept. 8, 2011), for the proposition that “stays of discovery pending rulings on motions to dismiss generally are disfavored in this district.” (Doc. # 18 at 3 (emphasis deleted).)
Defendants replied that same day asserting, in part, that “[g]ranting defendants’ request to postpone the scheduling conference and related deadlines for 60 days will have the added benefit of allowing the Court to consider the substance of the motion to dismiss, and plaintiff’s response to it, before deciding whether to postpone discovery further, i.e., until after the Court rules on defendants’ motion to dismiss.” (Doc. # 19 at 3 n.1.)
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On February 9, 2012, Judge Boland denied Defendants’ motion. (Doc. # 20.) After citing the factors Plaintiff raised (see Doc. # 18 at 3), Judge Boland stated: “Considering the factors leads me to conclude that a stay of discovery in this case is not warranted.” (Doc. # 20 at 2.) He also relied on the same principle cited by Plaintiff in its response: “stays of discovery pending rulings on motions to dismiss generally are disfavored in this district.” (Id. at 3 (quoting SOLIDFX, 2011 WL 4018207, at *2).)
On February 22, 2012, the parties submitted a “Joint Proposed Scheduling Order.” (Doc. # 21.) In their statement of jurisdiction, Defendants explain that they “intend to file a motion to dismiss for lack of jurisdiction . . . on February 27, 2012. Defendants request that the Court delay the commencement of discovery until after this motion is resolved.” (Id. at 4.)
On February 29, 2012, after Defendants had filed their “Motion to Dismiss for Lack of Jurisdiction” (Doc. # 22), Judge Boland held a scheduling conference. (See Doc. # 23.) At the beginning of the proceeding, he stated:
I’ve been over, of course, the motion to reschedule the scheduling conference, and denied it, and I thought that indicated my intention not to stay the case either, so I am going to go ahead and set a schedule today, and I won’t stay the case for the reasons stated in my earlier order denying the motion to extend the scheduling conference. (Doc. # 25-1 at 2-3.) In the “Scheduling Order” issued that day, “Defendants request that the Court delay the commencement of discovery until after this motion is resolved” is struck-through. (Doc. # 24 at 4.)
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II. DISCUSSION A. NO FEBRUARY 29, 2012 DISCOVERY ORDER
On March 13, 2012, Defendants filed objections to “Magistrate Judge Boyd N. Boland’s February 29, 2012 order denying defendants’ request for a stay of discovery . . . .” (Doc. # 25 at 1.) However, no such order occurred on February 29, 2012, as indicated in the block-quote above. At the hearing, Judge Boland explained to Defendants that he would not stay the case “for the reasons stated” previously in his February 9, 2012 order “denying the motion to extend the scheduling conference.” (Doc. # 25-1 at 3.) He further stated his understanding that the February 9, 2012 order “indicated [his] intention not to stay the case . . . .” (Id. at 2-3.) Thus, a straight-forward reading of the transcript indicates that Judge Boland was merely explaining to Defendants why he would refuse to alter the earlier ruling he had made not to stay the case. As Plaintiff argues, “[t]here is nothing to indicate that Magistrate Boland was issuing a new order to be appealed from.” (Doc. # 29 at 5.)
Such a reading of the February 9, 2012 transcript is bolstered by the context in which it occurred – i.e., a scheduling conference and not a motions hearing. As of February 29, 2012, only two motions had been filed: the February 6 “Motion to Postpone Rule 16(b) Scheduling Conference and Related Deadlines” (Doc. # 16); and the February 27, 2012 “Motion to Dismiss for Lack of Jurisdiction” (Doc. # 22). As Plaintiff points out, any statement by Defendants in the “Joint Proposed Scheduling Order” (e.g., Doc. # 21 at 4 (“Defendants request that the Court delay the commence-
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ment of discovery until after this motion is resolved.”)) was necessarily “not a proper ‘motion’ that Magistrate Boland could have ruled on.” (Doc. # 29 at 6.) Under Fed. R. Civ. P. 7(b)(1), “[a] request for a court order must be made by motion.” Though it should go without saying, a proposed scheduling order is not a motion. Further, seeking affirmative relief in a filing other than a motion is improper under the local rules. D.C.COLO.LCivR 7.1(C) (“A motion shall be made in a separate paper.”)
Accordingly, on February 29, 2012, Judge Boland did not issue an order denying defendants’ request for a stay of discovery. B. OBJECTIONS PERTAIN TO FEBRUARY 9, 2012 ORDER
Plaintiff argues, and the Court agrees, that Defendants’ objections actually pertain to Judge Boland’s February 9, 2012 order. As is evident from the quotations above, Defendants’ February 6, 2012 motion advocated for Judge Boland to exercise the “broad discretion” courts have to “stay proceedings, including discovery” when a dispositive motion is pending and that doing so would be “eminently logical.” Also, Plaintiff’s response argued directly “against delaying discovery,” which was obviously clear to Judge Boland when he stated that “a stay of discovery in this case is not warranted.” Given such direct and unambiguous language, the Court finds incredible Defendants’ assertion that Judge Boland’s refusal to stay the case “is not clear from the language of the February 9, 2012 order . . . .” (Doc. # 30 at 4 n.2.)
Because a plain reading of Defendants’ motion shows that they sought a stay of discovery, which Judge Boland denied on February 9, 2012, Defendants’ objections
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were due before February 24, 2012. See Fed. R. Civ. P. 72(a) (“A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to.”) Thus, Defendants’ March 13, 2012 objections were not timely filed, and Defendants may not assign as error a defect, if any, in the order.1
III. CONCLUSION For the foregoing reasons, the Court ORDERS that “Defendants’ Objections to Magistrate Judge’s February 29, 2012 Order Denying a Stay of Discovery” (Doc. # 25) is DENIED. DATED: April 30 , 2012
BY THE COURT:
_______________________________ CHRISTINE M. ARGUELLO United States District Judge
1 The Court is aware that its “power to revisit” the issue has not been stripped by Defendants’ failure to seek timely review of Judge Boland’s order, see Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006), but declines to exercise such power sua sponte.
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 Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 1 of 32
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:11-cv-03350-CMA-BNB
COLORADO CHRISTIAN UNIVERSITY, Plaintiff,
v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
FIRST AMENDED COMPLAINT (Jury Demand Endorsed Hereon)
Comes now Plaintiff Colorado Christian University, by and through its attorneys, and states as follows:
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NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” that force thousands of religious organizations to violate their deepest religious beliefs. 2. Plaintiff Colorado Christian University (“The University” or “Colorado Christian”) is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Colorado Christian’s religious beliefs forbid it from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion. Colorado Christian is among the many American religious organizations that hold these beliefs. 3. With full knowledge of these beliefs, the government issued an administrative rule (“the Mandate”) that runs roughshod over Colorado Christian’s religious beliefs, and the beliefs of millions of other Americans by forcing them to provide health insurance coverage for abortifacient drugs and related education and counseling. 4. The government’s Mandate unconstitutionally coerces Colorado Christian to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Colorado Christian to facilitate government-dictated speech that is incompatible with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. 5. The government’s refusal to accommodate conscience is also highly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the government has provided thousands of exemptions from the Affordable Care Act for other groups, including large corporations, often for reasons of
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commercial convenience. And the government allows a variety of other reasons—from the age of the plan to the size of the employer—to qualify a plan for an exemption. But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms.
6. Defendants’ actions therefore violate Colorado Christian’s right to freedom of religion, as secured by the First Amendment of the United States Constitution and the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also violate Colorado Christian’s right to the freedom of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
9. Had Colorado Christian’s religious beliefs been obscure or unknown, the government’s actions might have been an accident. But because the government acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be interpreted as nothing other than a deliberate attack by the government on the religious beliefs of Colorado Christian and millions of other Americans. The University seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to
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render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, a nd 42 U .S.C. § 2000bb-1.
11. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and the Plaintiff is located in this district.
IDENTIFICATION OF PARTIES 12. Plaintiff Colorado Christian is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Established in 1914, Colorado Christian is committed to offering a complete education that develops students spiritually, intellectually, and professionally. 13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 16. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only. 17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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18. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. The University’s Religious Beliefs and Practices Related to Insurance for Abortion.
20. Colorado Christian is a Christian liberal arts university located in Lakewood, Colorado, with classrooms in five other Colorado cities. Established in 1914, Colorado Christian is committed to offering a complete education that develops students intellectually, professionally, and spiritually.
21. Faith is central to the educational mission of Colorado Christian. Colorado Christian describes itself as a “Christ-centered community” and commits, in its mission, to “exemplary academics, spiritual formation, and engagement with the world.”
22. Consistent with its mission, Colorado Christian works to manifest its Christian faith in all aspects of its administration. All Colorado Christian employees profess the same Statement of Faith, which establishes the essential framework within which members of the University both unite in shared beliefs and explore differences.
23. Colorado Christian holds religious beliefs that include traditional Christian teachings on the sanctity of life. Colorado Christian believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the
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moment of conception. Colorado Christian therefore believes and teaches that abortion ends a human life and, with rare exceptions, is a sin.
24. One of Colorado Christian’s listed strategic objectives is to “[i]mpact our culture in support of traditional family values, sanctity of life, compassion for the poor, Biblical view of human nature, limited government, personal freedom, free markets, natural law, original intent of the Constitution and Western civilization.”
25. Colorado Christian has more than 4,200 graduate and undergraduate students. 26. Colorado Christian has approximately 280 full-time and 330 part-time employees. 27. As part of its commitment to Christian education, Colorado Christian also promotes the spiritual and physical well-being and health of its students and employees. This includes provision of generous health services and health insurance for its employees. 28. It is a violation of Colorado Christian’s religious beliefs to deliberately provide insurance coverage for drugs, devices, services, or procedures inconsistent with its faith, in particular abortion-inducing drugs, abortion procedures, and related services. 29. It is similarly a violation of Colorado Christian’s religious beliefs to deliberately provide health insurance that would facilitate access to abortion-inducing drugs, abortion procedures, and related services, even if those items were paid for by an insurer and not by Colorado Christian. 30. The University has no c onscientious objection to providing coverage for non-abortioninducing contraceptive drugs and devices. 31. When Colorado Christian learned in November 2011 that its insurance carrier had unilaterally included coverage for abortion in its insurance plan, its President, William L. Armstrong, immediately required the insurance carrier to terminate that coverage.
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32. President Armstrong understood that the insurance carrier revised Colorado Christian’s employee insurance plans to exclude all abortions, abortion-related services, and the abortioninducing drugs Plan B (levonorgestral) and Ella (uliprsital).
33. Colorado Christian recently obtained copies of the formularies that list the drugs covered by its revised employee insurance plans. The formularies list “Plan B” and/or “levonorgestral.”
34. Colorado Christian again contacted its insurer to inquire why Plan B had not been excluded from its employee insurance plans as requested. The insurer responded that it construes Colorado state law to require coverage of Plan B to the extent a prescription is required to purchase it.
35. Plan B is available as an over-the-counter drug for all persons seventeen years of age or older. A prescription for Plan B is required only for persons under the age of seventeen.
36. Colorado Christian’s insurer has expressly confirmed to Colorado Christian that its employee insurance plans only cover Plan B for persons under the age of seventeen and that abortions, abortion-related services, Ella, and Plan B for persons seventeen and older are excluded.
37. Colorado Christian believes it is unlikely that Plan B will actually be obtained through its employee insurance plans by any of its employees or their covered dependants.
38. On information and belief, as far back as Colorado Christian’s insurer has been able to determine, no abortions or abortion-related drugs or services have been obtained under Colorado Christian’s employee insurance plans.
39. Furthermore, none of Colorado Christian’s covered employees are under the age of seventeen.
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40. It would be difficult for a covered employee’s minor dependent under the age of seventeen to obtain a prescription for Plan B without the covered employee’s knowledge. Colorado Christian seeks to ensure that it hires only individuals who agree with its religious views regarding the sanctity of life. Thus, it is unlikely that a covered employee would facilitate a minor dependent’s obtaining Plan B. Even if a covered employee would facilitate such access, it could more easily do so by purchasing Plan B over-the-counter.
41. Although Colorado Christian thus believes it is unlikely that Plan B would be accessed under its employee insurance plan, the forced provision of access to Plan B for persons under the age of seventeen conflicts with the University’s deeply held religious beliefs. Accordingly, Colorado Christian is determining ways to revise its coverage or self-insure to avoid providing access to Plan B.
42. Colorado Christian’s student insurance plan expressly excludes all oral contraceptives and other contraception used for contraceptive purposes.
43. The plan year for Colorado Christian’s employee insurance plans begins on July 1 of each year.
44. The plan year for Colorado Christian’s student insurance plan begins in mid-August of each year.
45. Colorado Christian’s employee insurance plans are not eligible for grandfather status. See 45 C.F.R. § 1 47.140(a)(1)(i), 26 C .F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.7151251(a)(1)(i).
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II. The Affordable Care Act 46. In March 2010, C ongress passed, and President Obama signed into law, the Patient
Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010 ), collectively known as the “Affordable Care Act.”
47. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
48. The Act does not apply equally to all plans. 49. The Act does not apply equally to all insurers. 50. The Act does not apply equally to all individuals. 51. The Act applies differently to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 52. According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. 53. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria). 54. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
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55. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
56. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 e mployees may do likewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
57. The Act is not generally applicable because it provides for numerous exemptions from its rules.
58. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
59. The Act creates a system of individualized exemptions. 60. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers (“HHS waivers”). 61. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 62. HHS decides whether to grant waivers based on i ndividualized waiver requests from particular employers and other health insurance plan issuers. 63. Upon information and belief, thousands of HHS waivers have been granted. 64. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not.
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65. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not.
66. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements.
67. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.
68. Defendants’ waiver practices create a system of individualized exemptions. III.The Preventive Care Mandate
69. One of the provisions of the Affordable Care Act mandated that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directed the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
70. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 F ed. Reg. 41726 (2010).1 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
1 For ease of reading, references to “HHS” in this Complaint are to all three Departments.
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71. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
72. The Mandate went into effect immediately as an “interim final rule.” 73. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion. 74. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines. 75. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum. 76. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters. 77. One year after the first interim final rule was published, on J uly 19, 2011, the IOM published its recommendations. It recommended that the preventative services include “All Food
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and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
78. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; levonorgestral, also known as the “morning-after pill” or “Plan B”; and ulipristal, also known as “Ella” or the “week-after pill”; and other drugs, devices, and procedures.
79. Thirteen days later, on August 1, 2011, HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov/womensguidelines. On the same day HHS, the Department of Labor, and the Department of Treasury promulgated an amended interim final rule which reiterated the Mandate and added a narrow exemption for “religious employer[s].” 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
80. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
81. Instead the Mandate was essentially unresponsive to the concerns stated in the comments submitted by religious organizations.
82. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online.
83. Upon information and belief, over 100,000 c omments were submitted against the Mandate and its narrow “religious employer” exemption.
84. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we
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are in a w ar.” She did not state whom she and NARAL Pro-Choice America were warring against.
85. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like Colorado Christian, even though those rights were repeatedly raised in the public comments.
86. The Mandate requires that the University provide coverage or access to coverage for abortion and related education and counseling against its conscience in a manner that is contrary to law.
87. The Mandate constitutes government-imposed pressure and coercion on Colorado Christian to change or violate its religious beliefs.
88. The Mandate exposes Colorado Christian to substantial fines for refusal to change or violate its religious beliefs.
89. The Mandate imposes a burden on Colorado Christian’s employee and student recruitment efforts by creating uncertainty as to whether the University will be able to offer health insurance beyond 2012.
90. The Mandate places Colorado Christian at a competitive disadvantage in its efforts to recruit and retain employees and students.
91. The Mandate forces the University to provide coverage or access to coverage for Plan B, Ella, and other abortifacient drugs in violation of the University’s religious beliefs.
92. The University has a s incere religious objection to providing coverage for Plan B and Ella since it believes those drugs could prevent a human embryo—which it understands to
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include a fertilized egg before it imp lants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo.
93. The University considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
94. The University believes that Plan B and Ella can cause the death of the embryo. 95. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 96. The drug Ella can prevent the implantation of a human embryo in the wall of the uterus. 97. Plan B and Ella can cause the death of the embryo. 98. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 99. The use of artificial means to cause the death of a h uman embryo constitutes an “abortion” as that term is used in federal law. 100. The Mandate forces the University to provide insurance coverage or access to insurance coverage for emergency contraception, including Plan B and Ella free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 101. The Mandate forces the University to provide insurance coverage or access to insurance coverage for education and counseling concerning abortion that directly conflicts with the University’s religious beliefs and teachings. 102. Providing this counseling and education is incompatible and irreconcilable with the explicit messages and speech of the University. 103. The Mandate forces the University to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee and student health insurance coverage.
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104. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012.
105. The University has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. The University anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect. IV. The Narrow and Discretionary Religious Exemption
106. The Mandate indicates that that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C .F.R. § 147.130(a)(iv)(A).
107. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the 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)(iv)(B).
108. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
109. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
110. Most religious organizations, including the University, have more than one purpose.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 17 of 32
111. For most religious organizations, including the University, the inculcation of religious values is only one purpose among others.
112. The University is not an organization described in Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
113. The University reasonably expects that it will be subject to the Mandate despite the existence of the exemption.
114. On January 20, 2012, D efendant Sebelius announced that there would be no change to the “religious employer” exemption. Instead, she added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, t o comply with the new law,” on t he condition that those employers certify they qualify for the extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited February 7, 2012).
115. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different insurer-based mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 18 of 32

116. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013 ,” provided they meet certain criteria outlined in the guidance bulletin.2
117. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10, 2012 onward, offered “contraceptive coverage . . . by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization”; and (3) it has provided (for the first plan year beginning on or after August 1, 2012) a notice to plan participants stating that “[t]he organization that sponsors your groups health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing,” and that “[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services.”

2

See “Guidance on Temporary Enforcement Safe Harbor for Certain Employers, Group Health

Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive

Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of

the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code,”

U.S. DEP’T OF HEALTH & HUMAN SERVS. (Feb. 10, 2012), at 3, available at

http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last

visited February 17, 2012).

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118. On February 15, 2012, t he Defendants adopted as final, “without change,” the Mandate and its narrow “religious employers” exemption. 77 Fed. Reg. 8725, 8727.
119. On March 16, 2012, the Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM announced the Defendants’ intention to create an “accommodation” for non-exempt religious organizations under which the Defendants would require a health insurance issuer (or third party administrator) to provide coverage for these drugs and services— without cost sharing and without charge—to employees covered under the organization’s health plan. The ANPRM solicited public comments on structuring the proposed accommodation, and announced the Defendants’ intention to finalize an accommodation by the end of the Safe Harbor period. See https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-06689.pdf (published on March 21, 2012).
120. The ANPRM also announced Defendants’ intention to apply the Temporary Safe Harbor provision to student insurance plans provided by “nonprofit institutions of higher education that meet comparable criteria” to those established for the employer safe harbor. See id. at 14.
121. The ANPRM did not announce any intention to alter the Mandate or its narrow “religious employer” exemption, which were made “final, without change” on February 15, 2012.
122. In sum, the Mandate takes effect against Colorado Christian’s employee insurance plans on July 1, 2013.
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123. To qualify for the one-year non-enforcement period, Colorado Christian would thus be required to satisfy the Safe Harbor notice requirements outlined in the guidance bulletin by July 1, 2013.
124. Colorado Christian’s employee insurance plans, however, are not eligible for the Safe Harbor, because they provide coverage for contraceptive drugs other than Plan B and Ella.
125. Even if the Safe Harbor applied, Colorado Christian would be subject to enforcement action by Defendants under the Mandate no later than July 1, 2014.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 126. The University incorporates by reference all preceding paragraphs. 127. The University’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 128. The Mandate creates government-imposed coercive pressure on t he University to change or violate its religious beliefs. 129. The Mandate chills the University’s religious exercise. 130. The Mandate exposes the University to substantial fines for its religious exercise. 131. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 132. The Mandate imposes a substantial burden on the University’s religious exercise. 133. The Mandate furthers no compelling governmental interest.
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134. The Mandate is not narrowly tailored to any compelling governmental interest. 135. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 136. The Mandate and Defendants’ threatened enforcement of the Mandate violate the University’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 137. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 138. The University incorporates by reference all preceding paragraphs. 139. The University’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 140. Neither the Affordable Care Act nor the Mandate is neutral. 141. Neither the Affordable Care Act nor the Mandate is generally applicable. 142. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 143. The Mandate furthers no compelling governmental interest. 144. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 145. The Mandate creates government-imposed coercive pressure on t he University to change or violate its religious beliefs.
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146. The Mandate chills the University’s religious exercise. 147. The Mandate exposes the University to substantial fines for its religious exercise. 148. The Mandate exposes the University to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 149. The Mandate imposes a substantial burden on the University’s religious exercise. 150. The Mandate is not narrowly tailored to any compelling governmental interest. 151. The Mandate and Defendants’ threatened enforcement of the Mandate violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 152. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 153. The University incorporates by reference all preceding paragraphs. 154. The University’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. The University’s compliance with these beliefs is a religious exercise. 155. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it imp ossible for the University to comply with its religious beliefs.
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156. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the University and others.
157. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
158. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 159. The University incorporates by reference all preceding paragraphs. 160. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 161. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 162. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the University’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 163. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente)
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164. The University incorporates by reference all preceding paragraphs. 165. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on the University. 166. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 167. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate the University’s rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution. 168. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 169. The University incorporates by reference all preceding paragraphs. 170. The University teaches that abortion violates its religious beliefs. 171. The Mandate would compel the University to cooperate in activities through its provision of health insurance that the University teaches are violations of the University’s religious beliefs. 172. The Mandate would compel the University to provide education and counseling related to abortion. 173. Defendants’ actions thus violate the University’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
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174. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest.
175. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 176. The University incorporates by reference all preceding paragraphs. 177. The University teaches that abortion violates its religious beliefs. 178. The Mandate would compel the University to cooperate in activities through its provision of health insurance that the University teaches are violations of the University’s religious beliefs. 179. The Mandate would compel the University to provide, through its provision of health insurance, education and counseling related to abortion. 180. Defendants’ actions thus violate the University’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 181. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 26 of 32
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
182. The University incorporates by reference all preceding paragraphs. 183. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have their First Amendment interests accommodated. 184. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as the University “primarily” serves and employs members of the same faith as the organization. 185. Defendants’ actions therefore violate the University’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 186. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act
Lack of Good Cause 187. The University incorporates by reference all preceding paragraphs. 188. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute ‘good cause.’ 189. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful
26

Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 27 of 32
“consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
190. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the University is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
191. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 192. The University incorporates by reference all preceding paragraphs. 193. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the University and similar organizations. 194. Defendants’ explanation for its decision not to exempt the University and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 195. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U .S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 196. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 28 of 32
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 197. The University incorporates by reference all preceding paragraphs. 198. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 199. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 200. The Mandate requires issuers, including the University, to provide coverage or access to coverage of all Federal Drug Administration-approved contraceptives. 201. Some FDA-approved contraceptives cause abortions. 202. As set forth above, the Mandate violates RFRA and the First Amendment. 203. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 204. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 29 of 32
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
205. The University incorporates by reference all preceding paragraphs. 206. The Mandate is contrary to the provisions of the Affordable Care Act. 207. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”— i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 208. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 209. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 210. The Mandate requires issuers, including the University, to provide coverage or access to coverage for all Federal Drug Administration-approved contraceptives. 211. Some FDA-approved contraceptives cause abortions. 212. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 213. Absent injunctive and declaratory relief against the Mandate, the University has been and will continue to be harmed.
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 30 of 32
PRAYER FOR RELIEF Wherefore, the University requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against the University violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against the University and other organizations that object on religious grounds to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award the University the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just. Respectfully submitted this 22d day of March, 2012.
JURY DEMAND Colorado Christian University requests a trial by jury on all issues so triable.
s/ Eric Baxter Eric C. Rassbach Eric S. Baxter THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 erassbach@becketfund.org ebaxter@becketfund.org
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 31 of 32 Counsel for Plaintiff Colorado Christian University 8787 W. Alameda Ave. Lakewood, Colorado 80226
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Case 1:11-cv-03350-CMA-BNB Document 26 Filed 03/22/12 USDC Colorado Page 32 of 32
CERTIFICATE OF SERVICE I hereby certify that on March 22, 2012, I cau sed a copy of the foregoing First Amended Complaint to be served via the Court’s electronic case-filing system on the following counsel of record:
Michelle R. Bennett michelle.bennett@usdoj.gov
s/ Marie Peralta Marie Peralta

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03350-CMA-BNB
COLORADO CHRISTIAN UNIVERSITY,
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants. ______________________________________________________________________________
MINUTE ORDER ______________________________________________________________________________ Minute Order Entered by Magistrate Judge Boyd N. Boland
IT IS ORDERED that Defendants’ Renewed Motion to Stay Discovery [Doc. # 41] is DENIED for failure to comply with the requirements of D.C.COLO.LCivR 7.1A.
DATED: August 6, 2012

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland
Civil Action No. 11-cv-03350-CMA-BNB
COLORADO CHRISTIAN UNIVERSITY,
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants. ______________________________________________________________________________
ORDER ______________________________________________________________________________
This matter is before me on the following:
(1) Defendants’ Renewed Motion to Stay Discovery [Doc. # 44, filed 8/6/2012]
(the “Motion to Stay”); and
(2) Defendants’ Unopposed Motion for Extension of Deadlines [Doc. # 49, filed
8/14/2012] (the “Motion for Extension”).
I held a hearing on the motions this afternoon and made rulings on the record, which are
incorporated here.
IT IS ORDERED:
(1) The Motion to Stay [Doc. # 44] is DENIED; and
(2) The Motion for Extension [Doc. # 49] is GRANTED, and the following deadlines

are established: • The defendants’ responses to outstanding discovery are due on or before
October 1, 2012; • The discovery cut-off is extended to January 2, 2013; and • The dispositive motion deadline is extended to February 1, 2013.
Dated August 31, 2012. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge
2

 
 Case 1:11-cv-03350-CMA-BNB Document 62 Filed 09/14/12 USDC Colorado Page 1 of 20

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1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF COLORADO

3

Case No. 11-cv-03350-CMA-BNB

4

___________________________________________________________

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COLORADO CHRISTIAN UNIVERSITY,

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Plaintiff,

7

vs.

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KATHLEEN SEBELIUS, et al.,

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Defendants.

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____________________________________________________________

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Proceedings before BOYD N. BOLAND, United States

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Magistrate Judge, United States District Court for the

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District of Colorado, commencing at 1:32 p.m., August 31,

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2012, in the United States Courthouse, Denver, Colorado.

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____________________________________________________________

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WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS

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ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED...

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____________________________________________________________

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APPEARANCES

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ERIC S. BAXTER, Attorneys at Law, appearing for

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the plaintiff.

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MICHELLE R. BENNETT, Attorney at Law, appearing

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for the defendant.

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____________________________________________________________

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TELEPHONIC MOTIONS HEARING

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Case 1:11-cv-03350-CMA-BNB Document 62 Filed 09/14/12 USDC Colorado Page 2 of 20

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P R O C E E D I N G S

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(Whereupon, the within electronically recorded

3

proceedings are herein transcribed, pursuant to order of

4

counsel.)

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THE CLERK: Court is in session.

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THE COURT: We’re here this afternoon in Case

7

11-cv-3350, Colorado Christian University against Sebelius

8

and others, in connection with the Defendants’ Renewed

9

Motion to Stay Discovery. Mr. Baxter is on the phone for

10

the plaintiff, Mr. Bennett is on the phone for the

11

defendants. I have allowed counsel who office in remote

12

places, Washington -- a remote place, Washington, D.C., to

13

appear by telephone because this matter was reset at my

14

request based on a last-minute scheduling conflict.

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Mr. Baxter, can you hear me?

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MR. BAXTER: Yes. Thank you, Your Honor.

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THE COURT: Mr. Bennett?

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MS. BENNETT: Yes, Your Honor.

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THE COURT: Oh, I’m sorry, Ms. Bennett.

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MS. BENNETT: That’s okay.

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THE COURT: I see Michelle, but I read Michael.

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I’m sorry.

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All right. Also pending is an Unopposed Motion

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for Extension of Deadlines. I’ve read the -- let’s start

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with the Motion to -- Renewed Motion to Stay Discovery,

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which I have read, I’ve read the response. There have been

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a number of supplemental authorities submitted. I’ve

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reviewed my previous order, the objection to my previous

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order, the decision of the district judge in connection with

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my previous order. Ms. Bennett, I’ll hear anything more you

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have to say in support of your motion.

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MS. BENNETT: Thank you, Your Honor.

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I just -- I would just like to, I guess, highlight

9

a few of the -– as Your Honor knows, you consider the five

10

factors in determining whether to grant a stay. As I

11

understand you’re aware, there are now three cases, nearly

12

identical to this one, that have been dismissed for lack of

13

jurisdiction based on the same arguments -- the same

14

jurisdictional arguments that defendants advance here in

15

their pending motion and, to date, no court has rejected

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defendants’ jurisdictional arguments.

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It’s defendants’ assertion that it would be an

18

undue burden and expense on them to have to engage in

19

discovery at this point in the event that their Motion to

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Dismiss is later granted. To give Your Honor a sort of

21

sense of the burden, as you know, there are three defendant

22

agencies in this case. Plaintiff’s requests are rather

23

broad in applying to any employees, officers, agents of the

24

-- of the agencies, whether they had specifically anything

25

to do the rulemaking or not, but assuming, for the purposes

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Case 1:11-cv-03350-CMA-BNB Document 62 Filed 09/14/12 USDC Colorado Page 4 of 20

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of this argument, that we could limit that to just people

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that had some input into this rulemaking, we estimate that

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there’d be approximately 150 people with responsive

4

documents to the requests that we would -- we would need to

5

pull documents from.

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And not considering objections, which, as I’ll get

7

into in a moment, we think most of the requests would entail

8

a lot of documents that would be privileged. We anticipate

9

that there could be several hundred thousands of pages of

10

responsive material. To give Your Honor an example, I spoke

11

to one employee at one component of one of the agencies who

12

looked only through her e-mails for documents responding to

13

just two specific document requests, and she excluded any e-

14

mails dealing with the litigation, it was just e-mails

15

dealing with the policy of the regulations, and found 495 e-

16

mails, about 20 percent of which had attachments. As I

17

said, most of those were privileged, but just to give you a

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sense of the magnitude of discovery involved here.

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As I said, we expect that most of the documents

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that we would have -- that we haven’t already given

21

plaintiffs as part of the

administrative would be

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privileged, either by the deliberative process privilege,

23

attorney-client and work-product would probably be the main

24

ones. As I said, we already produced to the plaintiffs the

25

administrative record, which consists of the agencies’

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1

collection of non-privileged material that the defendants

2

relied on in promulgating the regulations. That was almost

3

200,000 pages. So to the extent that plaintiffs request

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information that defendants relied on in the rulemaking, it

5

would really, at this point, only be seeking documents that

6

defendants have said either they didn’t rely on or were

7

privileged, and as I’m sure Your Honor’s aware, even

8

pulling, reviewing, redacting and logging these documents

9

would be extremely time-consuming. And as I said, in light

10

of the fact that the defendants have a pending Motion to

11

Dismiss, we think that that would be an undue burden,

12

particularly if the motion is later -- is later granted.

13

With respect to the second factor, the harm to

14

plaintiffs, plaintiffs waited nearly nine months after

15

discovery commenced in this case to start serving any

16

discovery. Defendants don’t think that waiting a little bit

17

longer while the court resolves the jurisdictional issues

18

will cause plaintiffs any harm. As Your Honor had said, I

19

think the approximate time in this district is six months

20

for deciding a Motion to Dismiss. I don’t know if that’s

21

from the filing or the fully briefing, but defendants’

22

motion has been fully briefed since May 18th.

23

Plaintiffs don’t claim that there will be any

24

decline in evidentiary quality or witness availability

25

during this time frame. Their -- their assertion of harm is

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that, assuming the court has jurisdiction, they need a

2

ruling on the legality of the regulations in time for their

3

next plan year, which starts on July 1st of 2013. As we’ve

4

noted in almost every filing, though, that doesn’t take

5

account of the safe harbor, which protects plans for an

6

additional year, into July 2014.

7

And I also think it’s relevant in this case that

8

defendants have promised to amend the regulations by August

9

of 2013 at the latest, so even if the court were to conclude

10

that it had jurisdiction and provide a ruling by July 2013

11

when plaintiff’s plan year starts, the new regulations

12

wouldn’t be in -- would be in effect, at the latest, a month

13

later. And so we don’t really see in this instance that

14

plaintiffs have really shown any harm from a temporary stay

15

of discovery until the court can resolve the jurisdictional

16

issues.

17

With respect to the last three factors, I think

18

mostly convenience to the court and the public interest. As

19

we indicated, a lot of the material that plaintiff seeks

20

will be objectionable based on privilege, based on burden,

21

based on relevance, and so although I do think we could

22

probably work out some of our differences, as plaintiffs

23

suggests in their response, I think there would also be a

24

lot of things that the parties wouldn’t be able to work out

25

and would require the court to resolve some objections, or

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some discovery disputes generally, and I think that that

2

would use up the court’s time and resources and, which

3

again, would be an undue use of those resources if

4

defendants’ motion is later -- a Motion to Dismiss is later

5

granted.

6

Just one additional thing. I think in plaintiff’s

7

response they cite United Financial Casualty Company for the

8

proposition that a stay of discovery is unwarranted in this

9

district, even when the pending Motion to Dismiss raises

10

jurisdictional issues, and I just wanted to point out that

11

in that case there were seven defendants and only one of

12

them had moved to dismiss for lack of jurisdiction. That’s

13

not the case here. As we said, if our motion is granted,

14

then that will resolve the c ase. Also, there wasn’t a

15

situation there, like there is here, where similar motions

16

have been granted, and, of course, those are not binding on

17

this -- on this court, but we do think they’re persuasive,

18

and so we would urge Your Honor to look at the cases that we

19

cite in our brief which did impose a stay of discovery in

20

other cases where there was a challenge to subject matter

21

jurisdiction pending.

22

And so based on those factors, Your Honor, we

23

would ask again that you stay the case -- or stay discovery

24

temporarily until -- just until the jurisdictional issue is

25

resolved.

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THE COURT: The plaintiff has brought to my

2

attention Judge Kane’s preliminary injunction granted in the

3

Hercules case. What impact -- what do you make of the

4

significance of that case?

5

MS. BENNETT: Your Honor, first of all, with

6

respect to the -- that case is quite different here, that

7

involved a for-profit plaintiff, which doesn’t qualify for

8

the safe harbor, and so -- and is not -- at least as it is

9

intended now -- is not going to benefit from the amendments

10

to the regulations that the agency is currently making, so

11

we didn’t raise any jurisdictional arguments in that case,

12

and so --

13

THE COURT: So you -–

14

MS. BENNETT: -- that doesn’t impact the Motion to

15

Dismiss that we filed.

16

With respect to any discovery, the parties are --

17

first of all, we’re still deciding whether to appeal that

18

case, and so the court has ordered us to meet, I think it’s

19

near the end of October, to come up with some sort of a plan

20

for the rest of the case, and plaintiffs in that case have

21

indicated to me that they do not intend to seek any or will

22

only seek minimal discovery, so to the extent that

23

plaintiffs are suggesting that, well, you’re going to have

24

to produce a bunch of stuff in that case, so what’s the

25

burden here, I think that’s just -- at least at this point,

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based on what plaintiff’s counsel in that case has told me

2

-- is not an issue.

3

THE COURT: So did I understand you to say that the

4

Motion to Dismiss in Judge Kane’s case is not based on a

5

lack of jurisdiction?

6

MS. BENNETT: That’s right, Your Honor, it’s only

7

based on --it’s based on the merits, it’s based on failure

8

to state a claim. We have not raised any jurisdictional

9

arguments in that case and, again, that’s because for-profit

10

organizations don’t qualify for the enforcement safe harbor,

11

nor are they expected to benefit from the amended

12

regulations that the agency is currently working on.

13

THE COURT: Thank you.

14

Mr. Baxter?

15

MR. BAXTER: Thank you, Your Honor.

16

Let me respond first to your question about the

17

Hercules litigation, and then I’ll try to respond of each of

18

Ms. Bennett’s points after that.

19

The Hercules decision is significant because it

20

shows that there is substantial merit to the party’s claim.

21

The judge in that -- Judge Kane in that case found there was

22

a substantial likelihood of success on the merits, and it’s

23

not correct that the safe harbor protects non-profit

24

entities to the extent that is implied. The safe harbor

25

simply says that the government will not enforce or seek

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penalties against a non-profit that is in violation of the

2

law, but in related proceedings, in the Wheaton case, the

3

Wheaton College case, defendants have already acknowledged

4

that the mandate is in fact -- will, in fact, still be in

5

effect against non-profits and they will be subject to

6

private enforcement claims which are allowed -- which are

7

provided under ERISA, ERISA’s link into the Affordable Care

8

Act. So the reality of the matter is that on July 1st,

9

2013, Colorado Christian will be subject to the mandate, it

10

will be subject to potential private enforcement suits

11

regardless of the safe harbor.

12

I’d also like point out that even if there’s no --

13

no discovery from Hercules, which is I’m not aware if the

14

plaintiff in that case decided he will seek discovery or

15

not, with 26 cases pending there’s bound to be discovery in

16

one case or another, and there’s no harm by requiring the

17

plaintiffs to go -- or the defendants to go forward with

18

their discovery obligations at this time.

19

It’s also incorrect -- I think that there are some

20

kind of (inaudible) out there that all of the courts are

21

deciding -- you know, agree that there’s no jurisdiction.

22

In the Nebraska case that the defendants cite, the judge

23

there, on standing, didn’t reach any issues that are present

24

in this case. Several of the plaintiffs were not directly

25

subject to the regulation, and the court found that they

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didn’t have standing, and the parties that were directly

2

subject to the regulation were grandfathered, and so they --

3

they also weren’t required to comply with the mandate.

4

In the two DC cases that have been decided, Judge

5

Boasberg’s case looks at the merits. Judge Huvelle at the

6

hearing just last week, or the last two weeks, indicated

7

that she was not happy that she hadn’t realized until the

8

day before the hearing that they were companion cases and

9

she was not comfortable having different decisions coming

10

out of the same district, and both of those decisions rely

11

on the same circuit opinions from the Third Circuit while

12

distinguishing DC cases, and there will be appeals, and

13

there’s a Motion for Reconsideration on one of them and an

14

appeal had been filed in the other, and so I don’t think

15

there’s any indication that those cases will necessarily be

16

upheld or that other courts won’t decide otherwise.

17

So, in essence, the claims here are the same they

18

were at the time that the defendants first filed their

19

motion for a stay. At that time they alleged that there was

20

going to be -- you know, there was going to be a

21

jurisdictional motion to dismiss, the court was aware of

22

that, the fact that there could be a dismissal in this case,

23

and even on the appeal up to Judge Arguello -- although she

24

denied the appeal for timeliness, she acknowledged that she

25

had authority if she thought there was some problem to grant

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the relief that the defendants seek, and she chose not to.

2

So there’s really n othing new here that would

3

justify a different ruling. It’s really almost an attempt

4

to get around the fact that, you know, the clearly

5

(inaudible) standard from the -– from your first order

6

denying the stay back in January. Or February.

7

As far as the burden, again, there’s nothing

8

different here than what was known at the time of the first

9

motion. There are procedures for, you know, narrowing

10

discovery or seeking protective orders that are available to

11

defendants. They have never consulted with us about the

12

burden of discovery. Today is the first time I’ve heard

13

about the number of people they think would be involved, or

14

the number of pages, and we’re certainly willing to consult

15

with them on that and, if necessary, resolve any of those

16

issues by motion.

17

As far as Ms. Bennett mentioned that there’s no

18

concern about the decline of evidentiary quality, again,

19

that’s always a concern, there’s -- with time documents are

20

lost. If we seek a 30(b)(6) or other deposition, the

21

knowledge and ability of that witness to prepare for the

22

deposition is impaired as time passes, and so we do think

23

that there is -- there is prejudice to Colorado Christian if

24

discovery is further stayed.

25

So finally, I would just reiterate that, you know,

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this is -- if the defendants really wanted to avoid

2

discovery, that is completely within their control. They

3

could -- you know, they claim that they don’t seek to impair

4

the religious liberty rights of the plaintiffs in this or

5

any of the other cases, that’s why they put the safe harbor

6

in place, but the safe harbor’s incomplete. There -- it

7

would not be difficult for them to simply grant a full

8

exemption, and that was requested of them in the Wheaton

9

College case, they refused to do that, and so by keeping the

10

pressure of the final regulation, which will take effect

11

against Colorado Christian University on July 1st, you know,

12

they’ve showed that they’re not willing to do what it would

13

take to really put this -- you know, really take the burden

14

off the organizations like Colorado Christian, and so for

15

that reason alone, I would urge the Court to deny their

16

motion for a stay.

17

THE COURT: Thank you.

18

Ms. Bennett, anything more?

19

MS. BENNETT: Sure, Your Honor, just to follow-up

20

on a few points that Mr. Baxter made.

21

With respect to the private enforcement, I would

22

urge Your Honor to -- which you probably already have looked

23

at the Wheaton College decision, the court explicitly

24

addressed that issue and said that the speculative nature of

25

that did not create a standing or a ripe claim. And I’d

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also note that in that case the college’s plan year start in

2

January of 2013, whereas here, it’s not until July of 2013,

3

and so as I mentioned before, the new regulations, the

4

agency intends to finalize them by August of 2013, so a

5

month later, and so the courts, both in Wheaton College and

6

in Belmont Abbey both addressed the speculative nature of

7

the private enforcement and said that that’s not sufficient

8

to create jurisdiction.

9

I would also note that if you read the Wheaton

10

College decision, there’s absolutely nothing in there about

11

the court in some way feeling bound by -- to adopt Judge

12

Boasberg’s decision. She -- Judge Huvelle certainly

13

considered arguments that the parties made, had oral

14

argument on the issue and wrote her own separate decision,

15

and so there’s no reason to think that it was in some way

16

because she felt bound by Judge Boasberg’s decision.

17

With respect to plaintiff’s assertion that there

18

-- well, with all these cases surely there will be discovery

19

in one. At this point, this is the only case where any

20

party has sought discovery against the defendants. We have,

21

as I indicated, moved to dismiss for lack of jurisdiction

22

all of the cases brought by non-profits, and we’ve also, in

23

instances where there has been some sort of moving forward

24

of discovery, a Rule 26 conference or what have you, we have

25

also moved to stay discovery and will continue to do so, and

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so we don’t think that provides any basis that eventually

2

there may be discovery in one of these cases to allow us to

3

go forward here.

4

And I think -- oh, with respect to plaintiff’s

5

concern about evidentiary quality, first of all, I would

6

notice that this is the first time they’ve mentioned that,

7

it wasn’t in their response, but as defendants indicated

8

before, we have taken measures to preserve documents and

9

data in the event that discovery is ultimately needed, and

10

so there’s no concern about the evidentiary quality in that

11

regard, and so, again, for the reasons we stated, we would

12

request that the Court grant our motion.

13

THE COURT: Thank you.

14

The Defendants’ Renewed Motion to Stay Discovery

15

is denied. Let me begin by emphasizing what is not before

16

me, and that is the Motion to Dismiss. I make no judgment

17

on the merits of that, that’s a matter which the district

18

judge has reserved to herself, and I’m not going to attempt

19

to anticipate what her ruling would be based on the strength

20

or weaknesses of decisions in other jurisdictions.

21

Turning then to the five factors appropriately

22

considered with respect to the Motion to Stay, I find that

23

the interests of the plaintiff in proceeding expeditiously

24

to determination of this important issue -- which is an

25

important issue of public concern -- so that brings in also

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the public interest, is substantial. This is an important

2

case. There are risks of enforcement against the plaintiff

3

which a stay would exacerbate, and so I find that those

4

interests, the interest of proceeding expeditiously and the

5

public interest weigh heavily in favor of having the matter

6

move forward and against a stay.

7

There is always burden on all parties to

8

litigation. Here, there’s an argument that the burden is

9

undue on the defendants. I don’t allow discovery which

10

imposes an undue burden. I allow that discovery which is

11

appropriate and necessary to the reasonable resolution of a

12

case. So if the discovery sought by the plaintiff is unduly

13

burdensome, that matter can be brought before me, and I’ll

14

consider the arguments and make a decision on that so I can

15

address the burden issue separately and more precisely than

16

through an overall stay.

17

The convenience of the Court is not seriously

18

implicated either way. We are here to resolve disputes and

19

to prepare disputes for resolution, and so I find that that

20

doesn’t -- that factor doesn’t weigh either way, and there

21

are no non-party interests that I am aware of which weigh

22

heavily towards a stay. So I’m going to deny the Motion to

23

Stay for those reasons.

24

That brings us to the Unopposed Motion for

25

Extension of Deadlines. If I have understood that motion,

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what you are seeking is an extension by which the defendants

2

must respond to the currently existing and outstanding

3

discovery of -- which would take that to October 1st. A

4

cutoff of the discovery -- I mean, an extension of the

5

cutoff discovery to two months after that, so that would be

6

December 3rd, and a dispositive motion deadline extension to

7

approximately a month after that, which would be giving you

8

a little extra time because of holidays surroundings there,

9

around January 11.

10

MR. BAXTER: Your Honor, this is -–

11

THE COURT: Yes.

12

MR. BAXTER: -- this is Eric Baxter, if I may. I

13

think that we had asked -- I’m sure if you’re assuming we

14

had asked for what you’re ruling, we’d asked for December

15

29th for discovery cutoff, and then the dispositive motions

16

30 days after that. If we had from the date that the

17

government’s responses were originally due, which was August

18

15th, we would have had 75 days after that for the discovery

19

cutoff, which would have put us at least -- I guess,

20

assuming that there’s -- if the relief in the 30-day

21

requests from today were granted, that would put us into the

22

middle of December for the discovery cutoff deadline, and

23

then we would ask for two extra weeks after that just to

24

make sure -- just for clarification.

25

THE COURT: So I’ve misunderstood. What -- when do

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you want the discovery -- the currently pending -- the

2

responses to the currently depending -- pending -- let me

3

start over. When do you want responses to pending discovery

4

due?

5

MR. BAXTER: So we had agreed to 30 days from

6

today, which would roughly be the 30th of September or

7

October 1st, that part’s correct.

8

THE COURT: All right. And then a cutoff of what?

9

MR. BAXTER: I think we asked for December 29th for

10

the discovery cutoff, and then January 28th for the

11

dispositive motion.

12

THE COURT: All right. And that’s -- those

13

extensions that you’ve said are what you still want, is that

14

right?

15

MR. BAXTER: Correct.

16

THE COURT: All right.

17

Do you agree with that, Ms. Bennett?

18

MS. BENNETT: Yeah, we have no objection to that.

19

THE COURT: All right. I will grant the Unopposed

20

Motion for Extension of Deadlines as follows: Responses to

21

currently outstanding discovery are due on October 1, the

22

discovery cutoff is extended to December 29th, and the

23

dispositive motion deadline is extended to January 28th,

24

2013.

25

MR. BAXTER: Your Honor, this is Mr. Baxter

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again --

2

THE COURT: Yes, sir.

3

MR. BAXTER: -- and I apologize to make this

4

difficult.

5

Since we are -- since your order has just

6

requested us that number of days and the 29th falls on a

7

Saturday, I’m wondering if we can just for clarity say, you

8

know, January 2nd for the discovery cutoff deadline, which

9

puts us right past the first holiday, and then February --

10

February -- or, yeah, I guess that would be February 1st for

11

the dispositive motion deadline.

12

THE COURT: Any objection to that, Ms. Bennett?

13

MS. BENNETT: No, Your Honor.

14

THE COURT: All right, that’s what I’ll do then.

15

Let me make sure I’ve got it right. Responses due October

16

1; the discovery cutoff, January 2nd, 2013; the dispositive

17

motion deadline, February 1st, 2013, right?

18

MR. BAXTER: Correct.

19

THE COURT: Okay.

20

Mr. Baxter, anything else this afternoon?

21

MR. BAXTER: Nothing. Thank you, Your Honor.

22

THE COURT: Ms. Bennett?

23

MS. BENNETT: No, Your Honor. Thanks again for

24

allowing us to appear via phone.

25

THE COURT: Yes, thank you for making yourselves

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available. Good day.

2

MR. BAXTER: Thank you, Your Honor.

3

THE CLERK: Court is in recess.

4

5

(Whereupon, the within hearing was then in

6

conclusion at 1:59 p.m. on August 31, 2012.)

7

8

I certify that the foregoing is a correct

9

transcript, to the best of my knowledge and belief, from the

10

record of proceedings in the above-entitled matter.

11

12

/s/ Bonnie Nikolas

September 04, 2012

13

Signature of Transcriber

Date

14

15

16

17

18

19

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21

22

23

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello
Civil Action No. 11-cv-03350-CMA-BNB
COLORADO CHRISTIAN UNIVERSITY,
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION
In this religious freedom action for declaratory and injunctive relief, Plaintiff
Colorado Christian University (“Colorado Christian” or “CCU”) asserts that Defendants
have violated its rights under the Religious Freedom Restoration Act (“RFRA”), the First
Amendment of the United States Constitution, and the Administrative Procedure Act by
issuing certain regulations pursuant to the Patient Protection and Affordable Care Act
(“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010). This matter is before the
Court on Defendants’ Federal Rule of Civil Procedure 12(b)(1) Motion to Dismiss. (Doc.
# 31.) For the reasons discussed below, Defendants’ motion is granted.

I. BACKGROUND A. RELEVANT STATUTES AND REGULATIONS
The legal challenge in this case revolves around the ACA requirement that group health plans provide no-cost coverage for “preventative care and screenings” for women. 42 U.S.C. § 300gg-13(a)(4).1 The Health Resources and Services Administration (“HRSA”) was tasked with developing guidelines for such “preventative care and screenings.” Id. The HRSA adopted guidelines that require insurance plans to cover, among other things, all “contraceptive methods,” including the emergency contraceptives levonorgestrel (also known as “Plan B” or the “morning-after pill”) and ulipristal (also known as “Ella” or the “week-after pill”), “sterilization procedures, and patient education and counseling for all women with reproductive capacity” that are approved by the Food and Drug Administration. See http://www.hrsa.gov/ womensguidelines. On August 1, 2011, Defendants the United States Department of Health and Human Services (“HHS”), the United States Department of Labor (“Labor”), and the United States Department of the Treasury (“Treasury”) promulgated an interim final rule, effective August 1, 2011, requiring “group health plan[s] and . . . health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost-sharing with respect to” the preventive services for
1 The preventative care coverage mandate does not apply to grandfathered health plans – i.e., plans existing on or before March 23, 2010. See Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34538, 34540 (June 17, 2010). However, CCU asserts, Defendants do not dispute, and the Court agrees that CCU does not maintain such a health plan. (See Doc. # 26 at 8.)
2

women included in the HRSA’s guidelines. 76 Fed. Reg. 46621; see also 45 C.F.R.
§ 147.130.
The interim final rule was amended, however, to “provide HRSA additional
discretion to exempt certain religious employers from the [HRSA] Guidelines where
contraceptive services are concerned.” 76 Fed. Reg. 46621, 46263; see also 45 C.F.R.
§ 147.130(a)(1)(iv)(A). The HRSA developed such an exemption to include, effectively,
houses of worship but not other religious organizations like CCU.2
Defendants received over 200,000 comments in response to the amended interim
final rule. Many of the comments asserted that the religious employer exemption was
overly narrow and that its limited scope could impinge religious freedoms. See Group
Health Plan and Health Insurance Issuers Relating to Coverage of Preventative
Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725,
8727 (Feb. 15, 2012). After considering these comments, Defendants finalized the
amendment to the interim final rule without making any changes to the criteria used to
determine whether an organization qualifies for the religious employer exemption. Id. at
2 To qualify for the religious employer exemption under the interim final rule, an organization must satisfy all of the following criteria:
The inculcation of religious values is the purpose of the organization. (1) The organization primarily employs persons who share the religious tenets of the
organization. (2) The organization serves primarily persons who share the religious tenets of the
organization. (3) 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) (HHS); see also 26 C.F.R. § 54.9815-2713T (Treasury); 29 C.F.R. § 2590.715-2713(a)(1)(iv) (Labor).
3

8730 (“the amendment to the interim final rule . . . is adopted as a final rule without
change”). However, they also created a one-year enforcement “safe harbor” for “certain
non-exempted, non-profit organizations with religious objections to covering
contraceptive services.” Id. at 8728. Defendants have agreed that, during the safe
harbor, which will remain in effect until at least August 1, 2013, they will not take any
enforcement action against an employer or group health plan that complies with the
conditions of the safe harbor. See HHS, Guidance on Temporary Enforcement Safe
Harbor, at 3 (Aug. 15, 2012), available at http://cciio.cms.gov/resources/files/prev-
services-guidance-08152012.pdf. To comply with the safe harbor, organizations must:
(1) be organized and operate as a non-profit entity; (2) have refrained from providing contraceptive coverage from February 10, 2012, onward “because of the religious beliefs of the organization”; (3) provide notice to participants stating that “contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012”; and (4) self-certify that they satisfy the first three criteria.
HHS, Guidance on Temporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012), available
at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-
Bulletin.pdf.3
3 In a revised guidance, Defendants clarified: (1) that the safe harbor is also available to non-profit organizations with religious objections to some but not all contraceptive coverage . . . ; (2) that group health plans which took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . . ; and (3) that the safe harbor may be invoked without prejudice by non-profit organizations that are uncertain whether they qualify for the religious employer exemption . . . .
HHS, Guidance on Temporary Enforcement Safe Harbor, at 1 n.1 (Aug. 15, 2012), available at http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf.
4

When Defendants issued the amended interim final rule in February 2012, they stated that “[b]efore the end of the temporary enforcement safe harbor,” they would “work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage.” 77 Fed. Reg. 8725, 8728. Consistent with this plan, on March 21, 2012, Defendants filed an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register, which formally declared their intention to further amend the interim final rule after soliciting input from interested parties and the public. The ANPRM “presents questions and ideas” about how to “accommodat[e] nonexempt, non-profit religious organizations’ religious objections to covering contraceptive services,” while “assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.”4 77 Fed. Reg. 16501, 16503. Defendants state that the ANPRM “is the first step toward promulgating these amended final regulations. Following the receipt of public comment, a notice of proposed rulemaking (NPRM) will be published, which will permit additional public comment, followed by amended final regulations.” Id.
4 One potential accommodation Defendants have proposed is to require health insurance issuers to provide insurance coverage that excludes contraceptive services to objecting religious organizations while simultaneously offering contraceptive coverage directly to plan participants without charging either the participants or the organization. 77 Fed. Reg. 16501, 16505.
5

B. COLORADO CHRISTIAN UNIVERSITY Colorado Christian University is a Christian liberal arts university located in
Lakewood, Colorado, which is “committed to offering a complete education that develops students intellectually, professionally, and spiritually.” (Doc. # 26 at 4.) As such, education at CCU centers on the Christian faith. (Id.) The university “describes itself as a ‘Christ-centered community’ and commits, in its mission, to ‘exemplary academics, spiritual formation, and engagement with the world.’” (Id. at 5.) All CCU employees profess the same Statement of Faith, “which establishes the essential framework within which members of the University both unite in shared beliefs and explore differences.” (Id.)
Colorado Christian’s beliefs include traditional Christian teachings on the sanctity of life, including that “each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception.” (Id. at 5–6.) Thus, CCU teaches and believes that “abortion ends a human life and, with rare exceptions, is a sin.” (Id. at 6.) Accordingly, CCU asserts that deliberately providing insurance coverage for, or deliberately providing insurance that would facilitate access to, abortion-inducing drugs, abortion procedures, and related services would violate its deeply held religious beliefs, regardless of whether the insurance was paid for by CCU or an insurer.5 (Id.) Colorado Christian “has no conscientious
5 After the instant motion was fully briefed, CCU informed the Court that it recently switched to, and now maintains, self-funded healthcare plans which are managed by a third-party administrator. (See Doc. # 40-1 at 2.)
6

objection to providing coverage for non-abortion-inducing contraceptive drugs and devices.” (Id.) C. PROCEDURAL HISTORY
Colorado Christian initiated this action on December 22, 2011, against the three Departments responsible for the contraceptive-services regulation – HHS, Labor, and Treasury – and their respective Secretaries. (Doc. # 1.) After CCU filed suit, Defendants finalized the amendment to the interim final rule, created the one-year enforcement safe harbor, and declared their intention to amend, again, the interim final rule to accommodate non-profit religious organizations with religious objections to contraceptive coverage. Defendants then moved the Court to dismiss the case for lack of jurisdiction, asserting that CCU did not have standing and that the case was not ripe. (Doc. # 22.)
Before CCU responded, Defendants filed the ANPRM, effectively formalizing their previously stated plan to further amend the interim final rule. Thereafter, CCU responded to Defendants’ motion to dismiss and also filed an Amended Complaint (Doc. # 26), the latter of which mooted Defendants’ motion (see Doc. # 35). On April 9, 2012, Defendants renewed their motion, again asking the Court to dismiss the case for lack of jurisdiction.6 (Doc. # 31.)
6 Colorado Christian responded to the motion on May 3, 2012 (Doc. # 34), to which Defendants replied on May 18, 2012 (Doc. # 36).
7

II. STANDARD OF REVIEW A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may take the form of either a facial attack on the complaint’s allegations relating to jurisdiction or a challenge to the veracity of the alleged jurisdictional facts. See Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir. 1995). A facial attack on the complaint’s allegations regarding subject matter jurisdiction questions the legal sufficiency of the complaint. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009). In a factual challenge, on the other hand, the defendant “may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Holt, 46 F.3d at 1003. The instant motion challenges jurisdiction only on the face of CCU’s amended complaint. (See Doc. # 31 at 9.) The Court accepts CCU’s factual allegations as true, see Smith, 561 at 1097, and determines merely whether they are facially sufficient to plausibly establish jurisdiction, see Commonwealth Property Advocates, LLC v. Mortgage Electronic Registration Systems, Inc., 680 F.3d 1194, 1201 (10th Cir. 2011) (“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.” (internal quotation marks and citations omitted)). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). As the party invoking federal jurisdiction, CCU bears the burden of establishing that such jurisdiction exists. See Loving v. Boren, 133 F.3d 771, 772 (10th Cir. 1998).
8

III. DISCUSSION As with their initial motion to dismiss, Defendants base their renewed motion on standing and ripeness grounds. (See Doc. # 31.) Article III, Section 1 of the United States Constitution confers upon federal courts “[t]he judicial Power of the United States,” and Article III, Section 2 provides that this power extends to certain categories of “Cases” and “Controversies.” As such, “a live case or controversy is a constitutional prerequisite to federal jurisdiction.” Fletcher v. United States, 116 F.3d 1315, 1321 (10th Cir. 1997). This prerequisite imposes both standing and ripeness requirements. See Clinton v. City of New York, 524 U.S. 417, 429–30 & n.15 (1998); Alto Eldorado P’ship v. Cnty. of Santa Fe, 634 F.3d 1170, 1173 (10th Cir. 2011). Although these requirements often overlap, they require “distinct inquiries: ‘Whereas ripeness is concerned with when an action may be brought, standing focuses on who may bring a ripe action.’” Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007) (emphasis deleted) (quoting Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 n.1 (3d Cir. 1996)). Because ripeness “provides a slightly more narrow ground for dismissal than standing,” the Court will address Defendants’ ripeness challenge first. See Zubik, 2012 WL 5932977, at *7 n.12. Before doing so, however, the Court notes that nine other federal district courts, and one federal appellate court, have already addressed the jurisdictional arguments Defendants raise here. See Univ. of Notre Dame v. Sebelius, No. 3:12-cv-0523 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-00158 (S.D.
9

Miss. Dec. 20, 2012); Wheaton Coll. v. Sebelius, No. 12-5273 (D.C. Cir. Dec. 18, 2012); Roman Catholic Archdiocese of New York v. Sebelius, --- F. Supp. 2d ----, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012); Most Reverent David A. Zubik v. Sebelius, No. 2:12cv-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012) (unpublished); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012) (unpublished); Legatus v. Sebelius, --- F. Supp. 2d ----, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Wheaton Coll. v. Sebelius, --- F. Supp. 2d ----, 2012 WL 3637162 (D.D.C. Aug. 24, 2012), Belmont Abbey Coll. v. Sebelius, --- F. Supp. 2d ----, 2012 WL 2914417 (D.D.C. July 18, 2012); Nebraska v. U.S. Dep’t of Health & Human Servs., --F. Supp. 2d ----, 2012 WL 2913402 (D. Neb. July 17, 2012).
Eight of the nine district courts decided that they lacked jurisdiction over the nonprofit religious organizations before them. With the exception of the courts in the Biloxi and Legatus cases, they did so based on both standing and ripeness grounds.7 At the district level, only the Roman Catholic Archdiocese of New York court determined that it had jurisdiction to proceed over certain nonprofit religiously affiliated plaintiffs. See 2012 WL 6042864, at *23. On December 18, 2012, the D.C. Circuit Court of Appeals, in a two-page summary order, disagreed with the Wheaton and Belmont Abbey district courts’ rulings with respect to the issue of standing. Wheaton Coll., No. 12-5273, at 1–2. Yet, it did not reverse and remand either case. Rather, although it determined that
7 The Biloxi court decided solely the ripeness question, and the court in Legatus addressed only standing.
10

neither of the cases before it were fit for review, the court held the cases in abeyance and retained jurisdiction over them. Id. at 2–3. A. RIPENESS
The ripeness doctrine “is 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). The doctrine’s basic rationale is to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1997). When assessing ripeness, the Court “evaluate[s] both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149.
Defendants argue that CCU’s challenge is not ripe because the ANPRM began the process of further amending the interim final rule and, in the meantime, CCU is protected from enforcement by the temporary safe harbor. (Doc. # 31 at 2–3.)
1. Fitness of the Issues In general, for a challenge to an administrative regulation to be fit for judicial review, the challenge must be to a “final agency action.” Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1093–94 (10th Cir. 2004). An administrative
11

regulation is final “when it is definitive rather than tentative, when it has a direct and immediate effect on the day-to-day business of the parties, and when it has the status of law and requires immediate compliance.” Colorado Envtl. Coal. v. Lujan, 803 F. Supp. 364, 369 (D. Colo. 1992) (citing Abbott Labs., 387 U.S. at 151–52). The finality of an administrative action is “interpreted pragmatically.” Sierra Club v. Yeutter, 911 F.2d 1405, 1417 (10th Cir. 1990) (citing Abbott Labs., 387 U.S. at 149).
In the instant case, Defendants have not only committed to further amend the interim final rule but, in fact, have initiated a rulemaking process to do so. Interpreted in a pragmatic way, Defendants’ actions render tentative, as opposed to final, the regulation at issue and Defendants’ position on the issues raised by CCU. See, e.g., Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998) (noting that a claim is unripe when “the possibility that further consideration will actually occur before [the agency’s decision] is implemented is not theoretical, but real”). Had Defendants failed to take affirmative steps to follow through with their commitment, the Court may well have sided with CCU on the issue of ripeness. But by issuing the ANPRM and beginning the rulemaking process, Defendants have moved beyond the theoretical in considering how to accommodate organizations like CCU. They have also substantiated the good-faith presumption applicable to their consistent statements that the interim final rule will be further amended and will not be enforced in its current form against organizations like CCU. See Belmont Abbey Coll., 2012 WL 2914417, at *9 (collecting cases in support of the proposition that agencies are presumed to act in good
12

faith absent compelling evidence to the contrary and observing that, with regard to the interim final rule, “[t]he government . . . has done nothing to suggest that it might abandon its efforts to modify the rule – indeed, it has steadily pursued that course – and it is entitled to a presumption that it acts in good faith”).
Further, as against CCU, the amended interim final rule does not directly and immediately affect its day-to-day business or require immediate compliance, because CCU is protected by the temporary enforcement safe harbor. In its amended complaint, CCU alleges that its “employee insurance plans . . . are not eligible for the Safe Harbor, because they provide coverage for contraceptive drugs other than Plan B and Ella.” (Doc. # 26 at 20.) However, the regulations indicate that CCU’s provision of other contraceptive drugs does not preclude application of the safe harbor.8 77 Fed. Reg. 16501, 16504 (indicating that organizations which cover some contraceptives may qualify for the safe harbor). As such, CCU is not currently required to comply with the rule on a day-to-day basis.
Although some of the courts which have recently considered the issues presented here have found that application of the safe harbor does not preclude the exercise of subject matter jurisdiction, they have done so in the context of addressing their respective plaintiff’s standing. See Roman Catholic Archdiocese of New York,
8 Moreover, after amending its complaint, CCU indicated that, based on Defendants’ August 15, 2012 revised guidance (see fn.3, supra), “the safe harbor [extends] to organizations like CCU that covered some objectionable contraceptive services after February 10, 2012 . . . .” (Doc. # 52 at 1.) Although unnecessary for the Court’s determination, this eventuality supports the conclusion that, in fact, CCU is protected by the safe harbor.
13

2012 WL 6042864, at *13; Belmont Abbey Coll., 2012 WL 2914417, at *8–9. As far as the ripeness inquiry is concerned, however, the temporary safe harbor provides meaningful protection to CCU. It does not merely delay the inevitable but, rather, provides Defendants with the time they need to amend the interim final rule in a way that might alleviate the harm CCU complains of and, as such, obviate the need for judicial review. See Texas v. United States, 523 U.S. 296, 300 (1998) (“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.” (internal quotation marks and citation omitted)); Wheaton Coll., No. 12-5273, at 2 (concluding that cases involving other nonprofit religious organizations “are not fit for review at this time because if we do not decide the merits of [their] challenge to the current rule now, we may never need to” (quotation marks, citation, and alterations omitted)).
Colorado Christian objects to this line of reasoning asserting, essentially, that no amendment crafted by Defendants could adequately address its grievances. (See Doc. # 34 at 12.) To be sure, a distinct possibility exists that CCU will end up litigating its claims against Defendants. Colorado Christian’s amended complaint came on the heels of, and was responsive to, Defendants’ ANPRM, which suggested – as an accommodation to CCU’s concerns – a proposal for requiring health insurance issuers to provide insurance coverage that excludes contraceptive services to objecting religious organizations while simultaneously offering contraceptive coverage directly to plan participants without charging either the participants or the organization. 77 Fed.
14

Reg. 16501, 16505. Had such a proposal been finalized as an amendment to the interim final rule, CCU’s claims would, by all appearances, now be ripe. But the fact remains that Defendants’ proposal was just that – a proposed solution subject to comment and alteration. On this point, even the Roman Catholic Archdiocese of New York court rejected as speculative the argument that “any possible accommodation . . . provide[d] pursuant to the ANPRM will be inadequate,” reasoning that “it is uncertain what form” the forthcoming amendment will take. 2012 WL 6042864, at *15 n.9. See also Univ. of Notre Dame, No. 3:12-cv-0523, at 8 (“Taking defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require [plaintiff] to conduct itself in ways [its religious] mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated.”). As stated previously, the ANPRM “presents questions and ideas” about how best to accommodate nonprofit organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 16501, 16503. If CCU is unsatisfied with the amendment, after it takes shape and is finalized, CCU may file suit again. See Sierra Club, 523 U.S. at 734 (finding claim unripe where plaintiff will have “opportunity later to bring its legal challenge at a time when harm is more imminent and more certain”). In the meantime, however, the Court declines CCU’s implicit invitation to issue an advisory opinion on the potential solutions Defendants might propose as it proceeds to further amend the interim final rule. See Laird v. Tatum, 408 U.S. 1, 14 (1972)
15

(“the federal courts established pursuant to Article III of the Constitution do not render advisory opinions” (quotation marks and citation omitted)).
The Court reaches this conclusion notwithstanding Colorado Christian’s argument that “Defendants cannot reasonably dispute that the new “Final Rule” is truly final for purposes of ripeness.” (Doc. # 34 at 10–11 (emphasis in original).) Colorado Christian bases this argument on its assertion that “[o]n February 10, 2012, following an interim final rule, an amended interim final rule, and extensive public comments, Defendants issued a final regulation emphasizing that the [preventative care coverage] Mandate was being ‘adopted as a final rule without change.’” (Id. at 10 (quoting 77 Fed. Reg. 8725, 8730).) The flaw in CCU’s reasoning is that Defendants did not finalize the preventative care coverage mandate at that time or at any other time since then.9 Instead, as the Federal Regulation CCU cites makes clear, Defendants only finalized the religious employer exemption as an amendment to the interim final rule. See 77 Fed. Reg. 8725, 8730 (“the amendment to the interim final rule . . . is adopted as a final rule without change”). To illustrate the finality of an agency’s action by simply emphasizing the word “final,” as CCU does here, elevates form over substance and fails to account for the considerations outlined above. See, e.g., Colorado Envtl. Coal., 803 F. Supp. at 369 (listing criteria used for determining whether an administrative regulation is final). The Court agrees with Defendants that doing so also “ignores the
9 This same flaw exists in the Roman Catholic Archdiocese of New York order, which cites the regulation relied on by CCU to support its assertion that “[t]he Coverage Mandate is a final rule.” 2012 WL 6042864, at *16.
16

reality of the regulatory landscape” in which they operate. (See Doc. # 75 at 7.) Therefore, the Court is unpersuaded by CCU’s characterization of the current rulemaking process as entailing “the possibility of unforeseen amendments.” (Doc. # 34 at 8 (quotation marks and citation omitted).) Indeed, the process of further amending the interim final rule has already begun and, until it is complete, the Court cannot rule on CCU’s claims.
Colorado Christian’s argument – that its “challenge to the Mandate raises questions of law independent of any context specific facts” (Doc. # 34 at 11) – does not persuade the Court to reach another conclusion. To begin with, the Court questions CCU’s assertion in light of the discovery which has occurred in this case at CCU’s request. Also, despite Defendants’ agreement that CCU’s claims “are largely legal” (Doc. # 36 at 7), determining the merits of CCU’s claims would still require the Court to make findings of fact, see, e.g., United States v. Wilgus, 638 F.3d 1274, 1284 (10th Cir. 2011) (noting that, although “both prongs of RFRA’s strict scrutiny test are legal questions,” findings on constitutional and “basic historical” facts “may be embedded in a district court’s . . . conclusion” (quotation marks and citations omitted)). Further, the Court cannot make any findings until the pending amendment to the interim final rule is completed. Until then, the Court’s review could encompass, at most, the current amended interim final rule, which would be highly inefficient since it will be altered again soon. For this reason, the Court agrees with the Zubik court’s conclusion that “a declaratory judgment would be of remarkably little utility at this stage.” 2012 WL
17

5932977, at *9. See also Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244 (1952) (to be ripe, a disagreement between parties “must have taken on fixed and final shape so that a court can see what legal issues it is deciding”); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“The interest in postponing review is powerful when the agency position is tentative. Judicial review at that stage improperly intrudes into the agency’s decisionmaking process . . . and squanders judicial resources since the challenging party still enjoys an opportunity to convince the agency to change its mind.” (citations omitted)). In any event, even if the Court were to agree with CCU’s assertion that the issues presented here are simply “questions of law independent of any context specific facts,” the Court still could not opine on whether the challenged regulations meet constitutional muster, because “[i]t is not the role of federal courts to resolve abstract issues of law.” Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1376 (10th Cir. 2011). Absent a final amendment against which the Court would judge CCU’s claims, the legal issues in this case remain too abstract to resolve.
The Court does not read the D.C. Circuit Court of Appeals’ recent decision as leading to a contrary determination. Indeed, that court held the cases before it were “not fit for review at this time.” Wheaton Coll., No. 12-5273, at 2. The court based its reasoning on Defendants’ representations to the court that they: (1) will never enforce the current amended interim final rule against non-profit religious organizations (like CCU); (2) will develop a new rule for such organizations; and (3) will finalize the new rule before August 2013. Id. Defendants have made those same, or at least sufficiently
18

similar, representations in the instant case. (See Doc. # 75 at 2–3 & n.3 (referencing the “government’s clear, repeated, and ongoing statements that the challenged regulations will never be enforced by defendants against the [non-profit religious organization] plaintiffs in their current form”); Doc. # 31 at 15 (explaining that Defendants are working to “finalize[] amendments to the challenged regulations to accommodate religious objections to providing contraceptive coverage”); id. at 3 (by “August 2013 . . . defendants will have finalized amendments to the challenged regulations to accommodate the religious objections of religious organizations like plaintiff”).)
Thus, the Court reaches the same conclusion as the D.C. Circuit Court of Appeals – and the overwhelming majority of the district courts that have ruled on this issue – i.e., the case currently pending is not fit for review at this time. Although the D.C. Circuit held the cases before it in abeyance, as opposed to dismissing them, it offered no compelling reason for doing so, nor is any such reason apparent to the Court. Thus, the Court declines to exercise its discretion to hold this case in abeyance and, instead, adheres to the customary practice of dismissing an unripe case in its entirety. Cf. 15 James WM. Moore et al., Moore’s Federal Practice § 108.81 (3d ed. 2011) (“if a necessary component of jurisdiction, such as ripeness, is found to be lacking, the court has no choice but to dismiss the action”).
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2. Hardship to the Parties Colorado Christian next asserts that “even if fitness were in question, the hardships CCU faces from delay weigh decisively in favor of immediate judicial review.” (Doc. # 34 at 14.) The Court disagrees. First, the Court concurs with Defendants that CCU’s present planning for future eventualities “do[es] not demonstrate a ‘direct and immediate’ effect on plaintiff’s ‘dayto-day business’ with ‘serious penalties attached to noncompliance,’ as required to establish hardship.” (Doc. # 36 at 9 (quoting Abbott Labs., 387 U.S. at 152–53).) As previously mentioned, the temporary safe harbor currently protects CCU from enforcement actions by Defendants. Moreover, CCU’s planning stems from its ongoing speculation that Defendants will fail to amend the interim final rule in a satisfactory manner. However, such speculation, regardless of the costs it entails, is insufficient to constitute a hardship that would outweigh the Court’s determination on the fitness of the issues presented10 – especially because Defendants’ stated intent is to amend the interim final rule so as to accommodate the concerns CCU raises here. See Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987) (“Mere economic uncertainty affecting the plaintiff’s planning is not sufficient to support premature review.”); Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (“planning insecurity” insufficient to establish hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162
10 Colorado Christian fails to convince the Court that any remedy the Court could offer would ameliorate its planning insecurities, as the content of the forthcoming amendment to the interim final rule can, at this point in time, only be guessed at.
20

(7th Cir. 1976) (“claims of uncertainty in [plaintiff’s] business and capital planning are not sufficient to warrant our review of an ongoing administrative process”).
Second, the Court is unpersuaded by CCU’s argument that it is suffering a current hardship because it may be subjected to “third-party enforcement actions.” (Doc. # 34 at 14.) Although CCU is correct that the ACA “creates avenues by which private parties may seek to enforce the Mandate, regardless of Defendants’ safe harbor” (id.), CCU does not allege that any third-parties have brought enforcement actions against it or that the regulatory landscape is such that a credible threat of prosecution by a third party currently exists. Thus, this hardship is, at present, purely theoretical and would potentially affect CCU only if the issues it raises were to become fit for review. See Salvation Army v. Dep’t of Cmty. Affairs of New Jersey, 919 F.2d 183, 193 (3d Cir. 1990) (stating that “the theoretical possibility of a suit against [plaintiff] by a program beneficiary” is insufficient to establish jurisdiction). Even the D.C. Circuit in its recent order acknowledged that exposure to liability from “claims brought by employees and other beneficiaries” was insufficient to alter the court’s opinion that the cases before it should be held in abeyance because the issues they presented were not fit for review. Wheaton Coll., No. 12-5273, at 2–3. Finally, the Court agrees with Defendants that “if a third-party were to sue [CCU] in the future for failure to provide contraception coverage, [CCU] would be able to raise all the claims it asserts here as a defense to that action.” (Doc. # 36 at 10 (citing 42 U.S.C. § 2000bb-1(c)).)
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B. STANDING

Defendants also assert that CCU lacks standing to bring this case. Because the

Court has found that CCU’s dispute is not ripe for review, the Court declines to address

Defendants’ standing arguments. See Sierra Club, 523 U.S. at 732; Utah v. U.S. Dep’t

of the Interior, 210 F.3d 1193, 1196 & n.2 (10th Cir. 2000); Biloxi, No. 1:12-cv-00158, at

12 (“Because . . . the Court finds that this case is not ripe for adjudication, it need not

resolve the question of Plaintiffs’ standing at this time. Even if Plaintiffs possessed

standing to maintain this suit, the Court would nevertheless lack subject matter

jurisdiction because this matter is not ripe for review.”).

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that Defendants’ Rule 12(b)(1) Motion

to Dismiss (Doc. # 31) is GRANTED. It is

FURTHER ORDERED that CCU’s Motion to Compel Discovery Responses (Doc.

# 63) and the parties’ Joint Motion for Extension of Case Management Deadlines (Doc.

# 78) are DENIED AS MOOT. Finally, it is

FURTHER ORDERED that this case is DISMISSED WITHOUT PREJUDICE,

in its entirety, for lack of jurisdiction.

DATED: January 07 , 2013

BY THE COURT:

_______________________________ CHRISTINE M. ARGUELLO United States District Judge

22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03350-CMA-BNB COLORADO CHRISTIAN UNIVERSITY
Plaintiff, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
FINAL JUDGMENT
In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Final Judgment is hereby entered.
Pursuant to the Order Granting Defendants’ Motion to Dismiss for Lack of Jursisdiction of Judge Christine M. Arguello entered on January 7, 2013 it is
ORDERED that Defendants’ Rule 12(b)(1) Motion to Dismiss (Doc. # 31) is GRANTED. It is
FURTHER ORDERED that this case is DISMISSED WITHOUT PREJUDICE, in its entirety, for lack of jurisdiction.
DATED at Denver, Colorado this 8th day of January, 2013.
FOR THE COURT: JEFFREY P. COLWELL CLERK
By: s/ Sandra Hartmann Sandra Hartmann Deputy Clerk

 
 Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 1 of 8
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:11−cv−03350−CMA−BNB

Colorado Christian University v. Sebelius et al Assigned to: Judge Christine M. Arguello Referred to: Magistrate Judge Boyd N. Boland Cause: 42:2000bb Religious Freedom Restoration Act.
Plaintiff

Date Filed: 12/22/2011 Date Terminated: 01/08/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Colorado Christian University

represented by Eric Christopher Rassbach Becket Fund for Religious Liberty 3000 South K Street, N.W. #220 Washington, DC 20007 202−955−0095 Fax: 202−955−0090 Email: erassbach@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Shawn Baxter Becket Fund for Religious Liberty 3000 South K Street, N.W. #220 Washington, DC 20007 202−955−0095 Fax: 202−955−0090 Email: ebaxter@becketfund.org ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius Secretary of the United States Department of Health and Human Services
Defendant United States Department of Health and Human Services
Defendant Hilda Solis Secretary of the United States Department of Labor Defendant United States Department of Labor

represented by Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs 20 Massachusetts Avenue N.W. Washington, DC 20008 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 2 of 8

Defendant
Timothy Geithner Secretary of the United States Department of the Treasury
Defendant
United States Department of the Treasury

represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/22/2011
12/22/2011 12/22/2011 12/27/2011
01/06/2012 01/06/2012 01/13/2012 01/13/2012 01/13/2012 01/13/2012 01/13/2012 01/13/2012

# Docket Text
1 COMPLAINT against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 350, Receipt Number 44131) Summons Not Issued, filed by Colorado Christian University. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(lyg, ) Modified on 12/23/2011 to indicate summons did not issue (lyg, ). (Entered: 12/23/2011)
2 (CORPORATE) DISCLOSURE STATEMENT, by Plaintiff Colorado Christian University. (lyg, ) (Entered: 12/23/2011)
3 NOTICE OF Related Cases, by Plaintiff Colorado Christian University. (lyg, ) (Entered: 12/23/2011)
4 ORDER REFERRING CASE to Magistrate Judge Boyd N. Boland. Magistrate Judge Boland is designated to conduct NDISPO proceedings pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). ALSO ORDERED that unless service has otherwise been completed or arranged, [Plaintiffs counsel is directed to effect service of the summons and complaint pursuant to Rule 4 of the Federal Rules of Civil Procedure no later than 1/27/12 in order for the initial scheduling conference to be held promptly. The parties should expect to be given a firm trial setting that is 60 to 120 days from the date of the final pretrial conference, and should be available for trial accordingly. SO ORDERED by Judge Christine M. Arguello on 12/27/11. Text Only Entry (cmacd ) (Entered: 12/27/2011)
5 ORDER Scheduling Conference set for 2/29/2012 at 02:00 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. By Magistrate Judge Boyd N. Boland on 1/6/12. (cmacd ) Modified on 1/9/2012 to fix hearing date(cmacd ). (Entered: 01/06/2012)
6 Utility Setting/Resetting Deadlines/Hearings: Text Only Entry Scheduling Conference set for 2/29/2012 at 02:00 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. See Doc. 5. (cmacd) (Entered: 01/09/2012)
7 SUMMONS Returned Executed upon defendant(s) Kathleen Sebelius served on 1/3/2012, answer due 3/5/2012. (Rassbach, Eric) (Entered: 01/13/2012)
8 SUMMONS Returned Executed upon defendant(s) United States Department of Health and Human Services served on 1/3/2012, answer due 3/5/2012. (Rassbach, Eric) (Entered: 01/13/2012)
9 SUMMONS Returned Executed upon defendant(s) Hilda Solis served on 12/30/2011, answer due 2/28/2012. (Rassbach, Eric) (Entered: 01/13/2012)
10 SUMMONS Returned Executed upon defendant(s) United States Department of Labor served on 12/30/2011, answer due 2/28/2012. (Rassbach, Eric) (Entered: 01/13/2012)
11 SUMMONS Returned Executed upon defendant(s) Timothy Geithner served on 12/30/2011, answer due 2/28/2012. (Rassbach, Eric) (Entered: 01/13/2012)
12 SUMMONS Returned Executed upon defendant(s) United States Department of the Treasury served on 12/30/2011, answer due 2/28/2012. (Rassbach, Eric)

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01/13/2012 01/13/2012 01/13/2012 02/06/2012
02/06/2012
02/07/2012 02/07/2012
02/09/2012 02/22/2012 02/27/2012 02/29/2012
02/29/2012 03/13/2012

(Entered: 01/13/2012)
13 AFFIDAVIT/RETURN of Service of Copies of summonses, complaint, disclosure statement, and notice of related cases upon Civil Process Clerk, U.S. Attorneys Office on 12/29/2011, filed by Plaintiff Colorado Christian University (Rassbach, Eric) (Entered: 01/13/2012)
14 AFFIDAVIT/RETURN of Service of Copies of summonses, complaint, disclosure statement, and notice of related cases upon U.S. Attorney General on 1/3/2012, filed by Plaintiff Colorado Christian University (Rassbach, Eric) (Entered: 01/13/2012)
15 CERTIFICATE OF SERVICE re 5 Order by Plaintiff Colorado Christian University (Rassbach, Eric) (Entered: 01/13/2012)
16 MOTION to Reset (Postpone) Rule 16(b) Scheduling Conference and Related Deadlines by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/06/2012)
17 MEMORANDUM regarding 16 MOTION to Reset (Postpone) Rule 16(b) Scheduling Conference and Related Deadlines filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. Motion referred to Magistrate Judge Boyd N. Boland by Judge Christine M. Arguello on 02/06/12. Text Only Entry (cmasec) (Entered: 02/06/2012)
18 BRIEF in Opposition to 16 MOTION to Reset (Postpone) Rule 16(b) Scheduling Conference and Related Deadlines filed by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 02/07/2012)
19 REPLY to Response to 16 MOTION to Reset (Postpone) Rule 16(b) Scheduling Conference and Related Deadlines filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/07/2012)
20 ORDER denying 16 Motion to Postpone Rule 16(b) Conference and Related Deadlines by Magistrate Judge Boyd N. Boland on 2/9/2012.(jjpsl, ) (Entered: 02/10/2012)
21 Proposed Scheduling Order (Joint) by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 02/22/2012)
22 MOTION to Dismiss for Lack of Jurisdiction by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/27/2012)
23 MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Scheduling Conference held on 2/29/2012. Discovery due by 10/31/2012. Dispositive Motions due by 11/30/2012. Proposed Pretrial Order due by 1/10/2013. Final Pretrial Conference set for 1/17/2013 10:00 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. (FTR: G.Mattei) (bnbcd, ) (Entered: 02/29/2012)
24 SCHEDULING ORDER: by Magistrate Judge Boyd N. Boland on 2/29/12. (bnbcd, ) (Entered: 02/29/2012)
25 OBJECTION/Appeal of Magistrate Judge Decision to District Court (Magistrate Judge's February 29, 2012 Order Denying A Stay Of Discovery) by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 03/13/2012)

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 4 of 8

03/22/2012 03/22/2012 03/23/2012

26 AMENDED COMPLAINT against All Defendants, filed by Colorado Christian University.(Baxter, Eric) (Entered: 03/22/2012)
27 BRIEF in Opposition to 22 MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 03/22/2012)
28 TRANSCRIPT of Scheduling Conference held on 02/29/2012 before Magistrate Judge Boland. Pages: 1−13.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

03/26/2012 04/09/2012
04/09/2012
04/11/2012
04/30/2012 05/03/2012 05/07/2012 05/18/2012
05/29/2012

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 6/25/2012. (Avery Woods Reporting, ) (Entered: 03/23/2012)
29 RESPONSE to 25 Objection/Appeal of Magistrate Judge Decision filed by Plaintiff Colorado Christian University. (Attachments: # 1 Exhibit)(Baxter, Eric) (Entered: 03/26/2012)
30 REPLY to Response to 25 Objection/Appeal of Magistrate Judge Decision to District Court, filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 04/09/2012)
31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 04/09/2012)
32 COURTROOM MINUTES/MINUTE ORDER for proceedings held before Magistrate Judge Michael E. Hegarty: Scheduling Conference held on 4/11/2012. Final Pretrial Conference set for 1/15/2013 09:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (FTR: C. Coomes −− Courtroom A−501) (mehcd) DOCUMENT INCORRECTLY FILED IN THIS CASE. Modified on 4/11/2012 to include text (jjpsl, ). (Entered: 04/11/2012)
33 ORDER denying 25 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Judge Christine M. Arguello on 4/30/12.(cmacd ) (Entered: 04/30/2012)
34 BRIEF in Opposition to 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint filed by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 05/03/2012)
35 ORDER denying as moot 22 Motion to Dismiss for Lack of Jurisdiction by the filing of the Amended Complaint 26 . By Judge Christine M. Arguello on 5/7/12. Text Only Entry(cmacd ) (Entered: 05/07/2012)
36 REPLY to Response to 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/18/2012)
37 NOTICE of Filing the Administrative Record by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Attachment A: Certification, # 2 Attachment B: Index)(Bennett, Michelle) (Entered: 05/29/2012)

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 5 of 8

05/30/2012 07/22/2012
07/25/2012 08/02/2012 08/03/2012
08/06/2012 08/06/2012 08/07/2012
08/07/2012 08/07/2012 08/10/2012 08/14/2012

38 Certification of the Rulemaking Record and ADMINISTRATIVE RECORD − consisting of 3 cds (Available in other format at the Clerk's Office) by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (pabcd) (Entered: 05/30/2012)
39 NOTICE of Supplemental Authorities re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Nebraska Opinion, # 2 Belmont Abbey Opinion)(Bennett, Michelle) (Entered: 07/22/2012)
40 RESPONSE to 39 Notice of Supplemental Authorities, by Plaintiff Colorado Christian University. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Baxter, Eric) (Entered: 07/25/2012)
41 Renewed MOTION to Stay Discovery by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bennett, Michelle) (Entered: 08/02/2012)
42 MEMORANDUM regarding 41 Renewed MOTION to Stay Discovery filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. Motion referred to Magistrate Judge Boyd N. Boland by Judge Christine M. Arguello on 08/03/12. Text Only Entry (cmasec) (Entered: 08/03/2012)
43 Minute ORDER: 41 Defendants' Renewed Motion to Stay Discovery is DENIED. by Magistrate Judge Boyd N. Boland on 8/6/12.(bnbcd, ) Modified on 8/7/2012 to correct title (dkals, ). (Entered: 08/06/2012)
44 Renewed MOTION to Stay Discovery by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bennett, Michelle) (Entered: 08/06/2012)
45 MEMORANDUM regarding 44 Renewed MOTION to Stay Discovery filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. Motion referred to Magistrate Judge Boyd N. Boland by Judge Christine M. Arguello on 08/07/12. Text Only Entry (cmasec) (Entered: 08/07/2012)
46 NOTICE of Supplemental Authorities by Plaintiff Colorado Christian University (Attachments: # 1 Exhibit A)(Baxter, Eric) (Entered: 08/07/2012)
47 Minute ORDER re 44 Renewed Motion to Stay Discovery : Motion Hearing set for 8/30/2012 01:30 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. Plaintiff shall respond to Motion 44 on or before 8/27/12. by Magistrate Judge Boyd N. Boland on 8/7/12. (bnbcd, ) Modified on 8/8/2012 to correct title (dkals, ). (Entered: 08/07/2012)
48 RESPONSE to 46 Notice of Supplemental Authorities by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/10/2012)
49 Unopposed MOTION for Extension of Time to (Extension of Deadlines Regarding Discovery and Dispositive Motions) by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/14/2012)

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 6 of 8

08/14/2012
08/20/2012 08/21/2012 08/24/2012 08/27/2012
08/27/2012 08/27/2012 08/28/2012 08/31/2012
08/31/2012 08/31/2012 09/07/2012 09/14/2012

50 MEMORANDUM regarding 49 Unopposed MOTION for Extension of Time to (Extension of Deadlines Regarding Discovery and Dispositive Motions) filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. Motion referred to Magistrate Judge Boyd N. Boland. By Judge Christine M. Arguello on 8/14/2012. Text Only Entry (cmacd, ) (Entered: 08/14/2012)
51 Unopposed MOTION for Leave to Appear by Telephone at the August 30, 2012 Hearing 47 Order Setting Hearing on Motion, by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/20/2012)
52 NOTICE of Supplemental Authorities (Second) by Plaintiff Colorado Christian University (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Baxter, Eric) (Entered: 08/21/2012)
53 MINUTE ORDER denying 51 Motion for Leave to appear telephonically. All counsel must appear in person for the hearing set for August 30, 2012, at 1:30 p.m., by Magistrate Judge Boyd N. Boland on 8/24/12. Text Only Entry (bnbsec, ) (Entered: 08/24/2012)
54 NOTICE of Supplemental Authorities re: 44 Renewed MOTION to Stay Discovery, 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Wheaton College Decision)(Bennett, Michelle) (Entered: 08/27/2012)
55 RESPONSE to 52 Notice of Supplemental Authorities by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/27/2012)
56 BRIEF in Opposition to 44 Renewed MOTION to Stay Discovery filed by Plaintiff Colorado Christian University. (Attachments: # 1 Exhibit)(Baxter, Eric) (Entered: 08/27/2012)
57 MINUTE ORDER: Motion Hearing re: 44 Defendants Renewed Motion to Stay Discovery reset for 8/31/2012 01:30 PM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. By Magistrate Judge Boyd N. Boland on 8/28/12. (dkals, ) (Entered: 08/28/2012)
58 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Motion Hearing held on 8/31/2012. 44 Renewed Motion to Stay Discovery is DENIED. 49 Unopposed Motion for Extension Deadlines is GRANTED. Discovery due by 1/1/2013, Dispositive Motions due by 2/1/2013. FTR: BNB Courtroom A401. (bnbcd, ) Modified on 9/4/2012 to correct deadline (dkals, ). (Main Document 58 replaced on 9/7/2012 to show correct date of Discovery Deadline 1/2/13 as originally indicated and stated on the record) (bnbcd, ). (Entered: 08/31/2012)
59 ORDER: by Magistrate Judge Boyd N. Boland on 8/31/12. (bnbcd, ) (Entered: 08/31/2012)
60 Utility Setting/Resetting Deadlines/Hearings: Text Only Entry Discovery due by 1/1/2013 pursuant to 58 Minute Entry. (dkals, ) (Entered: 09/05/2012)
61 RESPONSE to 54 Notice of Supplemental Authorities, by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 09/07/2012)
62 TRANSCRIPT of Telephonic Motions Hearing held on 08/31/2012 before Magistrate Judge Boland. Pages: 1−20.

NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 7 of 8

11/09/2012 11/13/2012
11/13/2012 11/14/2012 11/26/2012
11/27/2012 11/27/2012 11/28/2012
11/29/2012
11/29/2012

transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.
Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 12/17/2012. (Avery Woods Reporting, ) (Entered: 09/14/2012)
63 MOTION to Compel by Plaintiff Colorado Christian University. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M)(Baxter, Eric) (Entered: 11/09/2012)
64 NOTICE of Supplemental Authorities re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Exhibit A − Legatus Opinion)(Bennett, Michelle) (Entered: 11/13/2012)
65 MEMORANDUM regarding 63 MOTION to Compel filed by Colorado Christian University. Motion referred to Magistrate Judge Boyd N. Boland by Judge Christine M. Arguello on 11/13/12. Text Only Entry (cmasec) (Entered: 11/13/2012)
66 MINUTE ORDER Setting Hearing on Motion: 63 MOTION to Compel Discovery Responses set for 11/30/2012 08:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. Defendant shall respond to the motion on or before 11/28/12, no reply without leave of the Court. by Magistrate Judge Boyd N. Boland on 11/14/12. (bnbcd, ) (Entered: 11/14/2012)
67 NOTICE of Supplemental Authorities re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Catholic Diocese of Nashville Opinion)(Bennett, Michelle) (Entered: 11/26/2012)
68 NOTICE of Supplemental Authorities re: 34 Brief in Opposition to Motion by Plaintiff Colorado Christian University (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Baxter, Eric) (Entered: 11/27/2012)
69 RESPONSE to 67 Notice of Supplemental Authorities, by Plaintiff Colorado Christian University. (Baxter, Eric) (Entered: 11/27/2012)
70 BRIEF in Opposition to 63 MOTION to Compel filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Declaration of Glenn J. Melcher, # 2 Declaration of Andrew B. Stein, # 3 Declaration of James L. Craig, Jr.)(Bennett, Michelle) (Entered: 11/28/2012)
71 NOTICE of Supplemental Authorities (Fifth) re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Zubik Opinion)(Bennett, Michelle) (Entered: 11/29/2012)
72 RESPONSE to 68 Notice of Supplemental Authorities by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/29/2012)

Case: 1:11-cv-3350 As of: 03/02/2013 11:25 AM MST 8 of 8

11/30/2012 12/06/2012 12/10/2012 12/20/2012 12/21/2012
12/27/2012 01/03/2013
01/04/2013
01/07/2013
01/08/2013

73 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Boyd N. Boland: Motion Hearing held on 11/30/2012. 63 Motion to Compel Discovery Responses is TAKEN UNDER ADVISEMENT. FTR: BNB Courtroom A401. (bnbcd, ) (Entered: 11/30/2012)
74 NOTICE of Supplemental Authorities by Plaintiff Colorado Christian University (Attachments: # 1 Exhibit A)(Baxter, Eric) (Entered: 12/06/2012)
75 RESPONSE to 74 Notice of Supplemental Authorities by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/10/2012)
76 NOTICE of Supplemental Authorities by Plaintiff Colorado Christian University (Baxter, Eric) (Entered: 12/20/2012)
77 NOTICE of Supplemental Authorities (Sixth) and Response to Plaintiff's Fifth Notice of Supplemental Authority (ECF No. 76) re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 D.C. Circuit's Wheaton Decision, # 2 Biloxi Decision)(Bennett, Michelle) (Entered: 12/21/2012)
78 Joint MOTION for Extension of Time to Case Management Deadlines by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/27/2012)
79 MEMORANDUM regarding 78 Joint MOTION for Extension of Time to Case Management Deadlines filed by Kathleen Sebelius, Hilda Solis, Timothy Geithner, United States Department of Health and Human Services, United States Department of the Treasury, United States Department of Labor. Motion referred to Magistrate Judge Boyd N. Boland by Judge Christine M. Arguello on 01/03/13. Text Only Entry (cmasec) (Entered: 01/03/2013)
80 NOTICE of Supplemental Authorities (Seventh) re: 31 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 University of Notre Dame Decision)(Bennett, Michelle) (Entered: 01/04/2013)
81 ORDER granting 31 Defendants' Rule 12(b)(1) Motion to Dismiss. CCU's 63 Motion to Compel Discovery Responses and the parties' 78 Joint Motion for Extension of Case Management Deadlines are denied as moot. This case is dismissed without prejudice, in its entirety, for lack of jurisdiction. By Judge Christine M. Arguello on 1/7/13.(mnfsl, ) Modified on 1/8/2013 to correct filed date (mnfsl, ). (Entered: 01/08/2013)
82 FINAL JUDGMENT by Clerk, re: 81 Order. By Clerk on 1/8/13. (mnfsl, ) (Entered: 01/08/2013)