Joint Appendix, Wheaton College v. Sebelius

Nos.
12-5273 & 12-5291
In the United States Court of Appeals

for the District of Columbia Circuit
WHEATON COLLEGE and BELMONT ABBEY COLLEGE,
Appellants,
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,
Appellees.
On Appeal from the United States District Court
for the District of Columbia
JOINT APPENDIX
S. Kyle Duncan
Mark L. Rienzi
Eric S. Baxter
Eric N. Kniffin
THE BECKET FUND
FOR RELIGIOUS LIBERTY
3000 K Street, N.W., Suite 220
Washington, D.C. 20007
(202) 349-7209
kduncan@becketfund.org
Attorneys for Appellants
Dated: October 5, 2012
Adam C. Jed
Alisa B. Klein
Mark B. Stern
UNITED STATES
DEPARTMENT OF JUSTICE
Civil Division, Appellate Staff
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
(202) 514-2000
adam.c.jed@usdoj.gov
Attorneys for Appellees
TABLE OF CONTENTS
Belmont Abbey College v. Sebelius, 12-5921
Date
Dkt.
Document
Page
Proceedings before Amended Motion to Dismiss

--
--
Docket Sheets. .........................................................................1
11/10/11 1
Complaint ................................................................................8
3/20/12 22
Amended Complaint ............................................................ 34
Proceedings on Amended Motion to Dismiss

7/18/12 28
Order Granting Defendants Motion To Dismiss ............... 63
7/18/12 29
Memorandum Opinion Regarding Order Granting

Defendants Motion To Dismiss .......................................... 64
Proceedings on Motion for Reconsideration

8/7/12
30
Declaration of Eric N. Kniffin and Attached Exhibits ....... 88
8/31/12 35-1
Declaration of Mark Rienzi ............................................... 106
9/5/12
36
Memorandum Opinion and Order denying Motion for

Reconsideration .................................................................. 108
9/14/12 37
Notice of Appeal ................................................................. 114
Proceedings on Motion for Expedited Review

9/17/12 DC Cir. Declaration of William K. Thierfelder .............................. 117
Wheaton College v. Sebelius, 12-5273

Date
Dkt.
Document
Page
Proceedings before Motion for Preliminary Injunction and Motion to

Dismiss
--
--
Docket Sheets ..................................................................... 124
7/18/12 1
Complaint ........................................................................... 130
Proceedings on Motion for Preliminary Injunction or Motion to

Dismiss
8/1/12
4-4
Declaration of Philip Ryken .............................................. 162
8/1/12
4-5
Declaration of Stanton Jones ............................................ 176
8/1/12
4-6
Declaration of Heidi Daniels ............................................. 179
8/1/12
4-7
Declaration of Linda Cotten .............................................. 182
8/1/12
4-8
Declaration of Tony Dawson ............................................. 184
8/1/12
17-2
Declaration of Michael Hash ............................................. 187
8/1/12
18-1
Declaration of Mark Rienzi ............................................... 191
8/20/12 19-1
[Revised] Guidance on the Temporary Enforcement

Safe Harbor (Aug. 15, 2012) .............................................. 193
8/23/12 --
Transcript of Oral Argument on Defendants Motion

To Dismiss .......................................................................... 200
8/24/12 20
Memorandum Opinion Regarding Defendants Motion

To Dismiss .......................................................................... 246
8/24/12 21
Order Granting Defendants Motion To Dismiss,

Denying as Moot Plaintiffs Motion for Preliminary
Injunction ........................................................................... 264
8/29/12 23
Notice of Appeal ................................................................. 265
ii
Proceedings on Motion for Expedited Review

8/31/12 DC Cir. Declaration of Dale Kemp ................................................. 268
iii
District of Columbia live database
1 of 7
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?690010306880044-L_1_0-1
APPEAL,CLOSED,TYPE-L
U.S. District Court

District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:11-cv-01989-JEB
BELMONT ABBEY COLLEGE v. SEBELIUS et al

Assigned to: Judge James E. Boasberg
Cause: 05:0706 Judicial Review of Agency Actions
Date Filed: 11/10/2011

Date Terminated: 07/19/2012
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government Defendant
Plaintiff
BELMONT ABBEY COLLEGE
represented by Mark L. Rienzi

THE BECKET FUND FOR RELIGIOUS
LIBERTY
3000 K Street, NW
Suite 220
Washington, DC 20007
(202) 507-0834
Email: mrienzi@becketfund.org
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Eric Nieuwenhuis Kniffin
THE BECKET FUND
3000 K Street, NW
Suite 220
(202) 349-7210
Email: ekniffin@becketfund.org
Eric Christopher Rassbach
LIBERTY
3000 K Street, NW
Suite 220
(202) 349-7214
Email: erassbach@becketfund.org
Shannen W. Coffin
STEPTOE & JOHNSON LLP
JA 1
9/24/2012 11:24 AM
2 of 7
1330 Connecticut Avenue, NW

Washington, DC 20036-1795
(202) 429-6255
Fax: (202) 429-3902
Email: scoffin@steptoe.com
TERMINATED: 03/16/2012
V.
Defendant
KATHLEEN SEBELIUS
Secretary of the United States Department
of Health and Human Services
represented by Michelle Renee Bennett

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
(202) 305-8902
Email: michelle.bennett@usdoj.gov
LEAD ATTORNEY
Defendant
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES

(See above for address)
LEAD ATTORNEY
Defendant
HILDA SOLIS
of Labor

LEAD ATTORNEY
Defendant
LABOR

LEAD ATTORNEY
Defendant
TIMOTHY GEITHNER
of the Treasury

LEAD ATTORNEY
Defendant
JA 2
9/24/2012 11:24 AM
3 of 7

THE TREASURY

LEAD ATTORNEY
Date Filed
11/10/2011
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 4616043664) filed by
BELMONT ABBEY COLLEGE. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered:
11/14/2011)
11/10/2011
Docket Text
SUMMONS (8) Issued as to 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, U.S. Attorney and U.S. Attorney General (dr)
(Entered: 11/14/2011)
01/03/2012
2 Case randomly reassigned to Judge James E. Boasberg. Judge Gladys Kessler no longer
assigned to the case. (ds) (Entered: 01/03/2012)
01/04/2012
3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United

States Attorney General. Date of Service Upon United States Attorney General
11/14/2011. (Rassbach, Eric) (Entered: 01/04/2012)
01/04/2012
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the

United States Attorney. Date of Service Upon United States Attorney on 11/14/2011.
Answer due for ALL FEDERAL DEFENDANTS by 1/13/2012. (Rassbach, Eric)
(Entered: 01/04/2012)
01/04/2012
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed.

KATHLEEN SEBELIUS served on 11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
01/04/2012
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED

STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on
11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
01/04/2012
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA

SOLIS served on 11/15/2011 (Rassbach, Eric) (Entered: 01/04/2012)
01/04/2012

STATES DEPARTMENT OF LABOR served on 11/15/2011 (Rassbach, Eric) (Entered:
01/04/2012)
01/04/2012

TIMOTHY GEITHNER served on 11/14/2011 (Rassbach, Eric) (Entered: 01/04/2012)
01/04/2012

STATES DEPARTMENT OF THE TREASURY served on 11/14/2011 (Rassbach, Eric)
JA 3
9/24/2012 11:24 AM
4 of 7
(Entered: 01/04/2012)
01/06/2012
11 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants

(Bennett, Michelle) (Entered: 01/06/2012)
01/06/2012
12 Unopposed MOTION for Extension of Time to Respond to the Complaint by

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 Text of Proposed Order)(Bennett, Michelle) (Entered:
01/06/2012)
01/06/2012
MINUTE ORDER granting Defendants' unopposed 12 Motion for Extension of Time to

Respond to the Complaint. The Court ORDERS that Defendants shall file a responsive
pleading or motion by January 31, 2012. Signed by Judge James E. Boasberg on
1/6/2012. (lcjeb2) (Entered: 01/06/2012)
01/09/2012
Set/Reset Deadlines: Defendants shall file a responsive pleading or motion by

1/31/2012. (ad) (Entered: 01/09/2012)
01/27/2012
13 MOTION for Extension of Time to Respond to the Complaint by TIMOTHY

GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES
TREASURY (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered:
01/27/2012)
01/27/2012
MINUTE ORDER granting 13 Motion for Extension of Time to Respond to the

Complaint. The Court ORDERS that Defendants shall file a responsive pleading or
motion by February 16, 2012. Signed by Judge James E. Boasberg on 1/27/2012.
(lcjeb2) (Entered: 01/27/2012)
01/27/2012
Set/Reset Deadlines: Defendants shall file a responsive pleading or motion by

2/16/2012. (ad) (Entered: 01/27/2012)
02/13/2012
14 NOTICE of Appearance by Eric Nieuwenhuis Kniffin on behalf of BELMONT

ABBEY COLLEGE (Kniffin, Eric) (Entered: 02/13/2012)
02/16/2012
15 MOTION to Dismiss for Lack of Jurisdiction by 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 Memorandum in
Support, # 2 Text of Proposed Order)(Bennett, Michelle) (Entered: 02/16/2012)
02/29/2012
16 NOTICE of Appearance by Shannen W. Coffin on behalf of All Plaintiffs (Coffin,

Shannen) (Entered: 02/29/2012)
03/02/2012
17 MOTION for Extension of Time to File Response/Reply as to 15 MOTION to Dismiss

for Lack of Jurisdiction by BELMONT ABBEY COLLEGE (Attachments: # 1 Text of
Proposed Order)(Rassbach, Eric) (Entered: 03/02/2012)
JA 4
9/24/2012 11:24 AM
5 of 7
03/02/2012
MINUTE ORDER granting 17 Plaintiff's Motion for an Extension of Time. Plaintiff's

Opposition shall now be due by March 19, 2012. Signed by Judge James E. Boasberg
on 3/2/2012. (lcjeb2) (Entered: 03/02/2012)
03/02/2012
Set/Reset Deadlines: Plaintiff's Opposition shall now be due by 3/19/2012. (ad)

(Entered: 03/02/2012)
03/16/2012
18 NOTICE OF WITHDRAWAL OF APPEARANCE as to BELMONT ABBEY

COLLEGE. Attorney Shannen W. Coffin terminated. (Coffin, Shannen) (Entered:
03/16/2012)
03/19/2012
19 NOTICE of Appearance by Mark L. Rienzi on behalf of BELMONT ABBEY

COLLEGE (Rienzi, Mark) (Entered: 03/19/2012)
03/19/2012
20 MOTION to Amend/Correct 1 Complaint, by BELMONT ABBEY COLLEGE

(Attachments: # 1 Exhibit Amended Complaint, # 2 Text of Proposed Order)(Rienzi,
Mark) (Entered: 03/19/2012)
03/19/2012
21 Memorandum in opposition to re 15 MOTION to Dismiss for Lack of Jurisdiction filed

by BELMONT ABBEY COLLEGE. (Attachments: # 1 Text of Proposed Order)
(Rienzi, Mark) (Entered: 03/19/2012)
03/20/2012
MINUTE ORDER granting 20 Plaintiff's Motion to Amend Complaint. The Amended

Complaint is deemed FILED, and Defendants' 15 Motion to Dismiss is DENIED
WITHOUT PREJUDICE as moot. Signed by Judge James E. Boasberg on 3/20/2012.
(lcjeb2) (Entered: 03/20/2012)
03/20/2012
22 AMENDED COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS,

DEPARTMENT OF THE TREASURY filed by BELMONT ABBEY COLLEGE.(td, )
Modified date filed on 3/20/2012 (td, ). (Entered: 03/20/2012)
04/05/2012
23 MOTION to Dismiss for Lack of Jurisdiction the First Amended Complaint by

TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES
TREASURY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)
04/23/2012
24 Memorandum in opposition to re 23 MOTION to Dismiss for Lack of Jurisdiction the

First Amended Complaint filed by BELMONT ABBEY COLLEGE. (Attachments: # 1
Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Text of Proposed
Order)(Rienzi, Mark) (Entered: 04/23/2012)
05/03/2012
25 REPLY to opposition to motion re 23 MOTION to Dismiss for Lack of Jurisdiction the

First Amended Complaint filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS,
DEPARTMENT OF THE TREASURY. (Bennett, Michelle) (Entered: 05/03/2012)
JA 5
9/24/2012 11:24 AM
6 of 7
06/22/2012
26 NOTICE OF SUPPLEMENTAL AUTHORITY by 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: 06/22/2012)
06/26/2012
27 RESPONSE re 26 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by BELMONT

ABBEY COLLEGE. (Rienzi, Mark) (Entered: 06/26/2012)
07/18/2012
28 ORDER granting Defendants' 23 Motion to Dismiss for Lack of Jurisdiction and

dismissing the case without prejudice. Signed by Judge James E. Boasberg on
7/18/2012. (lcjeb3) (Entered: 07/18/2012)
07/18/2012
29 MEMORANDUM OPINION regarding 28 Order granting Defendants' Motion to

Dismiss. Signed by Judge James E. Boasberg on 7/18/2012. (lcjeb3) (Entered:
07/18/2012)
07/23/2012
30 MOTION for Reconsideration re 29 Memorandum & Opinion by BELMONT ABBEY

COLLEGE (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, #
5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Rienzi, Mark)
(Entered: 07/23/2012)
08/07/2012
31 NOTICE OF SUPPLEMENTAL AUTHORITY by BELMONT ABBEY COLLEGE

(Attachments: # 1 Exhibit A)(Rienzi, Mark) (Entered: 08/07/2012)
08/09/2012
32 Memorandum in opposition to re 30 MOTION for Reconsideration re 29 Memorandum

& Opinion filed by 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: 08/09/2012)
08/16/2012
33 REPLY to opposition to motion re 30 MOTION for Reconsideration re 29

Memorandum & Opinion filed by BELMONT ABBEY COLLEGE. (Rienzi, Mark)
(Entered: 08/16/2012)
08/27/2012
34 NOTICE OF SUPPLEMENTAL AUTHORITY by 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)
08/31/2012
35 RESPONSE re 34 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by BELMONT

ABBEY COLLEGE. (Attachments: # 1 Declaration)(Rienzi, Mark) (Entered:
08/31/2012)
09/05/2012
36 MEMORANDUM OPINION and ORDER denying 30 Motion for Reconsideration.

Signed by Judge James E. Boasberg on 9/5/12. (lcjeb4) (Entered: 09/05/2012)
09/14/2012
37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 28 Order on Motion to

Dismiss/Lack of Jurisdiction, 36 Memorandum & Opinion by BELMONT ABBEY
COLLEGE. Filing fee $ 455, receipt number 0090-3068080. Fee Status: Fee Paid.
Parties have been notified. (Rienzi, Mark) (Entered: 09/14/2012)
JA 6
9/24/2012 11:24 AM
7 of 7
09/18/2012
38 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court
of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC
Circuit Court. (rdj) (Entered: 09/18/2012)
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JA 7
9/24/2012 11:24 AM
Case 1:11-cv-01989-JEB Document 1
Filed 11/10/11 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
BELMONT ABBEY COLLEGE

100 Belmont-Mt. Holly Rd.
Belmont, NC 28012;
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,
OF LABOR,
TIMOTHY GEITHNER, Secretary
the Treasury, and
OF THE TREASURY,
Defendants.
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CIVIL ACTION No.
COMPLAINT
JA 8
COMPLAINT
Comes now Plaintiff Belmont Abbey College, by and through its attorneys, and states as
follows:
NATURE OF THE ACTION
1. This is a challenge to regulations issued under the 2010 Affordable Care Act
(colloquially referred to as Obamacare) that force thousands of religious organizations to
violate their deepest religious beliefs.
2. Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs
forbid it from participating in, paying for, training others to engage in, or otherwise supporting
contraception, sterilization, or abortion. Belmont Abbey College 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 Belmont Abbey Colleges religious beliefs, and the beliefs
of millions of other Americans by forcing them to pay for contraception, sterilization, abortion,
and related education and counseling.
4. The governments Mandate unconstitutionally coerces Belmont Abbey College to violate
its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also
forces Belmont Abbey College 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 ones religion or controlling ones own speech is un-American,
unprecedented, and flagrantly unconstitutional.
JA 9
5. The governments 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 such as McDonalds, 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 employerto 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 Belmont Abbey Colleges right to freedom of
religion, as secured by the First Amendment of the United States Constitution and a civil rights
statute, the Religious Freedom Restoration Act (RFRA).
7. Defendants actions also violate Belmont Abbey Colleges 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 Belmont Abbey Colleges religious beliefs been obscure or unknown, the
governments 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 Belmont Abbey College and
millions of other Americans. The College seeks declaratory and injunctive relief to protect
against this attack.
JA 10
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
render declaratory and injunctive relief under 28 U.S.C. 2201 and 2202, and 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 Defendants are located in
this District.
IDENTIFICATION OF PARTIES
12. Plaintiff Belmont Abbey College is a private Benedictine Catholic College in Belmont,
North Carolina. Founded by an order of monks in 1876, Belmont Abbey finds its center in Jesus
Christ and seeks to provide an educational environment in which the principles of Holy Scripture
as taught by the Catholic Church are held up as an ideal.
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.
JA 11
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.
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 Colleges Religious Beliefs and Practices Related to Insurance for Contraception,
Sterilization, and Abortion.
20. Belmont Abbey College is a small liberal arts school located outside of Charlotte, North
Carolina. It was founded in 1876 by a congregation of Benedictine monks, who built the campus
with bricks they formed by hand from the red clay of the North Carolina soil.
21. Today, the monastery operates in the center of campus, and the monks of the Abbey
continue to live on the campus of the College and sponsor it. They provide significant financial
support for the College, and the Monks also serve on the Board of Trustees that governs the
College. The head of the monastery, Abbot Placid, serves as the Colleges Chancellor.
22. Faith is central to the educational mission of Belmont Abbey College. The College
describes itself as a Benedictine Catholic College that finds its center in Jesus Christ. Today, as
in years past and in the future, our college is inspired by St. Benedicts desire that in all things
God may be glorified. The College adheres to the Apostolic Constitution Ex Corde Ecclesiae
of Pope John Paul II, which is the relevant law of the Roman Catholic Church for Catholic
colleges and universities.
JA 12
23. Belmont Abbey Colleges purpose is expressed in its mission statement: Our mission is
to educate students in the liberal arts and sciences so that in all things God may be glorified. In
this endeavor, we are guided by the Catholic intellectual tradition and the Benedictine spirit of
prayer and learning. Exemplifying Benedictine hospitality, we welcome a diverse body of
students and provide them with an education that will enable them to lead lives of integrity, to
succeed professionally, to become responsible citizens, and to be a blessing to themselves and
others.
24. Belmont Abbey College holds religious beliefs that include traditional Christian
teachings on the sanctity of life. Belmont Abbey College believes and teaches that each human
being bears the image and likeness of God, and therefore that all human life is sacred and
precious, from the moment of conception. Belmont Abbey College therefore believes and
teaches that abortion ends a human life and is a grave sin.
25. Belmont Abbey Colleges religious beliefs also include traditional Christian teaching on
the nature and purpose of human sexuality. In particular, Belmont Abbey College believes, in
accordance with Pope Paul VIs 1968 encyclical, Humanae Vitae, that human sexuality has two
primary purposes: to most closely unit[e] husband and wife and for the generation of new
lives. Accordingly, the College believes, with the Catholic Church, that [t]o use this divine gift
destroying, even if only partially, its meaning and its purpose is to contradict the nature both of
man and of woman and of their most intimate relationship, and therefore it is to contradict also
the plan of God and His Will. Therefore, Belmont Abbey College believes and teaches that
any action which either before, at the moment of, or after sexual intercourse, is specifically
intended to prevent procreation, whether as an end or as a meansincluding contraception and
sterilizationis a grave sin.
JA 13
26. Belmont Abbey College has approximately 1700 students.

27. Belmont Abbey College has 200 full-time and 105 part-time employees.
28. As part of its commitment to Catholic education, in accordance with Catholic social
teaching, Belmont Abbey also promotes the well-being and health of its students and employees.
This includes provision of health services and health insurance for its students and employees.
29. Also as a part of this religious commitment, Belmont Abbey provides insurance policies
to its full-time faculty and staff, and to its undergraduate students.
30. As part of its religious commitment, Belmont Abbey ensures that its insurance policies do
not cover drugs, devices, services or procedures inconsistent with its faith. In particular, its
insurance plans do not cover sterilization, contraception, or abortion.
31. Belmont Abbey College cannot provide health care insurance covering artificial
contraception, sterilization, or abortion, or related education and counseling, without violating its
deeply held religious beliefs.
32. The College has maintained this stance despite complaints to the EEOC, an EEOC
investigation, and a potential lawsuit over the decision not to provide contraceptive coverage.
The College believes that any change would be in violation of its Christian faith.
33. Belmont Abbey Colleges plan year will begin on January 1, 2013.
II. The Affordable Care Act
34. In March 2010, Congress passed, and President Obama signed into law, the Patient
Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and
Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the
Affordable Care Act.
JA 14
35. The Affordable Care Act regulates the national health insurance market by directly
regulating group health plans and health insurance issuers.
36. The Act does not apply equally to all insurers.
37. The Act does not apply equally to all individuals.
38. The Act does not apply to employers with fewer than 50 employees, not counting
seasonal workers. 26 U.S.C. 4980H(c)(2)(A).
39. 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.
40. 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).
41. The Acts preventive care requirements do not apply to employers who provide so-called
grandfathered health care plans.
42. Employers who follow HHS guidelines may continue to use grandfathered plans
indefinitely.
43. HHS has predicted that a majority of large employers, employing more than 50 million
Americans, will continue to use grandfathered plans through at least 2014, and that a third of
small
employers
with
between
50
and
100
employees
may
do
likewise.
http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
JA 15
44. The Act is not generally applicable because it provides for numerous exemptions from its
rules.
45. The Act is not neutral because some groups, both secular and religious, enjoy exemptions
from the law, while certain religious groups do not.
46. The Act creates a system of individualized exemptions.
47. 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).
48. HHS waivers release employers and other plan issuers from complying with the
provisions of the Act.
49. HHS decides whether to grant waivers based on individualized waiver requests from
particular employers and other health insurance plan issuers.
50. Upon information and belief, thousands of HHS waivers have been granted.
51. The Act is not neutral because some secular and religious groups have received statutory
exceptions while other religious groups have not.
52. The Act is not neutral because some secular and religious groups have received HHS
waivers while other religious groups have not.
53. The Act is not generally applicable because Defendants have granted numerous waivers
from complying with its requirements.
54. The Act is not generally applicable because it does not apply equally to all individuals
and plan issuers.
55. Defendants waiver practices create a system of individualized exemptions.
JA 16
Filed 11/10/11 Page 10 of 26
III. The Preventive Care Mandate

56. 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 300gg13(a)(4).
57. On July 19, 2010, HHS, along with the Department of Treasury and the Department of
Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726
(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).
58. 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.
59. 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.
60. 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
1
For ease of reading, references to HHS in this Complaint are to all three Departments.
JA 17
Filed 11/10/11 Page 11 of 26
Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John
Santelli, the National Womens Law Center, National Womens Health Network, Planned
Parenthood Federation of America and Sara Rosenbaum.
61. 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.
62. 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
sterilization procedures and 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).
63. 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.
64. 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
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.
JA 18
Filed 11/10/11 Page 12 of 26
65. The Mandate also requires group health care plans and issuers to provide education and
counseling for all women beneficiaries with reproductive capacity.
66. The Mandate went into effect immediately as an interim final rule.
67. HHS did not take into account the concerns of religious organizations in the comments
submitted before the Mandate was issued.
68. Instead the Mandate was unresponsive to the concerns stated in the comments submitted
by religious organizations.
69. When it issued the Mandate, HHS requested comments from the public by September
30th and indicated that comments would be available online.
70. Upon information and belief, over 100,000 comments were submitted against the
Mandate.
71. 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.
72. The Mandate fails to take into account the statutory and constitutional conscience rights
of religious organizations like the College which have been pointed out in comments.
73. The Mandate requires that the College provide coverage for contraception, sterilization,
abortion, and related education and counseling against its conscience in a manner that is contrary
to law.
74. The Mandate constitutes government-imposed pressure and coercion on the College to
change or violate its religious beliefs.
JA 19
Filed 11/10/11 Page 13 of 26
75. The Mandate exposes the College to substantial fines for refusal to change or violate its
religious beliefs.
76. The Mandate imposes a burden on the Colleges employee and student recruitment
efforts by creating uncertainty as to whether the College will be able to offer health insurance
beyond 2012.
77. The Mandate places the College at a competitive disadvantage in its efforts to recruit and
retain employees and students.
78. The Mandate forces the College to provide contraception, sterilization, and some
abortifacient drugs in violation of the Colleges religious beliefs.
79. The Mandate forces the College to provide emergency contraception in violation of its
religious beliefs.
80. The College 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.
81. The College considers the prevention by artificial means of the implantation of a human
embryo to be an abortion.
82. The College believes that Plan B and ella can cause the death of the embryo.
83. Plan B can prevent the implantation of a human embryo in the wall of the uterus.
84. Ella can prevent the implantation of a human embryo in the wall of the uterus.
85. Plan B and ella can cause the death of the embryo.
86. 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.
JA 20
Filed 11/10/11 Page 14 of 26
87. The use of artificial means to cause the death of a human embryo constitutes an
abortion as that term is used in federal law.
88. The Mandate forces the College 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.
89. The Mandate forces the College to fund education and counseling concerning
contraception, sterilization, and abortion that directly conflicts with the Colleges religious
beliefs and teachings.
90. The College could not terminate its employees and students from health insurance
coverage without violating its religious duty to provide for the health and well-being of its
employees and students.
91. The Mandate forces the College to choose among violating its religious beliefs, incurring
substantial fines, or terminating its employee and student health insurance coverage.
92. Providing this counseling and education directly undermines the explicit messages and
speech of the College.
93. 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.
94. The College has already had to devote significant institutional resources, including both
staff time and funds, to determining how to respond to the Mandate. The College anticipates
continuing to make such expenditures of time and money up until the time that the Mandate goes
into effect.
JA 21
Filed 11/10/11 Page 15 of 26
IV. The Narrow and Discretionary Religious Exemption

95. 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).
96. 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).
97. The Mandate imposes no constraint on HRSAs discretion to grant exemptions to some,
all, or none of the organizations meeting the Mandates definition of religious employers.
98. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76
Fed. Reg. 46621.
99. Most religious organizations, including the College, have more than one purpose.
100. For most religious organizations, including the College, the inculcation of religious
values is only one purpose among others.
101. Many religious organizations, including the College, employ many persons who do not
share the religious organizations beliefs.
102. Many religious organizations, including the College, serve many persons who do not
share the religious tenets of the religious organization.
JA 22
Filed 11/10/11 Page 16 of 26
103. The College reasonably expects that it will be subject to the Mandate despite the
existence of the exemption.
104. The College has no conscientious objection to providing preventive services such as
mammograms.
CLAIMS
COUNT I
Violation of the Religious Freedom Restoration Act
Substantial Burden
105. The College incorporates by reference all preceding paragraphs.
106. The Colleges sincerely held religious beliefs prohibit it from providing coverage for
contraception, sterilization, abortion, or related education and counseling. The Colleges
compliance with these beliefs is a religious exercise.
107. The Mandate creates government-imposed coercive pressure on the College to change
or violate its religious beliefs.
108. The Mandate chills the Colleges religious exercise.
109. The Mandate exposes the College to substantial fines for its religious exercise.
110. The Mandate exposes the College to substantial competitive disadvantages, in that it
will no longer be permitted to offer health insurance.
111. The Mandate imposes a substantial burden on the Colleges religious exercise.
112. The Mandate furthers no compelling governmental interest.
113. The Mandate is not narrowly tailored to any compelling governmental interest.
114. The Mandate is not the least restrictive means of furthering Defendants stated interests.
JA 23
Filed 11/10/11 Page 17 of 26
115. The Mandate and Defendants threatened enforcement of the Mandate violate the
Colleges rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et
seq.
116. Absent injunctive and declaratory relief against the Mandate, the College 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
119. Neither the Affordable Care Act nor the Mandate is neutral.
120. Neither the Affordable Care Act nor the Mandate is generally applicable.
121. Defendants have created categorical exemptions and individualized exemptions to the
Mandate.
JA 24
Filed 11/10/11 Page 18 of 26
Colleges rights secured to it by the Free Exercise Clause of the First Amendment of the United
States Constitution.
COUNT III
Intentional Discrimination
134. Despite being informed in detail of these beliefs beforehand, Defendants designed the
Mandate and the religious exemption to the Mandate in a way that made it impossible for the
College to comply with its religious beliefs.
135. Defendants promulgated both the Mandate and the religious exemption to the Mandate
in order to suppress the religious exercise of The College and others.
136. The Mandate and Defendants threatened enforcement of the Mandate thus violate the
JA 25
Filed 11/10/11 Page 19 of 26
COUNT IV
Discrimination Among Religions
139. By design, Defendants imposed the Mandate on some religious organizations but not on
others, resulting in discrimination among religions.
140. 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.
COUNT V
Establishment Clause
Selective Burden/Denominational Preference (Larson v. Valente)
144. By design, defendants imposed the Mandate on some religious organizations but not on
others, resulting in a selective burden on the College.
146. The Mandate and Defendants threatened enforcement of the Mandate therefore violate
the Colleges rights secured to it by the Establishment Clause of the First Amendment of the
United States Constitution.
JA 26
Filed 11/10/11 Page 20 of 26
COUNT VI
Freedom of Speech
Compelled Speech
149. The College teaches that contraception, sterilization, and abortion violate its religious
beliefs.
150. The Mandate would compel the College to subsidize activities that the College teaches
are violations of the Colleges religious beliefs.
151. The Mandate would compel the College to provide education and counseling related to
152. Defendants actions thus violate the Colleges right to be free from compelled speech as
secured to it by the First Amendment of the United States Constitution.
153. The Mandates compelled speech requirement is not narrowly tailored to a compelling
governmental interest.
JA 27
Filed 11/10/11 Page 21 of 26
COUNT VII
Freedom of Speech
Expressive Association
beliefs.
157. The Mandate would compel the College to subsidize activities that the College teaches
are violations of the Colleges religious beliefs.
158. The Mandate would compel the College to provide education and counseling related to
159. Defendants actions thus violate the Colleges right of expressive association as secured
to it by the First Amendment of the United States Constitution.
COUNT VIII
Free Exercise Clause and Freedom of Speech
Unbridled Discretion
162. By stating that HRSA may grant an exemption to certain religious groups, the
Mandate vests HRSA with unbridled discretion over which organizations can have its First
Amendment interests accommodated.
JA 28
Filed 11/10/11 Page 22 of 26
163. The Mandate vests HRSA with unbridled discretion to determine whether a religious
organization such as the College primarily serves and employs members of the same faith as
the organization.
164. Defendants actions therefore violate the Colleges right not to be subjected to a system
of unbridled discretion when engaging in speech or when engaging in religious exercise, as
COUNT IX
Violation of the Administrative Procedure Act
Lack of Good Cause
167. 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.
168. 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.
169. Therefore, Defendants have taken agency action not in observance with procedures
required by law, and the College is entitled to relief pursuant to 5 U.S.C. 706(2)(D).
JA 29
Filed 11/10/11 Page 23 of 26
COUNT X
Arbitrary and Capricious Action
172. In promulgating the Mandate, Defendants failed to consider the constitutional and
statutory implications of the mandate on the College and similar organizations.
173. Defendants explanation for its decision not to exempt the College and similar religious
organizations from the Mandate runs counter to the evidence submitted by religious
organizations during the comment period.
174. 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.
COUNT XI
Agency Action Not in Accordance with Law
Weldon Amendment
Religious Freedom Restoration Act
First Amendment to the United States Constitution
177. 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).
178. 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]
JA 30
Filed 11/10/11 Page 24 of 26
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.
179. The Mandate requires issuers, including the College, to provide coverage of all Federal
Drug Administration-approved contraceptives.
180. Some FDA-approved contraceptives cause abortions.
181. As set forth above, the Mandate violates RFRA and the First Amendment.
182. Under 5 U.S.C. 706(2)(A), the Mandate is contrary to existing law, and is in violation
of the APA.
COUNT XII
Affordable Care Act
185. The Mandate is contrary to the provisions of the Affordable Care Act.
186. 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 servicesshall 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.
187. 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.
JA 31
Filed 11/10/11 Page 25 of 26
188. Under the Affordable Care Act, Defendants do not have the authority to decide whether
a plan covers abortion; only the issuer does.
189. The Mandate requires issuers, including the College, to provide coverage of all Federal
Drug Administration-approved contraceptives.
of the APA.
PRAYER FOR RELIEF
Wherefore, the College requests that the Court:
a. Declare that the Mandate and Defendants enforcement of the Mandate against the
College violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants enforcement of the Mandate against the
College 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
College 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 College the costs of this action and reasonable attorneys fees; and
f. Award such other and further relief as it deems equitable and just.
JA 32
Filed 11/10/11 Page 26 of 26
JA 33
Case 1:11-cv-01989-JEB Document 22 Filed 03/20/12 Page 1 of 29

BELMONT ABBEY COLLEGE,
)
)
)
Plaintiff,
)
)
v.
)
)
)
)
Health and Human Services, UNITED
)
STATES DEPARTMENT
)
OF HEALTH AND HUMAN
)
SERVICES, HILDA SOLIS, Secretary of )
the United States Department of Labor,
)
)
LABOR, TIMOTHY GEITHNER,
)
Secretary of the United States Department )
of the Treasury, and UNITED STATES
)
DEPARTMENT OF THE TREASURY,
)
)
Defendants.
)
____________________________________)
Civ. Action No. 1:11-cv-01989-JEB

FIRST AMENDED COMPLAINT
JA 34
FIRST AMENDED COMPLAINT

Comes now Plaintiff Belmont Abbey College, by and through its attorneys, and states as
follows:
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 Belmont Abbey College is a small religious college, whose religious beliefs
forbid it from participating in, providing access to, paying for, training others to engage in, or
otherwise supporting contraception, sterilization, or abortion. Belmont Abbey College is among
the many American religious organizations that hold these beliefs.
Mandate) that runs roughshod over Belmont Abbey Colleges religious beliefs, and the beliefs
of millions of other Americans by forcing them to provide health insurance coverage for
contraception, sterilization, abortion, and related education and counseling.
4. The governments Mandate unconstitutionally coerces Belmont Abbey College to violate
its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also
forces Belmont Abbey College to facilitate government-dictated speech incompatible with its
own speech and religious teachings. Having to pay a fine to the taxing authorities for the
privilege of practicing ones religion or controlling ones own speech is un-American,
unprecedented, and flagrantly unconstitutional.
JA 35
Affordable Care Act for other groups, including large corporations, often for reasons of
commercial convenience. And the government allows a variety of other reasonsfrom the age
of the plan to the size of the employerto 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 Belmont Abbey Colleges right to freedom of
religion, as secured by the First Amendment of the United States Constitution and a civil rights
statute, the Religious Freedom Restoration Act (RFRA).
7. Defendants actions also violate Belmont Abbey Colleges right to the freedom of
speech, as secured by the First Amendment of the United States Constitution.
9. Had Belmont Abbey Colleges religious beliefs been obscure or unknown, the
governments 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 Belmont Abbey College and
millions of other Americans. The College seeks declaratory and injunctive relief to protect
against this attack.

JA 36
2000bb-1.
or omissions giving rise to the claim occurred in this District, and the Defendants are located in
this District.
12. Plaintiff Belmont Abbey College is a private Catholic Benedictine College in Belmont,
North Carolina. Founded by an order of monks in 1876, Belmont Abbey finds its center in Jesus
Christ and seeks to provide an educational environment in which the principles of Holy Scripture
as taught by the Catholic Church are held up as an ideal.
JA 37
Mandate.
FACTUAL ALLEGATIONS
I. The Colleges Religious Beliefs and Practices Related to Insurance for Contraception,
Sterilization, and Abortion.
20. Belmont Abbey College is a small liberal arts school located outside of Charlotte, North
Carolina. It was founded in 1876 by a congregation of Benedictine monks, who built the campus
with bricks they formed by hand from the red clay of the North Carolina soil.
21. Today, the monastery operates in the center of campus, and the monks of the Abbey
continue to live on the campus of the College and sponsor it. They provide significant financial
support for the College, and the Monks also serve on the Board of Trustees that governs the
College. The head of the monastery, Abbot Placid, serves as the Colleges Chancellor.
22. Faith is central to the educational mission of Belmont Abbey College. The College
describes itself as a Catholic Benedictine College that finds its center in Jesus Christ. Today, as
in years past and in the future, our college is inspired by St. Benedicts desire that in all things
God may be glorified. The College adheres to the Apostolic Constitution Ex Corde Ecclesiae
of Pope John Paul II, which is the relevant law of the Roman Catholic Church for Catholic
colleges and universities.
23. Belmont Abbey Colleges purpose is expressed in its mission statement: Our mission is
to educate students in the liberal arts and sciences so that in all things God may be glorified. In
JA 38
this endeavor, we are guided by the Catholic intellectual tradition and the Benedictine spirit of
prayer and learning. Exemplifying Benedictine hospitality, we welcome a diverse body of
students and provide them with an education that will enable them to lead lives of integrity, to
succeed professionally, to become responsible citizens, and to be a blessing to themselves and
others.
24. Belmont Abbey College holds religious beliefs that include traditional Christian
teachings on the sanctity of life. Belmont Abbey College believes and teaches that each human
being bears the image and likeness of God, and therefore that all human life is sacred and
precious, from the moment of conception. Belmont Abbey College therefore believes and
teaches that abortion ends a human life and is a grave sin.
25. Belmont Abbey Colleges religious beliefs also include traditional Christian teaching on
the nature and purpose of human sexuality. In particular, Belmont Abbey College believes, in
accordance with Pope Paul VIs 1968 encyclical, Humanae Vitae, that human sexuality has two
primary purposes: to most closely unit[e] husband and wife and for the generation of new
lives. Accordingly, the College believes, with the Catholic Church, that [t]o use this divine gift
destroying, even if only partially, its meaning and its purpose is to contradict the nature both of
man and of woman and of their most intimate relationship, and therefore it is to contradict also
the plan of God and His Will. Therefore, Belmont Abbey College believes and teaches that
any action which either before, at the moment of, or after sexual intercourse, is specifically
intended to prevent procreation, whether as an end or as a meansincluding contraception and
sterilizationis a grave sin.
26. Belmont Abbey College has approximately 1700 students.
27. Belmont Abbey College has 200 full-time and 105 part-time employees.
JA 39
28. As part of its commitment to Catholic education, in accordance with Catholic social
teaching, Belmont Abbey College also promotes the well-being and health of its students and
employees. This includes provision of health services and health insurance for its students and
employees.
29. Belmont Abbey Colleges religious beliefs prohibit it from deliberately providing
insurance coverage for drugs, devices, services or procedures inconsistent with its faithin
particular, sterilization, contraception, or abortion.
30. Nor would Belmont Abbey Colleges religious beliefs permit it to deliberately provide
health insurance that would facilitate access to artificial contraception, sterilization, abortion, or
related education and counselingeven if those items are paid for by an insurer and not by
Belmont Abbey College.
31. Belmont Abbey College has insisted on this limitation in its insurance policies despite
employee complaints to the EEOC, an EEOC investigation, and a potential lawsuit over the
decision not to provide contraceptive coverage. The College believes that any change would be
in violation of its Christian faith.
32. Belmont Abbey College has likewise expended significant resources working with its
insurers to ensure that its health insurance policies are consistent with the Colleges religious
beliefs. For example, even when an insurance company has expressly agreed to implement
exclusions for contraception, sterilization, and abortion, the College has found it necessary to
request that policies be corrected and re-issued to ensure that their language properly reflects the
exclusions for which the College has bargained.
33. Belmont Abbey Colleges plan year will begin on January 1, 2013.
JA 40
34. On January 1, 2011, Belmont Abbey College adopted a new employee health insurance
plan by changing its insurance carrier from Wellpath to Blue Cross Blue Shield.
39. The Act does not apply to employers with fewer than 50 employees, not counting
40. 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.
JA 41
indefinitely.
small
employers
with
between
50
and
100
employees
may
do
likewise.
rules.
JA 42
and plan issuers.
(2010). 1 The interim final rule required providers of group health insurance to cover preventive
JA 43
should
be
covered
by
all
health
plans
as
preventative
care
for
women.
See
Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John
Santelli, the National Womens Law Center, National Womens Health Network, Planned
Parenthood Federation of America and Sara Rosenbaum.
invited presenters.
published its recommendations. It recommended that the preventative services include
sterilization procedures and 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).
64. 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.
65. 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
JA 44
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.
69. Instead the Mandate was unresponsive to the concerns stated in the comments submitted
by religious organizations.
70. When it issued the Mandate, HHS requested comments from the public by September 30,
2011, and indicated that comments would be available online.
Mandate.
against.
of religious organizations like Belmont Abbey College which have been pointed out in
comments.
JA 45
74. The Mandate requires that Belmont Abbey College provide coverage or access to
coverage for contraception, sterilization, abortion, and related education and counseling against
its conscience in a manner that is contrary to law.
75. The Mandate constitutes government-imposed pressure and coercion on Belmont Abbey
College to change or violate its religious beliefs.
76. The Mandate exposes Belmont Abbey College to substantial fines for refusal to change
77. The Mandate imposes a burden on Belmont Abbey Colleges employee and student
recruitment efforts by creating uncertainty as to whether the College will be able to offer health
insurance beyond 2012.
78. The Mandate places Belmont Abbey College at a competitive disadvantage in its efforts
to recruit and retain employees and students.
79. The Mandate forces Belmont Abbey College to provide coverage or access to coverage
for contraception, sterilization, and some abortifacient drugs in violation of its religious beliefs.
80. The Mandate forces Belmont Abbey College to provide coverage or access to coverage
for emergency contraception in violation of its religious beliefs.
81. Belmont Abbey College has a sincere religious objection to providing coverage or access
to 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.
82. Belmont Abbey College considers the prevention by artificial means of the implantation
of a human embryo to be an abortion.
83. Belmont Abbey College believes that Plan B and ella can cause the death of the embryo.
JA 46
85. Ella can prevent the implantation of a human embryo in the wall of the uterus.
86. Plan B and ella can cause the death of the embryo.
89. The Mandate forces Belmont Abbey College 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.
90. The Mandate forces Belmont Abbey College to provide insurance coverage or access to
insurance coverage for to fund education and counseling concerning contraception, sterilization,
and abortion, which are incompatible with the Colleges religious beliefs and teachings.
91. Belmont Abbey College could not terminate its employees and students from health
insurance coverage without violating its religious duty to provide for the health and well-being of
its employees and students.
92. The Mandate forces Belmont Abbey College to choose among violating its religious
beliefs, incurring substantial fines, or terminating its employee and student health insurance
coverage.
93. Providing this counseling and education is incompatible and irreconcilable with the
explicit messages and speech of Belmont Abbey College.
94. Belmont Abbey Colleges current employee health insurance plan was instituted after
March 23, 2010.
JA 47
95. Belmont Abbey Colleges employee health insurance plan is not eligible for grandfather
status. See 45 C.F.R. 147.140(a)(1)(i); 26 C.F.R. 54.9815-1251T(a)(1)(i); 29 C.F.R.
2590.715-1251(a)(1)(i).
96. Belmont Abbey College has already had to devote significant institutional resources,
including both staff time and funds, to determining how to respond to the Mandate. Belmont
Abbey College anticipates continuing to make such expenditures of time and money up until the
time that the Mandate goes into effect.
147.130(a)(iv)(A).
98.
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
amended. 45 C.F.R. 147.130(a)(iv)(B).
99.
The Mandate imposes no constraint on HRSAs discretion to grant exemptions to some,
Fed. Reg. 46621.
JA 48
101. Most religious organizations, including Belmont Abbey College, have more than one
purpose.
102. For most religious organizations, including Belmont Abbey College, the inculcation of
religious values is only one purpose among others.
103. Many religious organizations, including Belmont Abbey College, employ many persons
who do not share the religious organizations beliefs.
104. Many religious organizations, including Belmont Abbey College, serve many persons
who do not share the religious tenets of the religious organization.
105. Belmont Abbey 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.
106. Belmont Abbey College reasonably expects that it will be subject to the Mandate
despite the existence of the exemption.
107. Belmont Abbey College has no conscientious objection to providing preventive services
such as mammograms.
108. Belmont Abbey College has no conscientious objection to providing access to drugs
typically used for contraception when they are instead used for purely medical reasons unrelated
to birth control, such as treating ovarian cysts.
109. On January 20, 2012, Defendant 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, to comply with the new law, on the
condition that those employers certify they qualify for the extension. At the same time, however,
Sebelius announced that HHS intend[s] to require employers that do not offer coverage of
JA 49
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. Dept of Health and Human Servs Secretary
Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html
(last visited February 7, 2012).
110. 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.
111. On that same dayFebruary 10, 2012the 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
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. DEPT 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).
JA 50
112. 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.
113. On February 15, 2012, the Defendants adopted as final, without change, the Mandate
and its narrow religious employers exemption. 77 Fed. Reg. 8725, 8727.
114. 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 chargeto employees covered under the organizations health
plan. The ANPRM solicited public comments on structuring the proposed accommodation, and
announced the Defendants intention to finalize the accommodation by the end of the Safe
Harbor
period.
See
https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-
06689.pdf (to be published in the Federal Register on March 21, 2012).

115. The ANPRM also announced Defendants intention to apply the Temporary Safe
Harbor provision to student insurance plans provided by nonprofit institutions of higher
JA 51
education that meet comparable criteria to those established for the employer safe harbor. See
id. at 14.
116. 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.
117. In sum, Belmont Abbey College will be required to satisfy the Safe Harbor notice
requirements outlined in the guidance bulletin by January 1, 2013.
118. It is not clear whether Belmont Abbey College qualifies for the Safe Harbor because the
College is willing to provide coverage for drugs typically used for contraceptive purposes when
they are instead used for purely medical purposes other than birth control, such as treating
ovarian cysts.
119. Even if the Safe Harbor applies, Belmont Abbey College will be subject to enforcement
action by Defendants under the Mandate no later than January 1, 2014.
CLAIMS
COUNT I
Substantial Burden
120. Belmont Abbey College incorporates by reference all preceding paragraphs.
121. The Colleges sincerely held religious beliefs prohibit it from providing coverage or
access to coverage for contraception, sterilization, abortion, or related education and counseling.
The Colleges compliance with these beliefs is a religious exercise.
JA 52
Colleges rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et
seq.
COUNT II
Substantial Burden
Mandate.
JA 53
COUNT III
Mandate and the religious exemption to the Mandate in a way that made it impossible for the
College to comply with its religious beliefs.
JA 54
in order to suppress the religious exercise of the College and others.
COUNT IV
COUNT V
JA 55
others, resulting in a selective burden on the College.
the Colleges rights secured to it by the Establishment Clause of the First Amendment of the
United States Constitution.
COUNT VI
Freedom of Speech
Compelled Speech
beliefs.
165. The Mandate would compel the College to cooperate in activities through its provision
of health insurance that the College teaches are violations of the Colleges religious beliefs.
166. The Mandate would compel the College to provide, through its provision of health
insurance, education and counseling related to contraception, sterilization, and abortion.
167. Defendants actions thus violate the Colleges right to be free from compelled speech as
JA 56
COUNT VII
Freedom of Speech
beliefs.
172. The Mandate would compel the College to cooperate in activities, through its provision
of health insurance, that the College teaches are violations of the Colleges religious beliefs.
173. The Mandate would compel the College to provide, through its provision of health
insurance, education and counseling related to contraception, sterilization, and abortion.
174. Defendants actions thus violate the Colleges right of expressive association as secured
COUNT VIII
JA 57
organization such as the College primarily serves and employs members of the same faith as
the organization.
179. Defendants actions therefore violate the Colleges right not to be subjected to a system
of unbridled discretion when engaging in speech or when engaging in religious exercise, as
COUNT IX
Lack of Good Cause
required by law, and the College is entitled to relief pursuant to 5 U.S.C. 706(2)(D).
JA 58
COUNT X
statutory implications of the mandate on the College and similar organizations.
188. Defendants explanation for its decision not to exempt the College and similar religious
the meaning of 5 U.S.C. 706(2)(A) because the rules fail to consider the full extent of their
COUNT XI
Weldon Amendment
JA 59

abortions.
194. The Mandate requires issuers, including the College, to provide coverage or access to
coverage for all Federal Drug Administration-approved contraceptives.
of the APA.
COUNT XII
Affordable Care Act
JA 60
204. The Mandate requires issuers, including the College, to provide coverage or access to
of the APA.
PRAYER FOR RELIEF
Wherefore, Belmont Abbey College requests that the Court:
a. Declare that the Mandate and Defendants enforcement of the Mandate against the
College violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants enforcement of the Mandate against the
College violate the Religious Freedom Restoration Act;
Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against the
College 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 College the costs of this action and reasonable attorneys fees; and
JA 61
Respectfully submitted this 19th day of March, 2012.

s/ Mark L. Rienzi
Mark L. Rienzi, D.C. Bar No. 494336
Eric C. Rassbach, D.C. Bar No. 493739
Hannah C. Smith, D.C. Bar No. 480368
Eric N. Kniffin, D.C. Bar No. 999473
THE BECKET FUND FOR RELIGIOUS LIBERTY
3000 K Street N.W., Suite 220
202.955.0095 (tel.)
202.955.0090 (fax)
Attorneys for Plaintiff
Belmont Abbey College
JA 62
UNITED STATES DISTRICT COURT


Plaintiff,
v.
Civil Action No. 11-1989 (JEB)
KATHLEEN SEBELIUS, Secretary of the

U.S. Department of Health and Human
Services, et al.,
Defendants.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, the Court ORDERS
that:
1. Defendants Motion to Dismiss is GRANTED; and
2. Plaintiffs Amended Complaint is DISMISSED WITHOUT PREJUDICE.
/s/ James E. Boasberg

JAMES E. BOASBERG
United States District Judge
Date: July 18, 2012
JA 63


Plaintiff,
v.

Services, et al.,
Defendants.
MEMORANDUM OPINION
Under the Patient Protection and Affordable Care Act of 2010, employers are required to
offer group health-insurance plans that cover certain forms of preventive care without charging a
co-payment. For example, the Act mandates that group health plans pay in full for all FDAapproved contraceptive services sought by plan participants, including sterilization procedures,
emergency oral contraception (such as the morning-after pill), and counseling for women of
reproductive age.
The Departments of Health and Human Services, Treasury, and Labor
subsequently issued regulations to that effect, while simultaneously carving out a narrow
exemption to the contraceptive-coverage requirement for religious organizations that meet
specific criteria.
Plaintiff Belmont Abbey is a Benedictine college in North Carolina that shares the
Catholic Churchs view that contraception, sterilization, and abortion are grave sins. See Am.
Compl., 24-25. Belmont alleges that it would violate its strongly held religious beliefs to
sponsor any health-insurance plan that pays for these services. Believing it is ineligible for an
JA 64
exemption, Belmont contends that it is required by law to comply with the contraceptivecoverage mandate.
On November 10, 2011, the Abbey filed the instant suit alleging that this mandate
violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom
Restoration Act. Instead of addressing the merits of such claims, Defendants have now moved to
dismiss the action for lack of subject-matter jurisdiction. Because the government has indicated
its intention to amend the regulations to better take into account religious objections and because
Plaintiff is protected in the interim by a safe-harbor provision, the Court agrees that Belmonts
injury is too speculative to confer standing and that the case is also not ripe for decision.
Dismissal without prejudice is thus appropriate.
I.
Background
A. Statutory and Regulatory Background
The Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat.
119, enacted in March 2010, requires group health plans to provide women with preventive care
and screenings at no charge to the patient. See 42 U.S.C. 300gg-13(a)(4); see also 155 Cong.
Rec. S12019, S12025, S12261, S12271. Specifically, the ACA mandates that non-grandfathered
group health plans and health-insurance issuers cover without impos[ing] any cost sharing
requirements such additional preventive care and screenings [for women] as provided for
in comprehensive guidelines supported by the Health Resources and Services Administration
[HRSA] for purposes of this paragraph. 42 U.S.C. 300gg-13(a)(4).
The Department of Health and Human Services commissioned the Institute of Medicine
(IOM), a private health-policy organization, to develop recommendations for the HRSA
guidelines.
See http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-
JA 65
Closing-the-Gaps.aspx. After consulting with a committee of experts, IOM published a report

suggesting specific preventive health measures to be included in the guidelines. Id.
Among
other things, IOM proposed that insurance plans be required to cover [t]he full range of Food
and Drug Administration-approved contraceptive methods, sterilization procedures, and patient
education and counseling for women with reproductive capacity. Id. at 3; Clinical Preventive
Services for Women: Closing the Gaps at 10, 165. This would include emergency contraceptives
such as Plan B and ulipristal, commonly known as the morning-after pill and the week-after pill,
respectively. See www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm.
HRSA
adopted
IOMs
recommendations
in
full,
see
http://www.hrsa.gov/womensguidelines, and on August 1, 2011, HHS, the Department of Labor,

and the Department of Treasury promulgated an interim final rule 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 women included in HRSAs guidelines. See 76 Fed. Reg. 46621; 45 C.F.R. 147.130; see
also
http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-
Gaps/Action-Taken.aspx.
Thus, according to the regulation, all plans and policies, unless
grandfathered or otherwise exempt, must cover contraceptive services for plan years beginning
on or after August 1, 2012. See 76 Fed. Reg. 46621-01.
To account for organizations that might have religious objections to contraception, the
interim final rule authorized HRSA to release certain employers from the requirements
concerning coverage for contraceptives. See 76 Fed. Reg. 46621-01, 46623 (issued on August 1,
2011, and published August 3, 2011); 45 C.F.R. 147.130(a)(1)(iv)(A)-(B). Only employers
that meet all of the following criteria would be eligible for an exemption:
JA 66
(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious
tenets of the organization.
(3) The organization serves primarily persons who share the religious
tenets of the organization.
(4) The organization is a nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue
Code of 1986, as amended.
45 C.F.R. 147.130(a)(1)(iv)(B)(1)-(4) (HHS); see also 26 C.F.R. 54.9815-2713T
(Treasury); 29 CFR 2590.715-2713 (Labor).
The IRS code sections in the regulation,
furthermore, refer to churches, their integrated auxiliaries, and conventions or associations of

churches and the exclusively religious activities of any religious order. See Internal Revenue
Code 6033(a)(3)(A)(i), (iii). The HRSA used the discretion conferred by the regulation to
exempt group health plans sponsored by organizations that satisfy these criteria from the
contraceptive-services coverage requirement. See 77 Fed. Reg. 8725-01. The parties agree that
Belmont is not exempted under this provision because it employs and serves many individuals
who do not share its religious values and because it is not a church and does not otherwise
qualify as an organization described in the relevant sections of the IRS Code.
Upon issuing the interim final rule, the Departments requested comments, specifically
regarding the definition of religious employer in the regulation. Id. at 8726. Over 200,000
comments were submitted from groups and individuals ranging from religiously affiliated
institutions to womens rights organizations to concerned citizens. Id. Some commenters urged
the Departments to expand the definition of religious employer to include religiously affiliated
educational institutions, health care organizations, and charities, while others recommended that
the exemption be removed from the regulation altogether. Id. at 8726-27.
JA 67
After considering these alternatives and others, the Departments decided to leave the
exemption unchanged, while also creating a one-year enforcement safe harbor for certain
non-exempted, non-profit organizations with religious objections to covering contraceptive
services. Id. at 8728. In guidance issued by HHS on February 10, 2012, the Department stated
that, during the safe-harbor period, employers, group health plans, and group health-insurance
issuers would not be subject to any enforcement action by the Departments for failing to cover
recommended contraceptive services without cost sharing in non-exempted, non-grandfathered
group health plans. See Guidance on the 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
at
3,
available
at
(last visited July 10, 2012) [Guidance]. The safe harbor will remain in effect until the first
plan year that begins on or after August 1, 2013, and Treasury and Labor have agreed to abide
by it as well. Id. at 2-3.
When HHS, Labor, and Treasury issued their final rule in February of 2012, they
announced their intention to develop alternative means of providing contraceptive services free
of charge to employees of non-exempt, non-grandfathered organizations with religious
objections to contraceptive coverage.
See 77 Fed. Reg. 8728 (published Feb. 15, 2012).
Specifically, the final regulation stated that the Departments plan to initiate a rulemaking to
require issuers to offer insurance without contraception coverage to such an employer (or plan
sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan
JA 68
participants (and their beneficiaries) who desire it, with no cost-sharing. Id. The Departments
indicated that they would work with stakeholders to propose and finalize this policy before the
expiration of the enforcement safe harbor. Id. at 8728-29.
Indeed, on March 21, 2012, the Departments issued an Advance Notice of Proposed
Rulemaking (ANPRM) formally declaring their intention to amend the final regulations and
soliciting input from interested parties and the public. The ANPRM presents questions and ideas
about how to accommodat[e] non-exempt, 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.
77 Fed. Reg. 16503. After the 90-day comment period on the ANPRM, the Departments will
publish a Notice of Proposed Rulemaking, which will afford the public another opportunity for
comment before amended final regulations are issued. Id.
B. Belmont Abbey College
According to its Amended Complaint, Belmont Abbey College is a private Catholic
college founded by Benedictine monks in North Carolina in 1876. See Am. Compl., 12. The
teachings of the Catholic Church remain central to its purpose. Id., 23. The Colleges mission
statement is inspired by St. Benedicts desire that in all things God may be glorified, and
Benedictine monks not only serve on the Colleges Board of Trustees but also provide the
institution with significant financial support. Id., 21-22. In addition, Belmont adheres to the
law of the Roman Catholic Church for Catholic colleges and universities. Id., 22.
The College shares the Catholic Churchs view that all human life, having been created in
the image and likeness of God, is sacred from the time of conception. Id., 24. In accordance
with this view, the College teaches that abortion ends a human life and is a grave sin. Id. It
likewise believes that one of the central purposes of human sexuality is the generation of new
JA 69
lives. Id., 25. Based on this premise, it concludes that any action which either before, at the
moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as
an end or means including contraception and sterilization is a grave sin.
Id. Plaintiff
claims that it would therefore violate Belmonts religious beliefs to provide health insurance that
would cover or facilitate access to contraception, sterilization, abortion or related education and
counseling. Id., 28-30.
C. Procedural History
On November 10, 2011, Belmont filed suit against the United States and the three
Departments responsible for the contraceptive-services regulation i.e., HHS, Labor, and
Treasury (and their Secretaries). The suit challenges the ACA and the administrative regulations
requiring insurance coverage for contraceptives as violative of the First Amendment, the
Administrative Procedure Act, and the Religious Freedom Restoration Act.
Id., 105-92.
After the Complaint had been filed, Defendants finalized the interim rule, issued guidance on a
temporary-enforcement safe harbor, and announced their plans to amend the regulation to
accommodate religious organizations objections to providing insurance coverage for
contraceptives. See Def. Mot. to Dismiss (ECF No. 15) at 6-7. Defendants subsequently moved
to dismiss for lack of jurisdiction, contending that Plaintiff lacked standing and that the case was
not ripe for judicial review. Id. at 11-20. Plaintiff opposed and separately sought leave to file an
Amended Complaint in light of the developments that had occurred since it brought suit. ECF
Nos. 20-21. The Court permitted Plaintiff to file an Amended Complaint and, accordingly,
denied Defendants Motion to Dismiss without prejudice as moot. See Minute Order of March
20, 2012.
On April 5, 2012, Defendants renewed their Motion, again seeking dismissal on standing
and ripeness grounds. The Court turns to that Motion now.
JA 70
II.
Legal Standard
In evaluating a motion to dismiss for lack of standing or ripeness under Rule 12(b)(1),
the Court must treat the complaints factual allegations as true . . . and must grant plaintiff the
benefit of all inferences that can be derived from the facts alleged. Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, a
legal conclusion couched as a factual allegation, nor an inference unsupported by the facts set
forth in the Complaint. Trudeau v. Fed. Trade Commn, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted).
To survive a motion to dismiss under Rule 12(b)(1), Plaintiff bears the burden of
proving that the Court has subject-matter jurisdiction to hear its claims. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dept of Interior, 231 F.3d 20,
24 (D.C. Cir. 2000). A court has an affirmative obligation to ensure that it is acting within the
scope of its jurisdictional authority. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185
F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, the [p]laintiffs factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a
12(b)(6) motion for failure to state a claim. Id. at 13-14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure 1350 (2d ed. 1987) (alteration in original)).
Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court may
consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack
of jurisdiction . Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C.
v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) (given the present posture of this case a
JA 71
dismissal under Rule 12(b)(1) on ripeness grounds the court may consider materials outside
the pleadings); Herbert v. Natl Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
III.
Analysis
Defendants contend that this Court does not have jurisdiction to decide Plaintiffs claims
because (1) Plaintiff has not alleged an imminent injury and therefore lacks standing, and (2)
the regulation Belmont seeks to invalidate may well be amended to address the concerns of
Plaintiff and similarly situated organizations before it is enforced, thereby absolving the need for
judicial intervention and rendering the matter unripe. The Court will evaluate these arguments in
turn.
A. Standing
Defendants first seek to dismiss Plaintiffs Amended Complaint on the ground that
Belmont lacks standing, thereby depriving the Court of subject-matter jurisdiction. Article III of
the Constitution limits the power of the federal judiciary to the resolution of Cases and
Controversies. U.S. Const. art. III, 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984)
(discussing case-or-controversy requirement). This limitation is no mere formality: it defines
with respect to the Judicial Branch the idea of separation of powers on which the Federal
Government is founded. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012)
(quoting Allen, 468 U.S. at 750). Because standing is an essential and unchanging part of the
case-or-controversy requirement of Article III, Lujan, 504 U.S. at 560, finding that a plaintiff
has standing is a necessary predicate to any exercise of [the Courts] jurisdiction.
Fla.
Audubon Socy v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).

The doctrine of standing requires federal courts to satisfy themselves that the plaintiff
has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation
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of federal-court jurisdiction.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)
(emphasis in original) (citing Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). At its irreducible
constitutional minimum, the doctrine requires a plaintiff to prove three elements: (1) a concrete
and imminent injury-in-fact, (2) a causal relationship between the injury and defendants
challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable
decision.
See Lujan, 504 U.S. at 560-61.
Organizations suing on their own behalf, like
individuals, must also satisfy these three requirements. See Natl Taxpayers Union, Inc. v.
United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) (citing Havens Realty Corp. v. Coleman, 455
U.S. 363, 378 (1982)).
Here, Defendants contend that Plaintiff fails the first prong namely, it has not alleged
an injury sufficient to support standing.
See Mot. at 12.
To satisfy the injury-in-fact
requirement, a plaintiff must establish that it has suffered (or will suffer) an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical. Lujan, 504 U.S. at 560 (internal quotations omitted). Put another
way, a threatened injury must be certainly impending to confer standing; harm that is possible
or even likely will not suffice. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
Defendants maintain that Plaintiff has failed to meet this standard for three reasons. First,
the preventive-services regulation does not apply to plans that are grandfathered, and,
according to Defendants Motion, Plaintiff has not sufficiently alleged that it is ineligible for
grandfather status. See Mot. at 13-14. Second, even if Plaintiffs plan is not grandfathered,
Defendants argue that the safe-harbor provision renders the threatened harm from the
contraceptive-coverage regulation too remote to constitute imminent injury. See Mot. at 15.
Finally, Defendants contend that any injury from enforcement of the provision after the safe
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harbor expires is purely speculative, as they have declared their intention to amend the rule
before that time in order to accommodate religious organizations concerns about funding or
facilitating access to contraception through their health-insurance plans. Id. at 16-17.
1. Grandfather Status
The contraceptive-coverage provision does not apply to health plans that are
grandfathered. See 26 C.F.R. 54.9815-1251T(c)(1); 42 U.S.C. 18011; see also Guidance at
1. A health insurance plan is grandfathered if at least one person was enrolled on March 23,
2010, and the plan has continuously covered at least one individual since that date. See 42
U.S.C. 18011(a)(2); 26 C.F.R. 54.9815-1251T(a), (g); 45 C.F.R. 147.140(a), (g); 29
C.F.R. 2590.715-1251(a), (g). To remain grandfathered, the plan must also provide annual
notice of such status. Id.
Plaintiff disputes Defendants initial contention that it has not adequately pled its
ineligibility for grandfather status. In asserting that the plan was not grandfathered, Am. Compl.,
94-95, the Amended Complaint alleges that Belmont Abbey offered a new plan
beginning in 2011. Id., 34. While Defendants correctly point out that a plan does not cease to
be grandfathered merely because the plan (or its sponsor) enters into a new policy, certificate,
or contract of insurance after March 23, 2010, 45 C.F.R. 147.140(a)(1)(i), that is not what
Plaintiff alleges here. Rather, the Complaint states that Belmont Abbey adopted a new plan
that is, a plan that did not exist and therefore did not cover anyone on March 23, 2010.
Opp. at 11 (emphasis in original). Assuming that to be true, as the Court must when deciding a
Motion to Dismiss, the plan could not be grandfathered. See Jenkins v. McKeithen, 395 U.S.
411, 421-22 (1969) (when ruling on motion to dismiss for lack of standing, court must accept
material allegations in Complaint as true and construe them in opposing partys favor).
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While Defendants maintain that the mere allegation that Plaintiff adopted a new plan
does not sufficiently plead ineligibility for grandfather status, they concede in their Reply that
the materials Plaintiff submitted with its Opposition plausibly suggest that [P]laintiffs plan has
not satisfied the disclosure requirements for maintaining grandfather status. See Reply at 2 n.1
(emphasis in original). They have, accordingly, decided not to press the argument that Plaintiffs
plan may be grandfathered at this stage. Id.
In light of the foregoing, the Court concludes that Plaintiff has sufficiently alleged that its
plan is ineligible for grandfather status. Since Plaintiff does not qualify for the religiousemployer exemption either, see 45 C.F.R. 147.130(a)(1)(iv)(B)(1)-(4), it is bound by the
interim final rule requiring group health plans to fully cover the cost of contraception unless
some other exemption applies.
2. Enforcement Safe Harbor
Defendants contend that, even if its plan is not grandfathered, Belmont Abbey is
protected by the safe-harbor provision; as it would not be subject to enforcement before January
1, 2014, any threatened injury is too remote temporally to be considered imminent. Mot. at
15. Belmont has two responses to this line of argument. First, it suggests that it may in fact be
ineligible for the safe harbor.
Opp. at 13.
To receive the temporary exemption from
enforcement, an organization must certify that contraceptive coverage has not been provided by
the plan on or after February 10, 2012. HHS Bulletin at 3, 6. Because Plaintiff does not object
to covering prescriptions ordinarily used for contraception when they are employed for other
purposes, it contends that it may not be able to make the requisite certification. Opp. at 13. The
regulations make clear, however, that this would not disqualify an organization from the
protections of the safe harbor. See 77 Fed. Reg. 16501, 16504 (indicating that organizations that
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cover some contraceptives may qualify for the safe harbor). The Court, consequently, finds no
basis to conclude that Plaintiff would be ineligible for the benefits of the safe harbor.
Second, even if Plaintiff is protected by the safe harbor, it argues that the injury is
sufficiently imminent to satisfy the standing requirements. In its view, the safe harbor merely
delays enforcement by one year; it does not (in and of itself) reduce the certainty of the
impending injury. See HHS Bulletin at 2-3; see also Regional Rail Reorg. Act Cases, 419 U.S.
102, 143 (1974) (when the inevitability of the operation of a statute against certain individuals
is patent, it is irrelevant that there will be a time delay before the disputed provisions will
come into effect). Under the interim final rule, Plaintiff would be subject to enforcement
beginning in January 2014. See HHS Bulletin at 3; Am. Compl., 33, 119 (stating that
Plaintiffs plan year begins on January 1); see also Mot. at 15. That looming deadline, it
contends, is not too remote. See Opp. at 13-15.
The Court agrees. In another ACA case presenting a nearly identical question of whether
the plaintiffs alleged injuries were imminent for standing purposes, the Eleventh Circuit held
that an injury that would not occur for over two years was sufficient for standing. See Florida ex
rel. Atty. Gen., et al. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235, 1243 (11th
Cir. 2011) (holding that at least one plaintiff had standing to challenge provisions of ACA that
would not take effect until January 1, 2014), reversed in part on other grounds by Natl Fedn of
Indep. Bus. et al. v. Sebelius, 132 S. Ct. 2566 (June 28, 2012). In fact, the defendants there
which are the same parties being sued here conceded on appeal that the individual plaintiffs
had standing to contest the constitutionality of the ACAs individual mandate. Florida ex rel.
Atty. Gen., 648 F.3d at 1243. (Notably, the government does not contest the standing of the
individual plaintiffs or of the NFIB to challenge the individual mandate.). Since standing is a
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jurisdictional requirement that cannot be waived by the parties, see United States v. Hays, 515
U.S. 737, 742 (1995), this concession could not properly have been the basis for the Courts
finding that the claims were justiciable.
Rather, the court independently concluded that the
allegations of injury satisfied the injury-in-fact requirement even though the challenged
provisions would not take effect until 2014. See Florida ex rel. Atty. Gen., 648 F.3d at 1243.
The time until the rule may be enforced in this case, furthermore, is short in comparison
with other cases in which courts have found standing. The Supreme Court has allowed plaintiffs
to proceed when challenging laws that would not take effect for three and even six years (or
thereabouts). See New York v. United States, 505 U.S. 144, 153-54 (1992); Pierce v. Socy of
Sisters, 268 U.S. 510, 530, 536 (1925).
Thus, postponing enforcement of the challenged
regulation against Plaintiff until January 2014 does not defeat standing here. See Seven-Sky v.
Holder, 661 F.3d 1, 4 (D.C. Cir. 2011) (addressing validity of ACA provision that becomes
effective in January 2014), abrogated by Natl Fedn of Indep. Bus., 132 S. Ct. 2566.
Because the Court holds that the temporary-enforcement safe harbor does not render the
alleged injury too remote to constitute an injury, it need not reach Plaintiffs alternative argument
that the safe harbor cannot destroy standing because it is not binding and could be abandoned at
any point. See Opp. at 15-16.
3. Advance Notice of Proposed Rulemaking
While the imminent end of the safe harbor provides Plaintiff with an injury, this does not
terminate the analysis. Defendants argue that the alleged injury is nonetheless too speculative to
confer standing given the governments clear intention to amend the regulations before the safe
harbor lapses in order to accommodate organizations with religious objections to contraception.
They are correct. The underlying purpose of the imminence requirement is to ensure that the
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court in which suit is brought does not render an advisory opinion in a case in which no injury
would have occurred at all. Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C. Cir.
1994) (quoting Lujan, 504 U.S. at 564 n.2). This is precisely the type of case where concerns
about premature judicial intervention come into play.
Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing.
Contrary to Plaintiffs assertions, however, Defendants have done more than simply open
another docket to propose addressing related matters.
Opp. at 18 (citing Am. Bird
Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) ([A]gencies cannot avoid
judicial review of their final actions merely because they have opened another docket that may
address some related matters.)). They have published their plan to amend the rule to address the
exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal
Register that they intend to finalize the changes before the enforcement safe harbor ends. See 77
Fed. Reg. 8725, 8728, 16502-03. Not only that, but Defendants have already initiated the
amendment process by issuing an ANPRM.
See 77 Fed. Reg. 16503.
The government,
moreover, 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. See Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009) (Without
evidence to the contrary, we assume that formally announced changes to official governmental
policy are not mere litigation posturing.); see also Comcast Corp. v. F.C.C., 526 F.3d 763, 769
n.2 (D.C. Cir. 2008) (We must presume an agency acts in good faith.) (citing Thomas v.
Baker, 925 F.2d 1523, 1525 (D.C. Cir. 1991)); Adair v. England, 183 F. Supp. 2d 31, 60 (D.D.C.
2002) (government officials are presumed to act in good faith .... [P]laintiff must present well-
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nigh irrefragable proof of bad faith or bias on the part of governmental officials in order to
overcome this presumption) (internal quotations and citation omitted).
Because an amendment to the final rule that may vitiate the threatened injury is not only
promised but underway, the injuries alleged by Plaintiff are not certainly impending.
See
Whitmore v. Arkansas, 495 U.S. at 158. Plaintiff consequently lacks standing to bring its claims
at this juncture, and the Court must thus dismiss the case for lack of subject-matter jurisdiction.
B. Ripeness
Defendants likewise contend that the claims in the Amended Complaint are not ripe for
adjudication. Although the Court need not address this argument having already decided that
Plaintiff has not satisfied the standing requirements it is nevertheless worthwhile to do so as
ripeness implicates many of the same concerns underlying the Courts standing analysis. See
Am. Petroleum Inst. v. Envtl. Prot. Agency, --- F.3d ----, 2012 WL 2053572, at *3 (D.C. Cir.,
June 8, 2012) (noting that part of ripeness doctrine is subsumed into the Article III requirement
of standing); Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999)
(ripeness doctrine not always clearly separable from standing).
Indeed, many of Plaintiffs
arguments with respect to standing rely on cases addressing ripeness. See, e.g., Opp. at 17
(citing Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990), in its standing
argument for proposition that possibility of unforeseen amendments does not render a challenge
unripe), id. at 15 (arguing for standing based on case that found claim ripe under allegedly
similar circumstances).
At its foundation, ripeness is about whether a federal court can or should decide a case.
Am. Petroleum Inst., 2012 WL 2053572, at *3. The doctrines purpose 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
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interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967).
The requirement that a claim be ripe derives both from Article III limits on justiciability and
from prudential considerations that counsel against exercising jurisdiction. See Reno v. Catholic
Social Services, Inc., 509 U.S. 43, 57 n.18 (1993); see also Full Value Advisors, LLC v. S.E.C.,
633 F.3d 1101, 1106
(D.C. Cir. 2011) (Because of the prudential considerations which
innervate the ripeness doctrine, at times, we dismiss[ ] even if there is not a constitutional bar to
the exercise of our jurisdiction.) (quoting Wyo. Outdoor Council, 165 F.3d at 48). It ensures
that Article III courts make decisions only when they have to, and then, only once.
Am.
Petroleum Inst., 2012 WL 2053572, at *4 (citing Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir.
2007); Pub. Citizen Health Research Grp. v. FDA, 740 F.2d 21, 3031 (D.C. Cir. 1984)).
To assess whether a claim is ripe, courts consider two factors: the fitness of the issues
for judicial decision and the hardship to the parties of withholding court consideration. Abbott
Laboratories, 387 U.S. at 149; see also Pfizer Inc. v. Shalala, 182 F.3d 975, 978 (D.C. Cir. 1999).
These twin prongs seek to balance [the courts] interest in deciding the issue in a more concrete
setting against the hardship to the parties caused by delaying review. Atlantic Richfield Co. v.
United States Dep't of Energy, 769 F.2d 771, 783 (D.C. Cir. 1984) (citation omitted). If a court
determines that a claim is fit for judicial resolution, the [lack of] hardship cannot tip the balance
against judicial review. Natl Assn of Home Builders v. U.S. Army Corps of Engrs, 440 F.3d
459, 465 (D.C. Cir. 2005) (citation omitted). A showing of hardship to the parties can,
however, outweigh[] the competing institutional interests in deferring review. Eagle-Picher
Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).
1. Fitness
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In a review of agency action, the requirement that a claim be fit for judicial resolution is
primarily meant to protect the agency's interest in crystallizing its policy before that policy is
subjected to judicial review and the court's interests in avoiding unnecessary adjudication and in
deciding issues in a concrete setting. Am. Petroleum Inst., 2012 WL 2053572, at *4 (quoting
Wyo. Outdoor Council, 165 F.3d at 49 (internal quotation marks omitted)). A claim satisfies the
fitness requirement only if it is essentially legal and sufficiently final. International Union,
United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 249 (D.C.
Cir. 1986).
The Court will consider the finality prong first, as it is at the heart of the parties dispute.
In evaluating that criterion, the Court must decide whether the regulations requiring non-exempt,
non-grandfathered plans to cover the full range of contraceptive services in the HRSA guidelines
are final enough for the Court to address the merits of Plaintiffs challenge. While the Court is
mindful that the Supreme Court has instructed lower courts to apply the finality requirement in a
flexible and pragmatic manner, see Abbott Laboratories, 387 U.S. at 149-50, it nevertheless
recognizes that courts should decline to review tentative agency positions. Am. Petroleum
Inst., 2012 WL 2053572, at *4. To do so would severely compromise[] the interests the
ripeness doctrine protects, including the interests in affording an agency the opportunity to
apply its expertise and to correct errors and in conserving judicial resources. Id. (quoting Pub.
Citizen Health Research, 740 F.2d at 31).
The Courts task, therefore, is to determine whether the ANPRM in conjunction with
Defendants promises to issue amended regulations render the final rules tentative for purposes
of the ripeness inquiry. The D.C. Circuit recently had occasion to assess ripeness under a similar
set of facts. In American Petroleum Institute, Plaintiff, a trade association, sought judicial
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review of a final rule issued by the EPA in 2008 deregulating hazardous secondary
materials. See 2012 WL 2053572, at *1-2. In issuing that rule, the EPA explicitly declined to
deregulate a category of materials called spent refinery catalysts, electing instead to address the
catalysts in a separate proposed rulemaking. Id. at *2. The American Petroleum Institute filed
a suit challenging that decision, and in July 2011, shortly after the parties had fully briefed the
merits of the case, the EPA published a notice of proposed rulemaking that would revise the
2008 rule and deregulate the catalysts. If the proposed rule were finalized without revision, the
case would go[] away without the need for judicial review. Id. at *4.
The D.C. Circuit concluded that the case was not ripe because, although the 2008
regulation was a final rule, the EPAs position on the policy being challenged was tentative.
See id. Central to the Courts analysis was the fact that the proposed rulemaking might obviate
the need for judicial review. See id. (In light of the July 2011 proposed rule, though, [i]f we do
not decide [the issue] now, we may never need to.) (quoting Nat'l Treasury Emps. Union v.
U.S., 101 F.3d 1423, 1431 (D.C. Cir. 1996)); see also Devia v. NRC, 492 F.3d 421, 424 (D.C.
Cir. 2007) (when an agency decision may never have its effects felt in a concrete way by the
challenging parties, the prospect of entangling ourselves in a challenge to such a decision is an
element of the fitness determination as well) (internal citation and quotation marks omitted).
The Court also emphasized that the rulemaking process would provide the plaintiff with a
chance to convince the EPA to change its mind. Id. Given that the Court could not know what
shape the final rule would take, it determined that it would be best to withhold review until the
matter was settled. Id. If the new rulemaking did not ultimately resolve the plaintiffs claims,
the Court reasoned that it would at least narrow the legal issues involved and provide a more
final and concrete setting for deciding any issues left on the table. Id.
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The same rationale applies in this case. Just as in American Petroleum Institute, the
Court has before it a challenge to final regulations that Defendants have promised to amend.
Defendants have taken the first step toward amending the rules by issuing an ANPRM. While
the Advance Notice of Proposed Rulemaking is a more preliminary step than the Notice of
Proposed Rulemaking that was issued in American Petroleum Institute, they serve the same
purpose in this ripeness inquiry: both announce the agencys intention to modify an existing
regulation and invite public comments that will ultimately inform the drafting of the final
amendment. See 77 Fed. Reg. 16503; Am. Petroleum Inst., 2012 WL 2053572, at *2-3. The
Advance Notice simply allows the agency to receive comments from interested parties before
publishing a proposed rule. See 77 Fed. Reg. 16507-08 (stating that the ANPRMs comment
period is designed to inform the notice of proposed rulemaking and that [t]he subsequent
notice of proposed rulemaking will also include a public comment period). The Court thus
concludes for the same reasons offered in American Petroleum that the Departments
position on the policy at issue remains indeterminate. Because the interest in postponing review
is powerful when the agency position is tentative, Ciba-Geigy Corp v. EPA, 801 F.2d 430, 436
(D.C. Cir. 1986), the Court holds that the challenged rule is not sufficiently final to satisfy the
fitness prong of the ripeness inquiry. See also Full Value Advisors, 633 F.3d at 1107 (A claim
is not ripe where the possibility that further consideration will actually occur before
[implementation] is not theoretical, but real.) (quoting Ohio Forestry Ass'n, Inc. v. Sierra Club,
523 U.S. 726, 735 (1998)).
Plaintiff maintains that its claims are ripe for judicial review because, even if the
proposed amendment is finalized, Plaintiff will not be able to comply without violating its
religious beliefs about contraception. See Opp. at 18. This argument assumes, however, that a
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particular approach described in the ANPRM which would require health-insurance issuers to
offer group plans without contraceptive coverage to organizations with religious objections while
simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries
covered under the organization's plan with no cost sharing, see 77 Fed. Reg. 16503 will make
it into the final rule.
Such an assumption is speculative.
The ANPRM merely presents
questions and ideas to help shape discussions regarding how best to accommodate organizations
with religious objections to contraceptive coverage. Id.
The Notice specifically states that it
seeks input on the options it proposes as well as new ideas to inform the next stage of the
rulemaking process. Id. (emphasis added). The rulemaking process is still in its early stages,
and the contents of the final amendment have not yet been decided. It would thus be premature
to find that the amendment will not adequately address Plaintiffs concerns.
Plaintiff argues, in addition, that if the Court allows a Notice of Proposed Rulemaking to
render an action for administrative review non-justiciable, agencies could avoid judicial review
simply by issuing NPRs whenever a legal challenge is brought against the agency. Opp. at 1718. The D.C. Circuit also addressed that concern in American Petroleum. See 2012 WL
2053572, at *5. While acknowledging the potential for agencies to abuse the notice process, the
court found that that risk was not present in that case because the EPAs proposed rule was
clearly not some non-substantive, thinly veiled attempt to evade review. Id. The Court also
emphasized that the proposed rulemaking in that case had a definite end date (imposed by
conditions of a related settlement agreement), thereby preventing the agency from averting
judicial scrutiny indefinitely.
While the circumstances are slightly less favorable to the agency here, they nevertheless
counsel the same result. The ideas and questions raised in the ANPRM appear to be the product
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of significant research and deliberation, see 77 Fed. Reg. 16501-01 (citing findings of actuaries
and experts and referencing consultations with interested parties), and although there is not an
externally imposed deadline on the rulemaking as there was in American Petroleum, the
expiration of the enforcement safe harbor operates in a similar manner. Even though the safe
harbors end date was set by the agency, the agency has published it in the Federal Register and
has formally committed to amending the rule before the safe harbor expires, thereby creating
external accountability for the agencys self-imposed deadline. See 77 Fed. Reg. 8728-29,
16503. If the agency fails to amend the exemption from the contraceptive-coverage provision by
the time the safe harbor lapses, Plaintiff will be free to renew its challenge to the rule at that
time. The Court, therefore, finds that the agencys position is not sufficiently final to render the
regulation fit for judicial review.
Because prudential considerations counsel against reaching the merits of Plaintiffs
claims at this stage, the Court need not evaluate whether the suit presents a purely legal
question. This Circuit has previously held that courts should refrain from intervening into
matters that may best be reviewed at another time or in another setting, even if the issue
presented is purely legal and otherwise fit for review. See Full Value Advisors, 633 F.3d
at 1106 (quoting Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1382 (D.C. Cir.
1996) (internal quotation and citation omitted)). Judicial restraint is particularly warranted
where, as here, the issue is one of constitutional import and its uncertain nature might
affect a courts ability to decide intelligently. Id. (citing Connecticut v. Duncan, 612 F.3d 107,
114 (2d Cir. 2010); La. Envtl. Action Network, 87 F.3d at 1382); see also Am. Compl., 13280 (raising First Amendment claims).
2. Hardship
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The only remaining question then is whether Plaintiff faces any hardship that would
outweigh the Courts interest in deferring review until the agencys position on exemptions to the
contraceptive-coverage requirement is settled. See Vill. of Bensenville v. FAA, 376 F.3d 1114,
1119 (D.C. Cir. 2004) (courts must consider the hardship to the parties of withholding court
consideration) (quoting Abbott Laboratories, 387 U.S. at 149); see also Blanchette v. Conn.
Gen. Ins. Corps., 419 U.S. 102, 138 (1974); Harris v. FAA, 353 F.3d 1006, 101112 (D.C. Cir.
2004). In evaluating this consideration, courts are not to look to direct hardship, but rather [to]
whether postponing judicial review would impose an undue burden on [the parties] or would
benefit the court. Harris, 353 F.3d at 1012 (quotation marks omitted); see also Bensenville, 376
F.3d at 1120; AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C. Cir. 2003).
Plaintiff contends that postponing judicial review will impose a hardship because it must
immediately begin planning for the possibility that it will be forced to give up its health
insurance plan in 2014 (on account of its religious beliefs) and pay government fines. See Opp.
at 28 (citing Am. Compl., 3, 76, 92). Costs stemming from Plaintiffs desire to prepare for
contingencies are not sufficient, however, to constitute a hardship for purposes of the ripeness
inquiry particularly when the agencys promises and actions suggest the situation Plaintiff fears
may not occur. See Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987); Tennessee Gas
Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (plaintiffs planning insecurity
insufficient to establish hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162 (7th Cir.
1976) ([C]laims of uncertainty in [plaintiffs] business and capital planning are not sufficient to
warrant [] review of an ongoing administrative process.).
Plaintiff argues, in addition, that a delay in judicial review puts it at risk of third-party
lawsuits, which the safe harbor does not bar. See Opp. at 28-29. While that may be true, the
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theoretical possibility of future hardship arising from the Courts decision to withhold review
until the agencys position is settled does not overcome the finding that the case is not yet fit
for judicial resolution. See Salvation Army v. Dept of Cmty. Affairs of New Jersey, 919 F.2d
183, 193 (3d Cir. 1990) (theoretical possibility of a suit against [plaintiff] by a program
beneficiary insufficient to establish jurisdiction).
At the end of the day, the Court offers no opinion on the merits of the current
contraception-coverage regulations or any proposed future ones. If Plaintiff is displeased by the
ultimate regulations, it may certainly renew its suit at that time. All the Court holds here is that
Belmont has no basis to proceed now.
IV.
Conclusion
For the foregoing reasons, the Court will issue a contemporaneous Order granting
Defendants Motion to Dismiss.

JAMES E. BOASBERG
Date: July 18, 2012
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Case 1:11-cv-01989-JEB Document 30-1 Filed 07/23/12 Page 1 of 2
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WHEATON COLLEGE,
)
)
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.
)
)
Case No. 1:12-cv-01169
DECLARATION OF MARK L. RIENZI

I, Mark L. Rienzi, under 28 U.S.C. 1746, declare as follows:
1.
I am an attorney at the Becket Fund for Religious Liberty, which is a non-profit,
non-partisan religious liberties law firm. I am a member of the bar of this Court and counsel for
Plaintiff Wheaton College (Wheaton) in the above-captioned case. I have practiced law for
twelve years.
2.
On Wednesday, August 8, 2012, pursuant to this Courts instructions, I conferred
with Sheila Lieber and Michelle Bennett, counsel for Defendants, about Defendants position
concerning Plaintiffs preliminary injunction motion.
2
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3.
During that conference, Ms. Lieber and Ms. Bennett indicated Defendants belief
that Wheaton is eligible for the temporary enforcement safe harbor, which protects Wheaton
from government enforcement of the relevant mandate. Ms. Lieber and Ms. Bennett also stated
their expectation that a new safe harbor guidance document would issue shortly explaining that
institutions in Wheatons position will be eligible for the safe harbor.
4.
I asked Ms. Lieber and Ms. Bennett whether Defendants would also agree that the
relevant mandate does not apply to Wheaton during the safe harbor. I expressed my concern that
the safe harbor only stops government enforcement of the mandate but leaves Wheaton exposed
to private enforcement.
5.
Ms. Lieber responded that the Defendants would not agree that the mandate does
not apply to Wheaton during the safe harbor. Ms. Lieber explained that Defendants do not believe the threat of private enforcement is sufficient to create standing, and that Wheaton can raise
its religious liberties arguments in defense of private suits if and when they are filed.
I declare under penalty of perjury that the foregoing is true and correct.
_____________________________
Mark L. Rienzi
3
JA 107


Plaintiff,
v.

Services, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER

On July 18, 2012, this Court held that it lacked subject-matter jurisdiction to hear
Plaintiff Belmont Abbeys challenge to contraceptive-coverage regulations issued by
Defendants. It accordingly dismissed the instant action without prejudice. On July 23, Belmont
Abbey moved for reconsideration under Federal Rule of Civil Procedure 59(e), arguing first that
the threat of private lawsuits satisfies the injury requirement for both standing and ripeness
purposes and, second, that the rules are fit for judicial review because they are final and will
expose Belmont Abbey to liability beginning in January 2013. As Belmonts Motion simply
restates arguments already presented to the Court in its Opposition to Defendants Motion to
Dismiss without offering previously unavailable evidence or showing manifest error or
injustice the Court will deny the Motion.
I.
Legal Standard
Rule 59(e) permits the filing of a motion to alter or amend a judgment when such motion
is filed within 28 days after the judgments entry. The court must apply a stringent standard
when evaluating Rule 59(e) motions. Ciralsky v. CIA, 355 F.3d 661, 673 (D.C. Cir. 2004). A
JA 108
Rule 59(e) motion is discretionary and need not be granted unless the district court finds that
there is an intervening change of controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice. Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996) (quoting Natl Trust v. Dept of State, 834 F. Supp. 453, 455 (D.D.C. 1993));
see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. 2810.1 (2d ed. 1995) (four basic
grounds for Rule 59(e) motion are manifest errors of law or fact, newly discovered or
previously unavailable evidence, manifest injustice, and intervening change in controlling
law). Rule 59(e), moreover, is not a vehicle to present a new legal theory that was available
prior to judgment. Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012).
II.
Analysis
In its Motion for Reconsideration, Belmont Abbey asks this Court to revisit the same
arguments it just rejected. First, Plaintiff contends that even if the safe harbor will protect
Belmont from government enforcement of the challenged regulations, it faces imminent injury
from the threat of private-party suits to enforce the contraceptive-coverage Mandate. See Mot. at
3 (Defendants exposure of Belmont Abbey College to additional ERISA lawsuits beginning in
January 2013 under the existing final rule is an imminent injury, sufficient for both standing and
ripeness purposes.) (citing Chamber of Commerce of U.S. v. F.E.C., 69 F.3d 600, 603 (D.C.
Cir. 1995)). Belmont raised precisely the same point in its earlier Opposition, as it openly
acknowledges in the current Motion. See Mot. at 3 (As set forth in Plaintiffs Opposition to the
Motion to Dismiss at 28-29, by virtue of enacting the Rule, the Defendants have exposed
Belmont Abbey to private lawsuits seeking to enforce compliance with the Mandate under
ERISA.) (citing 29 U.S.C. 1185d(a)(1), 1132(a)(1)(B)); see also Opp. at 29 ([E]ven without
enforcement by Defendants, Belmont Abbey would still be subject to enforcement by its plan
JA 109
participants and beneficiaries under ERISA). The Supreme Court has made clear that a Rule
59(e) motion may not be used to relitigate old matters. Exxon Shipping Co. v. Baker, 554
U.S. 471, 486 n.5 (2008) (quoting 11 Wright & Miller, Federal Prac. & Proc. Civ. 2810.1). By
simply re-raising arguments set forth in its Opposition, that is exactly what Belmont seeks to do.
On this go-round, unlike in its Opposition, Belmont attaches a declaration and eight
EEOC Determination Letters to its Motion, indicating that it has been the subject of several EEO
complaints regarding its denial of contraceptive benefits. See Mot., Decl. & Exhs. 1-8. As a
preliminary matter, these complaints do not relate to the Affordable Care Acts regulations at all;
on the contrary, they arise under a completely different statute Title VIIs sex-discrimination
provisions. In addition, this evidence can hardly be considered newly available. See Firestone,
76 F.3d at 1208. Indeed, all the EEOC letters are dated July 30, 2009, and thus existed for nearly
three years before Belmont filed its Opposition to Defendants Motion to Dismiss. Id. The
Complaints reference to employee complaints to the EEOC [and] an EEOC investigation
regarding contraceptive coverage, moreover, reveals that Plaintiff was well aware before filing
its Opposition that evidence of this kind existed. See Compl., 32; Am. Compl., 31. Since
Rule 59(e) is not a vehicle for present[ing] evidence that could have been raised prior to the
entry of judgment, Exxon Shipping, 554 U.S. at 486 n.5 (quoting 11 Wright & Miller, Federal
Prac. & Proc. Civ. 2810.1), and Belmont has not offered any reason why it could not have
submitted these documents with its Opposition, the Court will not retread old ground.
Second, Belmont Abbey disputes the Courts ruling that the regulations are not fit for
judicial review at this time. See Mem. Op. at 20 (challenged rule not sufficiently final to satisfy
fitness prong of ripeness inquiry). In essence, Belmont contends that the contraceptive-coverage
Mandate is a final rule that will expos[e] Belmont to liability starting on January 1, 2013
JA 110
the effective date of its first plan year to begin on or after August 1, 2012.
Mot. at 6, 7; 42
U.S.C. 300gg-13(b); 76 Fed. Reg. 46623; Am. Compl., 33.

Two arguments both of which were raised earlier are subsumed within this
contention. First, the exposure portion is a variation of the argument discussed above with
respect to private-party enforcement actions. Even though the safe harbor will protect Belmont
Abbey from government enforcement until January 2014, Plaintiff maintains that the regulations
are subject to judicial scrutiny now because it could face private suits as early as January of next
year. See id. The Court already addressed this argument in its Opinion, finding that the
Departments position on contraceptive coverage by certain organizations with religious
objections remained in flux and that the interest in postponing review under these circumstances
outweighed any hardship Plaintiff might face on account of the delay. See Mem. Op. at 23-24.
Since Plaintiff has neither offered newly discovered evidence nor shown manifest error or an
intervening change in the law, the Courts decision on this point will stand. See Firestone, 76
F.3d at 1208.
The second component of Belmonts fitness argument is that the regulations that
require health plans to cover all FDA-approved contraceptive methods are final and thus fit for
judicial review now. See Mot. at 6-7. This argument was raised by Belmont in its previous
Opposition and subsequently considered and rejected by this Court. See Opp. at 21 (contending
that the Mandate, which was adopted as final rule without change, is truly final for purposes
of the ripeness doctrine) (emphasis in original); Mem. Op. at 19-20 (holding that the
Departments position on the contraceptive-coverage Mandate remains tentative and is therefore
insufficiently final for judicial review). Since the Court has already addressed this contention in
depth in its Opinion and Belmont has failed to articulate a legitimate basis for reconsideration
JA 111
here, the Court need not revisit the merits of the argument. See Exxon Shipping Co. v. Baker,
554 U.S. at 486 n.5 (Rule 59(e) Motion may not be used to relitigate old matters.) (internal
citation omitted).
Even if the Court were to look once again at the arguments in Belmonts Motion, such
inquiry would not change the outcome of the case, let alone show manifest error or injustice.
The threat of future litigation is inadequate to satisfy the imminent-injury component of the
standing doctrine.
See City of Orville v. FERC, 147 F.3d 979, 987 (D.C. Cir. 1998)
(Allegations of injury based on predictions regarding future legal proceedings are too
speculative to invoke the jurisdiction of an Article III Court.) (quoting Platte River Whooping
Crane Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992)) (alteration
in original); see also Salvation Army v. Dept of Cmty. Affairs of New Jersey, 919 F.2d 183, 193
(3d Cir. 1990) (theoretical possibility of a suit against [plaintiff] by a program beneficiary
insufficient to establish jurisdiction).
Belmonts argument regarding the specter of private litigation, moreover, is less
persuasive today than it was at the time of the Courts initial ruling. Since this Court granted
Defendants Motion to Dismiss in July, another judge in this District dismissed a similar case on
jurisdictional grounds. See Wheaton College v. Sebelius, et al., --- F. Supp. 2d ----, 2012 WL
3637162 (D.D.C. Aug. 24, 2012).
In that case, Wheaton College, a Christian educational
institution, challenged the same contraceptive-coverage regulations at issue here. Judge Ellen
Huvelle found that Wheaton had failed to establish standing, holding among other things that its
exposure to private enforcement actions did not constitute actual or imminent injury. Id. at
*5 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
JA 112
Wheaton likewise agreed with this Court that the regulations are not ripe for judicial
review because the agencys position on the contraceptive-coverage requirement remains
tentative. Id. at *8 (Because they are in the process of being amended, see 77 Fed.Reg. at
16,501 (ANPRM), the preventive services regulations are by definition a tentative agency
position in which the agency expressly reserves the possibility that its opinion might change.)
(citations omitted); accord Nebraska ex. rel. Bruning v. U.S. Dept. of Health and Human
Services, --- F. Supp. 2d ----, 2012 WL 2913402, at *22 (D. Neb., July 17, 2012) (Plaintiffs
claims unripe due to tentative nature of Departments position on religious accommodations to
the ACAs contraceptive coverage requirements). Belmonts Motion does not provide any
indication that the Departments plans to amend the regulations have changed since this Court
dismissed its case. The Court, accordingly, finds no basis for revisiting its earlier ruling that the
regulations do not satisfy the finality prong of the ripeness analysis.
III.
Conclusion
For the foregoing reasons, the Court ORDERS that Plaintiffs Motion for
Reconsideration is DENIED.

JAMES E. BOASBERG
Date: September 5, 2012
JA 113

)
)
Plaintiff,
)
)
v.
)
)
)
)
)
STATES DEPARTMENT
)
OF HEALTH AND HUMAN
)
)
)
)
)
)
)
Defendants.
)
____________________________________)
Civ. Action No. 1:11-cv-01989-JEB
NOTICE OF APPEAL
Notice is hereby given this 14th day of September, 2012, that Plaintiff Belmont Abbey
College hereby appeals to the United States Court of Appeals for the District of Columbia
Circuit from this Courts July 18, 2012, Order granting Defendants motion to dismiss and
dismissing this action without prejudice (Dkt. 28), and from this Courts September 5, 2012,
Order denying Plaintiffs Motion for Reconsideration (Dkt. 36).
September 14, 2012
Respectfully submitted,
s/Mark L. Rienzi________________
Mark L. Rienzi (DC Bar No. 494336)
S. Kyle Duncan (LA Bar No. 25038)
(admitted pro hac vice)
Lori Halstead Windham (DC Bar No. 501838)
JA 114
Eric N. Kniffin (DC Bar No. 999473)

The Becket Fund for Religious Liberty
3000 K St. NW, Suite 220
(202) 955-0095
(202) 955-0090 (fax)
mrienzi@becketfund.org
Counsel for Plaintiff
2
JA 115
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Courts ECF
system on September 14, 2012, and was thereby electronically served on counsel for Defendants.
s/ Mark L. Rienzi______________
Mark L. Rienzi
3
JA 116
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1 of 6
APPEAL,CLOSED,JURY,TYPE-L
U.S. District Court

District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:12-cv-01169-ESH
WHEATON COLLEGE v. SEBELIUS et al

Assigned to: Judge Ellen S. Huvelle
Case in other court: 12-05273
Cause: 42:2000 Religion
Date Filed: 07/18/2012

Date Terminated: 08/24/2012
Jury Demand: Plaintiff
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government Defendant
Plaintiff
WHEATON COLLEGE
represented by Eric Nieuwenhuis Kniffin

THE BECKET FUND
3000 K Street, NW
Suite 220
(202) 349-7210
Email: ekniffin@becketfund.org
LEAD ATTORNEY
Lori H. Windham
THE BECKET FUND
3000 K. Street, NW
Suite# 220
(202) 349-7202
Email: lwindham@becketfund.org
LEAD ATTORNEY
Mark L. Rienzi
LIBERTY
3000 K Street, NW
Suite 220
(202) 507-0834
Email: mrienzi@becketfund.org
LEAD ATTORNEY
Stuart Kyle Duncan
JA 124
9/24/2012 11:10 AM
2 of 6

LIBERTY
3000 K St. NW
Suite 220
(202) 349-7209
Email: kduncan@becketfund.org
PRO HAC VICE
V.
Defendant
KATHLEEN SEBELIUS
of Health and Human Services

Civil Division, Federal Programs Branch
(202) 305-8902
Email: michelle.bennett@usdoj.gov
LEAD ATTORNEY
Defendant
HEALTH AND HUMAN SERVICES

LEAD ATTORNEY
Defendant
HILDA SOLIS
of Labor

LEAD ATTORNEY
Defendant
LABOR

LEAD ATTORNEY
Defendant
TIMOTHY GEITHNER
of the Treasury

LEAD ATTORNEY
JA 125
9/24/2012 11:10 AM
3 of 6
Defendant
THE TREASURY

LEAD ATTORNEY
Date Filed
07/18/2012
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090-3006350)
filed by WHEATON COLLEGE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons
Kathleen Sebelius, # 3 Summons US Department of Health and Human Services, # 4
Summons Hilda Solis, # 5 Summons US Department of Labor, # 6 Summons Timothy
Geithner, # 7 Summons US Department of the Treasury)(Kniffin, Eric) (Entered:
07/18/2012)
07/18/2012
Docket Text
Case Assigned to Judge Ellen S. Huvelle. (sth, ) (Entered: 07/18/2012)
07/18/2012
2 Electronic Summons (6) Issued as to TIMOTHY GEITHNER, KATHLEEN

STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Summons, # 2
Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)(sth, ) (Entered:
07/18/2012)
07/23/2012
3 NOTICE of Appearance by Mark L. Rienzi on behalf of WHEATON COLLEGE

(Rienzi, Mark) (Entered: 07/23/2012)
08/01/2012
4 MOTION for Preliminary Injunction by WHEATON COLLEGE (Attachments: # 1

Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5
Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Rienzi, Mark) (Entered:
08/01/2012)
08/02/2012
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- S. Kyle Duncan, :FirmThe Becket Fund, :Address- 3000 K St. NW, Ste. 220, Washington, DC 20007. Phone
No. - 202-349-7209. Fax No. - 202-955-0090 by WHEATON COLLEGE
(Attachments: # 1 Declaration)(Kniffin, Eric) (Entered: 08/02/2012)
08/03/2012
MINUTE ORDER: it is hereby ORDERED that 5 Motion for Leave to Appear Pro Hac
Vice is GRANTED; and it is further ORDERED that S. Kyle Duncan is admitted pro
hac vice for the purpose of appearing in open court in the above-captioned case subject
to his applying for admission to the Bar of this Court upon the granting of his pending
application for admission to the District of Columbia Bar. Signed by Judge Ellen S.
Huvelle on August 3, 2012. (AG) (Entered: 08/03/2012)
08/03/2012
6 SCHEDULING ORDER: Defendants' motion is due by 8/10/2012 at 12 p.m., plaintiff's

opposition is due by 8/16/2012, and defendants' reply is due by 8/20/2012. Motion
hearing set for 8/23/2012 at 2:30 p.m. in Courtroom 23A before Judge Ellen S. Huvelle.
Signed by Judge Ellen S. Huvelle on August 3, 2012. (lcesh1) (Entered: 08/03/2012)
JA 126
9/24/2012 11:10 AM
4 of 6
08/03/2012
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone
Conference held in Chambers on 8/3/2012. (gdf) (Entered: 08/03/2012)
08/07/2012

KATHLEEN SEBELIUS served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
08/07/2012

STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on
7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
08/07/2012
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA

SOLIS served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
08/07/2012

STATES DEPARTMENT OF LABOR served on 7/24/2012 (Kniffin, Eric) (Entered:
08/07/2012)
08/07/2012

TIMOTHY GEITHNER served on 7/25/2012 (Kniffin, Eric) (Entered: 08/07/2012)
08/07/2012

STATES DEPARTMENT OF THE TREASURY served on 7/25/2012 (Kniffin, Eric)
(Entered: 08/07/2012)
08/07/2012
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the

United States Attorney. Date of Service Upon United States Attorney on 7/24/2012.
Answer due for ALL FEDERAL DEFENDANTS by 9/22/2012. (Kniffin, Eric)
(Entered: 08/07/2012)
08/07/2012
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United

States Attorney General. Date of Service Upon United States Attorney General
07/24/2012. (Kniffin, Eric) (Entered: 08/07/2012)
08/09/2012
15 NOTICE of Appearance by Lori H. Windham on behalf of WHEATON COLLEGE

(Windham, Lori) (Entered: 08/09/2012)
08/10/2012
16 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants

08/10/2012
17 MOTION to Dismiss for Lack of Jurisdiction by TIMOTHY GEITHNER, KATHLEEN

STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in
Support, # 2 Declaration of Michael Hash, # 3 Exhibit 1 to Hash Declaration, # 4 Text
of Proposed Order)(Bennett, Michelle) (Entered: 08/10/2012)
08/16/2012
18 Memorandum in opposition to re 17 MOTION to Dismiss for Lack of Jurisdiction filed

by WHEATON COLLEGE. (Attachments: # 1 Exhibit A)(Rienzi, Mark) (Entered:
08/16/2012)
08/20/2012
19 REPLY to opposition to motion re 17 MOTION to Dismiss for Lack of Jurisdiction

filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED
STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES
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9/24/2012 11:10 AM
5 of 6

TREASURY. (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 08/20/2012)
08/23/2012
Minute Entry for Proceedings held before Judge Ellen S. Huvelle: Motion Hearing held
on 8/23/2012 re: 17 MOTION to Dismiss for Lack of Jurisdiction. Motion was Heard
and Taken Under Advisement. (Court Reporter: Scott Wallace) (jth) (Entered:
08/23/2012)
08/24/2012
20 MEMORANDUM OPINION re 17 defendants' motion to dismiss. Signed by Judge

Ellen S. Huvelle on August 24, 2012. (lcesh1) (Entered: 08/24/2012)
08/24/2012
21 ORDER granting 17 defendants' motion to dismiss, and denying as moot 4 plaintiff's

motion for a preliminary injunction. Signed by Judge Ellen S. Huvelle on August 24,
2012. (lcesh1) (Entered: 08/24/2012)
08/29/2012
22 ENTERED IN ERROR.....NOTICE of Appeal by WHEATON COLLEGE re 21 Order

on Motion for Preliminary Injunction, Order on Motion to Dismiss/Lack of Jurisdiction,
20 Memorandum & Opinion (Rienzi, Mark) Modified on 8/29/2012 (jf, ). (Entered:
08/29/2012)
08/29/2012
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 22 NOTICE of

Appeal was entered in error and counsel was instructed to refile said pleading under the
correct category (Appeal Documents Event). (jf, ) (Entered: 08/29/2012)
08/29/2012
23 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 21 Order on Motion for

Preliminary Injunction, Order on Motion to Dismiss/Lack of Jurisdiction, 20
Memorandum & Opinion by WHEATON COLLEGE. Filing fee $ 455, receipt number
0090-3052669. Fee Status: Fee Paid. Parties have been notified. (Rienzi, Mark)
(Entered: 08/29/2012)
08/30/2012
24 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court
of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC
Circuit Court,. (jf, ) (Entered: 08/30/2012)
08/30/2012
25 **CORRECTED**Transmission of the Notice of Appeal, Order Appealed, and Docket

Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice
of Appeal to DC Circuit Court,. (jf, ) (Entered: 08/30/2012)
09/07/2012
USCA Case Number 12-5273 for 23 Notice of Appeal to DC Circuit Court, filed by
WHEATON COLLEGE. (jf, ) (Entered: 09/07/2012)
09/12/2012
26 ORDER of USCA as to 23 Notice of Appeal to DC Circuit Court, filed by WHEATON

COLLEGE; ORDERED that the motion be granted. USCA Case Number 12-5273.
(md, ) (Entered: 09/14/2012)
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Case 1:12-cv-01169 Document 1 Filed 07/18/12 Page 1 of 32

WHEATON COLLEGE
501 College Avenue
Wheaton, IL 60187-5593,
)
)
)
)
Plaintiff,
)
)
v.
)
)
)
)
)
STATES DEPARTMENT
)
OF HEALTH AND HUMAN
)
)
)
)
)
)
)
Defendants.
)
____________________________________)
Civ. Action No. ___________

COMPLAINT
Jury demanded

(pro hac vice application to be filed)
Mark Rienzi (DC Bar No. 494336)
3000 K St. NW
Suite 220
(202) 955-0095
(202) 955-0090
ekniffin@becketfund.org
JA 130
Comes now Plaintiff Wheaton College, by and through its attorneys, and states as follows:

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 Wheaton College (Wheaton or the College) is a Christian liberal arts college
located in Wheaton, Illinois. Wheatons religious beliefs forbid it from participating in,
providing access to, paying for, training others to engage in, or otherwise supporting abortion.
Wheaton is among the many American religious organizations that hold these beliefs.
Mandate) that runs roughshod over Wheatons religious beliefs, and the beliefs of millions of
other Americans, by forcing it to provide health insurance coverage for abortifacient drugs and
related education and counseling.
4. The governments Mandate unconstitutionally coerces Wheaton to violate its deeply-held
religious beliefs under threat of heavy fines and penalties. The Mandate also forces Wheaton to
facilitate government-dictated speech that is incompatible with its own speech and religious
teachings. Having to pay a penalty to the taxing authorities for the privilege of practicing ones
religion or controlling ones own speech is un-American, unprecedented, and flagrantly
unconstitutional.
Affordable Care Act for other groups, including large corporations, often for reasons of
1
JA 131
commercial convenience. And the government allows a variety of other reasonsfrom the age
of the plan to the size of the employerto 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 Wheatons 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 Wheatons right to the freedom of speech, as secured by
the First Amendment of the United States Constitution.
9. Had Wheatons religious beliefs been obscure or unknown, the governments 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 Wheaton and millions of other Americans. Wheaton seeks
declaratory and injunctive relief to protect against this attack.
JA 132
2000bb-1.
or omissions giving rise to the claim occurred in this district, and Defendants are all located in
this district.
12. Plaintiff Wheaton College is a liberal arts college in Wheaton, Illinois. Founded in 1860
by abolitionist Jonathan Blanchard, the Colleges mission is to help build the church and
improve society worldwide by promoting the development of whole and effective Christians
through excellence in programs of Christian higher education.
JA 133
Mandate.
FACTUAL ALLEGATIONS
I. Wheatons Religious Beliefs and Practices Related to Insurance for Abortion.
20. Wheaton College is a liberal arts college located in Wheaton, Illinois. It was founded in
1860 by abolitionist Jonathan Blanchard.
21. Today, Wheaton College is an institution of higher learning, a rigorous academic
community that takes seriously the life of the mind. See http://www.wheaton.edu/AboutWheaton/Community-Covenant. Wheaton offers 59 undergraduate degree programs and 22
graduate degree programs, including five doctoral programs.
22. Faith is central to the education mission of Wheaton College. The College aspires to
live, work, serve, and worship together as an educational community centered around the Lord
Jesus Christ. Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.
23. Wheaton Colleges purpose is expressed in its mission statement: Wheaton College
exists to help build the church and improve society worldwide by promoting the development of
whole and effective Christians through excellence in programs of Christian higher education.
24. Wheaton Colleges motto is For Christ and His Kingdom.
JA 134
25. In order to further its mission, Wheaton has a longstanding conviction that appropriate
institutional standards help to foster the kind of campus atmosphere most conductive to
becoming the Christian community of living, learning, and serving that Wheaton College aspires
to be.
26. Each year, all Wheaton College students and full-time employees commit themselves to
this community by signing Wheaton Colleges Community Covenant.
27. In addition to signing the Community Covenant, Wheaton requires its Board of Trustees,
faculty, and staff to annually reaffirm the Colleges doctrinal statement, which provides a
summary of biblical doctrine that is consonant with Evangelical Christianity. See
http://www.wheaton.edu/About-Wheaton/Statement-of-Faith-and-Educational-Purpose.
28. Wheaton Colleges Community Covenant recognizes that Scripture condemns the taking
of innocent life. (Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.)
29. Wheaton College holds religious beliefs that include traditional Christian teachings on
the sanctity of life. Wheaton believes and teaches that each human being bears the image and
likeness of God, and therefore that all human life is sacred and precious, from the moment of
conception. Wheaton College therefore believes and teaches that abortion ends a human life and
is a sin.
30. Wheaton College is registered as a tax-exempt organization under 26 U.S.C. 501(c)(3).
31. Wheaton College is not a church, an integrated auxiliary of a church, or a convention or
association of churches as defined by 26 U.S.C. 6033(a)(3)(A)(i).
32. Wheaton College is not a religious order as defined by 26 U.S.C. 6033(a)(3)(A)(iii).
JA 135
33. Wheaton College is not a church or a convention or association of churches as defined by

26 U.S.C. 414(e).
34. Wheaton College has about 2,400 undergraduate and 600 graduate students.
35. Wheaton has about 709 full-time and 161 part-time employees as of June 30, 2012.
36. As part of its religious convictions, Wheaton College promotes the well-being and health
of its employees. This includes provision of generous health services and health insurance for its
employees.
37. Wheaton Colleges religious beliefs prohibit it from deliberately providing insurance
coverage for drugs, procedures, or services inconsistent with its faith, in particular abortioninducing drugs, abortion procedures, and related services.
38. It is similarly a violation of Wheaton Colleges religious beliefs to deliberately provide
health insurance that would facilitate access to abortion-causing drugs, abortion procedures, and
related services, even if those items were paid for by an insurer or a plan administrator and not
by Wheaton College.
39. Wheaton College has no conscientious objection to providing coverage for non-abortioncausing contraceptive drugs and devices.
40. Wheaton College has expended significant resources working with its insurers and plan
administrators to ensure that its health insurance policies reflect the Colleges religious beliefs.
41. On September 27, 2011, Wheaton College submitted public comments on the Interim
Final Rule on Preventative Services published on August 3, 2011 (76 Fed. Reg. 46621).1
Letter from President Philip G. Ryken, President, Wheaton College, to IRS Commissioner Douglas H. Shulman
(Sept. 27, 2011), available at http://www.regulations.gov/#!documentDetail;D=IRS-2010-0017-0975.
JA 136
Wheatons comments expressed its concern that the interim final rule failed to recognize it as a
religious employer and that the rule violates the Colleges rights of conscience.
42. On June 19, 2012, Wheaton College submitted public comments on the Advance Notice
of Proposed Rulemaking on Preventative Services published on March 21, 2012 (77 Fed. Reg.
16501). Wheatons comments reiterated its concerns about the interim final rule, particularly the
Defendants refusal to provide it and similar religious employers with the same exemption
afforded to churches.
43. The plan year for Wheaton Colleges employee insurance plans begins on January 1 of
each year.
44. Wheaton College made certain changes to its employee insurance plans effective April 1,
2012, that render Wheaton healthcare plans ineligible for grandfathered status. See 45 C.F.R.
147.140(a)(1)(i), 26 C.F.R. 54.9815-1251T(a)(1)(i); 29 C.F.R. 2590.715-1251(a)(1)(i). In
particular, Wheaton removed coverage for prescription drugs from two of its employee insurance
plans and created new drug benefit plans for employees. None of these plans are grandfathered.
47. The Act does not apply equally to all plans.
JA 137

50. The Act applies differently to employers with fewer than 50 employees, not counting
51. According to the United States census, more than 20 million individual workers are
employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html.
Employers with less than 50 employees would therefore employ an even higher number of
workers.
indefinitely.
small
employers
with
between
50
and
100
employees
may
do
likewise.
JA 138
rules.
and plan issuers.
JA 139
(2010).2 The interim final rule required providers of group health insurance to cover preventive
10
JA 140
should
be
covered
by
all
health
plans
as
preventive
care
for
women.
See
Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), Prof.
John Santelli, a Senior Fellow at the Guttmacher Institute, the National Womens Law Center,
National Womens Health Network, Planned Parenthood Federation of America and Prof. Sara
Rosenbaum, a proponent of government-funded abortion.
invited presenters.
published its recommendations. It recommended that the preventive 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).
77. FDA-approved
contraceptive
methods
include
birth-control
pills;
prescription
contraceptive devices and injections; levonorgestrel, 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.
78. 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
11
JA 141
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. Instead the Mandate was essentially unresponsive to the concerns stated in the comments
submitted by religious organizations.
81. When it issued the Mandate, HHS requested comments from the public by September 30,
2011, and indicated that comments would be available online.
Mandate and its narrow religious employer exemption.
against.
of religious organizations like Wheaton, even though those rights were repeatedly raised in the
public comments.
85. The Mandate requires that Wheaton provide coverage or access to coverage for abortion
and related education and counseling against its conscience in a manner that is contrary to law.
86. The Mandate constitutes government-imposed pressure and coercion on Wheaton to
change or violate its religious beliefs.
12
JA 142
87. The Mandate exposes Wheaton to substantial fines for refusal to change or violate its
religious beliefs.
88. The Mandate imposes a burden on Wheatons employee recruitment efforts by creating
uncertainty as to whether Wheaton will be able to offer health insurance beyond 2012.
89. The Mandate places Wheaton at a competitive disadvantage in its efforts to recruit and
retain employees.
90. The Mandate forces Wheaton to provide coverage or access to coverage for abortioncausing drugs, including Plan B and Ella, in violation of Wheatons religious beliefs.
91. Wheaton has a sincere religious objection to providing coverage for Plan B and Ella since
it believes those drugs could prevent a human embryowhich it understands to include a
fertilized egg before it implants in the uterusfrom implanting in the wall of the uterus, causing
the death of the embryo.
92. Wheaton considers the prevention by artificial means of the implantation of a human
93. Wheaton believes that Plan B and Ella can cause the death of the embryo.
95. The drug Ella can prevent the implantation of a human embryo in the wall of the uterus.
96. Plan B and Ella can cause the death of the embryo.
13
JA 143
99. The Mandate forces Wheaton to provide insurance coverage or access to insurance
coverage for abortion-causing drugs, including Plan B and Ella, regardless of the ability of
insured persons to obtain these drugs from other sources.
100. The Mandate forces Wheaton to provide insurance coverage or access to insurance
coverage for education and counseling concerning abortion that directly conflicts with
Wheatons religious beliefs and teachings.
101. Providing this counseling and education is incompatible and irreconcilable with
Wheatons express messages and speech.
102. The Mandate forces Wheaton to choose among violating its religious beliefs, incurring
substantial fines, or terminating its employee health insurance coverage.
103. 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.
104. Wheaton has already had to devote significant institutional resources, including both
staff time and funds, to determining how to respond to the Mandate. Wheaton anticipates
continuing to make such expenditures of time and money up until the time that the Mandate goes
into effect.
147.130(a)(iv)(A).
106. 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
14
JA 144
amended. 45 C.F.R. 147.130(a)(iv)(B).
107. The Mandate imposes no constraint on HRSAs discretion to grant exemptions to some,
Fed. Reg. 46621.
109. Most religious organizations, including Wheaton, have more than one purpose.
110. For most religious organizations, including Wheaton, the inculcation of religious values
is only one purpose among others.
111. On January 20, 2012, Defendant 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, to comply with the new law, on the
condition that those employers certify they qualify for the extension. At the same time, however,
Sebelius announced that HHS intend[s] to require employers that do not offer coverage of
contraceptive services to provide notice to employees, which will also state that contraceptive
services are available at sites such as community health centers, public clinics, and hospitals with
income-based support. See Statement by U.S. Dept of Health and Human Services Secretary
15
JA 145
Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html

(last visited July 16, 2012).
112. On February 10, 2012, President Obama held a press conference at which he announced
an intention to initiate, at some unspecified future date, a separate rulemaking process that would
work toward creating a different 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.
113. On that same dayFebruary 10, 2012the 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.3
114. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a
non-profit; (2) it has not, from February 10, 2012 onward, offered contraceptive coverage . . .
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.
DEPT OF HEALTH & HUMAN SERVS. (Feb. 10, 2012), at 3, available at
(last
visited July 16, 2012).
16
JA 146
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
contraceptive services without cost sharing, and that [d]uring this one-year period, coverage
under your group health plan will not include coverage of contraceptive services.
115. On February 15, 2012, the Defendants adopted as final, without change, the Mandate
and its narrow religious employers exemption. 77 Fed. Reg. 8725, 8727.
116. 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 chargeto employees covered under the organizations 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).

117. The ANPRM did not announce any intention to alter the Mandate or its narrow
religious employer exemption, which was made final, without change on February 15, 2012.
118. In sum, the Mandate takes effect against Wheatons employee insurance plans on
January 1, 2013.
17
JA 147
119. To qualify for the one-year non-enforcement period, Wheaton would be required to
satisfy the Safe Harbor notice requirements outlined in the guidance bulletin by January 1, 2013.
120. Wheatons employee insurance plans, however, are ineligible for the Safe Harbor,
because they currently provide coverage for certain contraceptives and inadvertently provided
coverage for a short period after February 10, 2012 for other now-excluded contraceptives,
making it impossible for Wheaton to make the required Safe Harbor certification.
CLAIMS
COUNT I
Substantial Burden
121. Wheaton incorporates by reference all preceding paragraphs.
122. Wheatons sincerely held religious beliefs prohibit it from providing coverage or access
to coverage for abortion or related education and counseling. Wheatons compliance with these
beliefs is a religious exercise.
123. The Mandate creates government-imposed coercive pressure on Wheaton to change or
violate its religious beliefs.
124. The Mandate chills Wheatons religious exercise.
125. The Mandate exposes Wheaton to substantial fines for its religious exercise.
126. The Mandate exposes Wheaton to substantial competitive disadvantages, in that it will
no longer be permitted to offer health insurance.
127. The Mandate imposes a substantial burden on Wheatons religious exercise.
18
JA 148
131. The Mandate and Defendants threatened enforcement of the Mandate violate
Wheatons rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et
seq.
132. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and
COUNT II
Substantial Burden
Mandate.
140. The Mandate creates government-imposed coercive pressure on Wheaton to change or
141. The Mandate chills Wheatons religious exercise.
19
JA 149
142. The Mandate exposes Wheaton to substantial fines for its religious exercise.
143. The Mandate exposes Wheaton to substantial competitive disadvantages, in that it will
no longer be permitted to offer health insurance.
144. The Mandate imposes a substantial burden on Wheatons religious exercise.
146. The Mandate and Defendants threatened enforcement of the Mandate violate
Wheatons rights secured to it by the Free Exercise Clause of the First Amendment of the United
COUNT III
Mandate and the religious exemption to the Mandate in a way that made it impossible for
Wheaton to comply with both its religious beliefs and the Mandate.
in order to suppress the religious exercise of Wheaton and others.
20
JA 150
COUNT IV
157. The Mandate and Defendants threatened enforcement of the Mandate thus violate
COUNT V
21
JA 151
others, resulting in a selective burden on Wheaton.
Wheatons rights secured to it by the Establishment Clause of the First Amendment of the United
COUNT VI
Free Exercise and Establishment Clauses
Excessive Entanglement
165. The Free Exercise Clause and the Establishment Clause of the First Amendment
prohibit intrusive government inquiries into the religious beliefs of individuals and institutions,
and other forms of excessive entanglement between religion and government.
166. This prohibition on excessive entanglement protects organizations as well as
individuals.
167. In order to qualify for the religious employers exemption to the Mandate, entities
must submit to an invasive government investigation into an organizations religious beliefs,
including whether the organizations purpose is the inculcation of religious values and
22
JA 152
whether the organization primarily employs and primarily serves individuals who share the
organizations religious tenets.
168. It is unclear how the government will determine whether an organization meets the
Mandates definition of a sufficiently religious organization, leading to the governments
unbridled discretion to determine whether to exempt an organization.
169. The Mandate thus requires the government to engage in invasive inquiries and
judgments regarding questions of religious belief or practice.
170. The Mandate results in an excessive entanglement between religion and government.
171. The Mandate is therefore unconstitutional and invalid.
172. The enactment and impending enforcement of the Mandate violates the Free Exercise
Clause and the Establishment Clause of the First Amendment.
COUNT VII
Free Exercise and Establishment Clauses
Excessive Interference in Matters of Internal Governance
175. The Free Exercise Clause and Establishment Clause protect the freedom of religious
organizations to decide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine.
176. Under these Clauses, the government may not interfere with a religious organizations
internal decisions concerning the organizations religious structure, ministers, or doctrine.
23
JA 153
177. Under these Clauses, the government may not interfere with a religious organizations
internal decision if that interference would affect the faith and mission of the organization itself.
178. Wheaton is a religious organization.
179. It is a violation of Wheatons 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. Likewise, it is a violation of
Wheatons religious beliefs to provide health insurance for such drugs, procedures, or services
even if those items were paid for by an insurer or a plan administrator and not by Wheaton.
180. The government may not interfere with Wheatons religious beliefs on abortioninducing drugs, abortion procedures, and related services.
181. The Mandate interferes with Wheatons internal decisions by requiring it either to
facilitate practices that directly conflict with its religious beliefs or face substantial penalties.
182. The Mandate and its religious employer exemption interfere with the organizational
structure of Wheaton by requiring Wheaton to include or facilitate coverage for practices that
directly conflict with its religious beliefs but purporting to exempt churches.
183. Because the Mandate interferes with the internal decisionmaking and organizational
structure of Wheaton in a manner that affects its faith and mission, the Mandate violates the
Establishment Clause and the Free Exercise Clause of the First Amendment.
24
JA 154
COUNT VIII
Freedom of Speech
Compelled Speech
185. Wheaton teaches that abortion violates its religious beliefs.
186. The Mandate would compel Wheaton to cooperate in activities through its provision of
health insurance that Wheaton teaches are violations of Wheatons religious beliefs.
187. The Mandate would compel Wheaton to provide education and counseling related to
abortion.
188. Defendants actions thus violate Wheatons right to be free from compelled speech as
COUNT IX
Freedom of Speech
192. Wheaton teaches that abortion violates its religious beliefs.
193. The Mandate would compel Wheaton to cooperate in activities through its provision of
health insurance that Wheaton teach are violations of Wheatons religious beliefs.
25
JA 155
194. The Mandate would compel Wheaton to provide, through its provision of health
insurance, education and counseling related to abortion.
195. Defendants actions thus violate Wheatons right of expressive association as secured to
it by the First Amendment of the United States Constitution.
COUNT X
organization such as Wheaton primarily serves and employs members of the same faith as the
organization.
200. Defendants actions therefore violate Wheatons right not to be subjected to a system of
unbridled discretion when engaging in speech or when engaging in religious exercise, as secured
26
JA 156
COUNT XI
Lack of Good Cause
required by law, and Wheaton are entitled to relief pursuant to 5 U.S.C. 706(2)(D).
COUNT XII
statutory implications of the mandate on Wheaton and similar organizations.
209. Defendants explanation for its decision not to exempt Wheaton and similar religious
27
JA 157
the meaning of 5 U.S.C. 706(2)(A) because the rules fail to consider the full extent of its
COUNT XIII
Weldon Amendment
abortions.
215. The Mandate requires issuers, including Wheaton, to provide coverage or access to
coverage of all FDA-approved contraceptives.
28
JA 158
of the APA.
COUNT XIV
Affordable Care Act
225. The Mandate requires issuers, including Wheaton, to provide coverage or access to
29
JA 159
of the APA.
PRAYER FOR RELIEF
Wherefore, Wheaton requests that the Court:
a. Declare that the Mandate and Defendants enforcement of the Mandate against
Wheaton violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants enforcement of the Mandate against
Wheaton violate the Religious Freedom Restoration Act;
Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against Wheaton
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 Wheaton the costs of this action and reasonable attorneys fees; and
Respectfully submitted this 18th day of July, 2012.
JURY DEMAND
Wheaton requests a trial by jury on all issues so triable.
30
JA 160
s/ Eric N. Kniffin
3000 K St. NW
Suite 220
(202) 955-0095
(202) 955-0090
31
JA 161
Case 1:12-cv-01169-ESH Document 4-4 Filed 08/01/12 Page 2 of 15

WHEATON COLLEGE
)
)
Plaintiff,
)
)
v.
)
)
)
)
)
STATES DEPARTMENT
)
OF HEALTH AND HUMAN
)
)
)
)
)
)
)
Defendants.
)
____________________________________)
Civ. Action No. 1:12-cv-01169-ESH

DECLARATION OF PHILIP RYKEN

3000 K St. NW
Suite 220
(202) 955-0095
(202) 955-0090
JA 162
DECLARATION OF DR. PHILIP G. RYKEN

1. My name is Philip G. Ryken. I am over the age of 18 and have personal knowledge of the
contents of this declaration. I am the current President of Wheaton College. I have served as the
Colleges President since July 1, 2010.
2. Like other employees of Wheaton College, my family and I depend upon Wheatons
health insurance. I make this declaration not only as a college president, but as an employee, a
husband and father. The loss of Wheatons insurance plan would not only be a professional
crisis, but a deep personal concern for my family.
3. I understand that Wheaton will face $1.35 million in annual finesalong with potential
penalties and lawsuitsif it continues to follow its religious beliefs by refusing to offer health
insurance that covers abortion-causing drugs. As a college president, I know the kind of strain
that this would place on a small liberal arts college. As the president of a Christian college, I
know that our responsibility is to the faith that animates us, the reason Wheaton College exists.
I.
Wheatons history and beliefs

4. Wheaton College is a Christian liberal arts college in Wheaton, Illinois. It was founded at
the dawn of the Civil War by abolitionist Jonathan Blanchard. Since its earliest days, it has been
self-supported, not tied to any one denomination. Wheaton has always recognized and valued the
contributions of women to society and to the church, granting its first degree to a female
graduate in 1862.
5. Wheatons mission is to help build the church and improve society worldwide by
promoting the development of whole and effective Christians through excellence in programs of
Christian higher education.
JA 163
6. Wheatons motto is For Christ and His Kingdom.

7. Today, Wheaton College is an institution of higher learning, a rigorous academic
community that takes seriously the life of the mind. Wheaton offers 59 undergraduate degree
programs and 22 graduate degree programs, including five doctoral programs.
8. Wheaton College is affiliated with the Evangelical Christian tradition. It is not affiliated
with any one church or denomination, but draws its students, faculty and staff from a variety of
Christian traditions. Wheatons students include Catholics, Orthodox Christians, and members of
at least 55 different Protestant denominations.
9. Faith is central to the educational mission of Wheaton College. The College aspires to
live, work, serve, and worship together as an educational community centered around the Lord
Jesus Christ.
10. Wheatons mission as an academic community is not merely the transmission of
information; rather, it is the development of whole and effective Christians who will impact the
church and society worldwide [f]or Christ and His Kingdom.
II.
Wheatons Beliefs and Teachings on Abortion

11. Wheaton College affirms that Scripture calls Christians to uphold the God-given worth of
human beings, as the unique image-bearers of God, from conception to death.

12. Wheaton College affirms that Scripture condemns the taking of innocent human life.
13. These beliefs are consonant with traditional Christian teachings on the sanctity of life.
Wheaton believes and teaches that each human being bears the image and likeness of God, and
therefore that all human life is sacred and precious, from the moment of conception. Wheaton
College therefore believes and teaches that abortion ends a human life and is a sin.
JA 164
14. Therefore it is a violation of Wheatons teachings and religious beliefs for it to

deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate
access to abortion-inducing drugs, abortion procedures, and related services.
15. Wheaton has a sincere religious objection to providing coverage for the emergency
contraceptive drugs Plan B and Ella, since it believes those drugs could prevent a human
embryowhich it understands to include a fertilized egg before it implants in the uterusfrom
implanting in the wall of the uterus, causing the death of the embryo.
16. Wheaton considers the prevention by artificial means of the implantation of a human
17. Therefore it is a violation of Wheatons teachings and religious beliefs for it to
deliberately fund, sponsor, underwrite, or otherwise facilitate access to Plan B and Ella.
18. It is similarly a violation of Wheaton Colleges religious beliefs to deliberately provide
health insurance that would facilitate access to abortion-causing drugs, abortion procedures, and
related services, even if those items were paid for by an insurer or a plan administrator and not
by Wheaton College.
19. Consistent with these religious beliefs, Wheatons employee health insurance plans do
not cover abortions or emergency contraception such as Plan B or Ella.
III.
Wheatons insurance and practices

20. As part of its religious convictions, Wheaton College promotes the well-being and health
of its employees. This includes provision of generous health services and health insurance for its
employees.
JA 165
21. Wheaton has about 709 full-time employees and 161 part-time employees. The
overwhelming majority of these full-time employees and their families rely upon Wheatons
health insurance plans.
22. Wheaton provides three health insurance plans to its full-time employees. Those plans
include two HMOs offered through BlueCross/BlueShield of Illinois and one PPO plan, which is
self-funded and administered by BlueCross/BlueShield of Illinois. As a supplement to the HMO
plans, Wheaton now offers two self-funded prescription drug plans. The plan year for each of
Wheaton Colleges employee insurance plans begins on January 1.
23. Several months ago, Wheatons human resources department began a comprehensive
review of the Colleges insurance policies to confirm that no objectionable coverage was
included. No such comprehensive review had yet occurred during my tenure as president.
24. Our human resources department was dismayed to discover that Wheatons insurance
policies did contain objectionable coverage of emergency contraception. That coverage had been
provided inadvertently. It had been included in Wheatons plans without my knowledge, the
knowledge of the vice president who oversees that department, or the knowledge of Wheatons
human resources staff. To the best of my knowledge, this objectionable coverage had been
included as a routine matter by Blue Cross/Blue Shield of Illinois at some time in the past, and
due to an oversight, remained in the policies. I do not know the date that such provisions were
included, since those changes predate my tenure and the tenure of Wheatons current HR
director.
25. After our employees discovered the irregularity, they promptly notified the vice president
for finance, who promptly notified me. At my direction, they began working with Wheatons
JA 166
insurance company and plan administrator to make changes and ensure that the Colleges
insurance policies were consistent with our Christian beliefs.
26. Wheatons PPO plan administrator promptly modified our self-funded PPO plan to
exclude emergency contraception effective January 1, 2012.
27. Wheatons HMO insurer also promptly notified us that it could not exclude emergency
contraceptives from Wheatons HMO plans. The insurer informed us that Wheaton had the
option to maintain high-quality, religiously acceptable insurance if it chose to self-insure its
prescription drug coverage. We promptly began the process of carving out prescription drug
coverage from our HMO plans and creating self-funded prescription drug plans to complement
our existing HMOs.
28. Creating new, self-funded HMO drug plans is not a simple undertaking, but our staff
worked diligently and quickly to bring our plans in line with our religious beliefs. They took the
necessary steps to initiate the policy, negotiate the administrative services, notify plan
participants, and create and distribute plan materials.
29. Until the new HMO plans were implemented, Wheatons 2012 HMO plans briefly
included emergency contraception such as Plan B and Ella. That coverage was in place as of
February 10, 2012, but was terminated at the end of March 2012. Wheatons current prescription
drug plans do not cover such emergency contraception.
30. Wheatons insurance plans have covered, and continue to cover, other types of
contraceptives. Wheaton does not have religious objections to non-abortion-causing forms of
contraception.
JA 167
31. Because of these recent changes, Wheatons HMO plans and the new accompanying
prescription drug plans are not eligible for grandfather status in 2013. Wheaton did not include a
notice of grandfather status with these plans in 2012.
32. Because of these recent changes, it is unclear whether Wheatons PPO plan will be
eligible for grandfather status in 2013. It is unclear whether eliminating coverage for emergency
contraceptives terminates grandfather status. However, even if it does not, we recognize that our
PPO plan cannot remain grandfathered over the long term.
33. Our HMO plans have, and continue to be, the most popular insurance option for Wheaton
employees and their families. Roughly 390 of our 709 eligible employees use one of our HMO
plans. Another 217 use the PPO plan.
34. Wheaton College wishes to continue to provide high-quality, affordable health insurance
for its employees. Doing so is consistent with our religious commitment to support our faculty,
staff, and their families.
35. If Wheaton had to terminate its health insurance coverage, it would be a serious hardship
on most faculty and staff, including myself.
36. If Wheaton had to terminate its health insurance coverage, it would suffer serious
competitive disadvantages in recruiting and retaining faculty and staff.
37. If Wheaton had to terminate its health insurance, it is inevitable that, due to the loss of
competitive advantage, the quality of its programs and instruction would suffer.
IV.
The HHS Mandate and Wheatons choice

38. Wheaton College has expended significant resources working with its insurer and plan
administrator to ensure that its health insurance policies reflect the Colleges religious beliefs.
JA 168
Wheaton hopes to maintain those plans, but their future is uncertain due to the new HHS
preventive care regulations, or Mandate.
39. In September 2011, I first learned of the HHS Mandate through a letter from a fellow
Christian college president. I was deeply concerned that this government regulation could force
Wheaton to violate its religious beliefs.
40. The Mandate forces Wheaton to provide coverage or access to coverage for abortioncausing drugs, including Plan B and Ella, in violation of Wheatons religious beliefs. It also
forces Wheaton to provide insurance coverage or access to coverage for education and
counseling concerning abortion that directly conflicts with Wheatons religious beliefs and
teachings. Providing these drugs, counseling, and education is incompatible and irreconcilable
with Wheatons religious beliefs, express messages, and speech.
41. Wheaton has raised this issue with HHS directly. For example, in September 2011, the
College submitted public comments on the Interim Final Rule on Preventative Services
published on August 3, 2011 (76 Fed. Reg. 46621).Wheatons comments expressed its concern
that the interim final rule failed to recognize it as a religious employer and that the rule violates
the Colleges rights of conscience. Wheaton implored HHS to broaden the existing religious
employer exemption to cover Wheaton and similar religious organizations.
42. I am aware of the Mandates exemption provision for religious employers. Wheaton
cannot qualify for this exemption. Like most religious organizations, Wheaton has more than one
purpose. Wheaton considers the inculcation of religious values to be only one purpose among
others, such as providing a comprehensive liberal arts education. Also, Wheaton is not a
nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of
JA 169
the Internal Revenue Code of 1986, as amended. Specifically, it is not a church, an integrated
auxiliary of a church, a convention or association of churches, or a religious order.
43. Because Wheaton does not qualify for an exemption to the Mandate, the College
sincerely hoped HHS would decide to broaden the exemption to cover religious institutions like
Wheaton.
44. But HHS chose not to expand the exemption. Instead, it announced and then
implemented a one-year enforcement Safe Harbor for religious organizations that could
qualify. To qualify for this one-year non-enforcement period, Wheaton would be required to selfcertify by January 1, 2013, that it satisfies the Safe Harbor notice requirements outlined in the
HHS guidance bulletin.
45. Wheatons employee insurance plans, however, are not eligible for the Safe Harbor,
because they currently provide coverage for contraceptives, making it impossible for Wheaton to
make the required certification. Moreover, as described above, for a short period after February
10, 2012, Wheatons insurance plans inadvertently included coverage for emergency
contraceptives. Accordingly, Wheaton is not eligible for Defendants Safe Harbor because it is
not a non-profit organization whose plans have not covered contraceptive services for religious
reasons at any point from [February 10, 2012] onward.
46. Because Wheaton is not eligible for the Safe Harbor, it will be subject to enforcement
under the Mandateenforcement that includes fines, other regulatory penalties, and potential
lawsuitsstarting on January 1, 2013. The only way Wheaton could avoid those harsh
consequences would be to publicly abandon its faith commitments and violate its religious
JA 170
convictions. This is no choice at all, because Wheatons faith is central to its identity, its mission,
and its very existence.
47. Wheaton has continued to attempt to publicly persuade HHS to provide a broad
exemption from the Mandate. In June 2012, Wheaton College submitted comments on the
Advance Notice of Proposed Rulemaking on Preventative Services published on March 21, 2012
(77 Fed. Reg. 16501). Wheatons comments reiterated its concerns about the interim final rule,
particularly the Defendants refusal to provide it and similar religious employers with the same
exemption afforded to churches.
48. The Mandate exposes Wheaton to substantial fines, other regulatory penalties, and
potential lawsuits for refusal to change or violate its religious beliefs.
49. The Mandate imposes a burden on Wheatons employee recruitment and retention efforts
by creating uncertainty as to whether Wheaton will be able to offer health insurance beyond
2012.
50. The Mandate places Wheaton at a competitive disadvantage in its efforts to recruit and
retain employees.
51. The Mandate forces Wheaton to choose between, on the one hand, violating its religious
beliefs, and, on the other hand, incurring substantial fines and terminating its employee health
insurance coverage.
52. Wheaton wants to continue to provide high-quality health care coverage for its
employees. It has no objections to providing almost all of the mandated services, including
gestational diabetes screenings, well-woman visits, and most prescription contraceptives. It asks
10
JA 171
only that it be permitted to follow its beliefs by continuing to refuse to pay for, or provide access
to, abortifacients.
V.
The Mandates Impact on Wheaton

53. Because Wheaton is not eligible for the Safe Harbor, it will be subject to enforcement
under the Mandateenforcement which includes fines, other regulatory penalties, and potential
lawsuitsstarting on January 1, 2013.
54. On January 1, 2013, Wheaton will face an unconscionable choice: either violate the law,
or violate its faith.
55. If Wheaton chooses to violate the lawby ceasing to offer employee health insurance
altogether, or by offering insurance without the objectionable coveragethen it will be
penalized with fines of $2000 per employee per year, or roughly $1.35 million per year, every
year. It could also face other regulatory penalties and potential lawsuits.
56. A $1.35 million fine alone would be devastating for most any college, and particularly so
for a small liberal arts college like Wheaton.
57. In addition to this per-employee fine, Wheaton could also face tax penalties of $100 per
day per employee, as well as regulatory action and lawsuits, for continuing to offer employees
health insurance that reflects its religious convictions.
58. Even if Wheaton College is able to offer its PPO plan again in 2013, forcing all of our
employees who have deliberately chosen our HMO plans to switch over to the PPO plans they
have previously rejected would be burdensome and costly for Wheaton and its employees. For
example, there are currently 198 employees who have chosen family coverage through one of
Wheaton's two HMOs. The vast majority of those families (174) are in Wheaton's cheapest HMO
11
JA 172
plan. For these families, we would be forcing them to switch to an insurance plan they do not
want and possibly forcing them to switch doctors. Although we do not yet know the exact costs
for 2013, based on 2012 costs, we would also be asking these employees to pay an additional
$504 per year in premiums. For the remaining 24 families, they would likely see a small decrease
in costs (based on 2012 numbers), but would still be forced to change insurance companies and
perhaps doctors. For example, many employees choose the premium HMO because it gives them
access to Chicagos fine research hospitals.
59. In addition to the costs borne by employees, based on 2012 costs, Wheaton itself would
incur about $200,000 in additional premium costs to switch all 198 families off of their chosen
HMO plans and into the PPO plan.
60. Forcing Wheaton to undertake this type of expensive and burdensome restructuring of its
insurance offerings, and forcing Wheatons employees to pay more money, change insurance,
and possibly change doctors, is a severe burden on Wheaton, its employees, and their families.
61. Wheaton does not have a real choice in this matter. Its religious beliefs are deep,
longstanding, and sincere.
VI.
The Need for Immediate Action

62. Wheaton must begin planning now for the 2013 insurance plan year.
63. Every fall, Wheaton works with its insurer and plan administrator to negotiate its plans
for the coming year. The process is time consuming: Wheatons HR department must negotiate
and work with its insurer and administrator on plan changes and on the production and
distribution of plan materials and employee insurance cards. This process typically takes
Wheaton College three to four months.
12
JA 173
64. Wheaton plans to begin the insurance negotiation process in September, to give itself
adequate of time to make any necessary changes before the January 2013 plan year begins.
Therefore any major changessuch as the termination of one or all plansmust be known to
Wheaton by September 30, 2012 at the latest.
65. Wheaton needs to implement any major changes prior to November 1, 2012, the first date
of the two-week open enrollment period for employees and their families.
66. Wheaton needs immediate relief from the Mandate in order to arrange for and continue
providing employee health insurance. Delay could lead to a lapse in coverage. Denial of
immediate relief will force Wheaton to choose between its religious beliefs and the prospect of
crippling fines, regulatory penalties, and lawsuits.
67. The consequences for Wheatons employees would be severe. If my familys insurance
plan is cancelled, we will be forced to seek expensive individual policies on the private market.
This is particularly troubling for us, because my daughter has a chronic medical condition which
requires frequentand expensivetreatments.
68. I am not alone. As Wheaton confronts the looming deadline, I have been approached by
employees who have expressed fears for themselves and their families about what would happen
if Wheaton is forced to stop offering health insurance.
69. One employee told me that if the college stops providing medical insurance, then [he]
wont be able to work here anymore. He told me that his pregnant wife and young child rely on
his coverage through Wheaton, and that his wife burst into tears when he told her that the
mandate put this coverage in jeopardy.
13
JA 174
70. Other employees have asked me how they will afford to continue with expensive medical
treatments if Wheaton is forced to cancel coverage. Some have asked whether they should plan
for major surgeries or treatments prior to January, to ensure they will be covered.
71. My answer to them is that I hope we will not have to make that choice. I hope that we
will have relief from the Mandate prior to January 1.
Date: August 1, 2012
Philip G. Ryken
14
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WHEATON COLLEGE,
)
)
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.
)
)
Case No. 1:12-cv-01169
DECLARATION OF MARK L. RIENZI

I, Mark L. Rienzi, under 28 U.S.C. 1746, declare as follows:
1.
I am an attorney at the Becket Fund for Religious Liberty, which is a non-profit,
non-partisan religious liberties law firm. I am a member of the bar of this Court and counsel for
Plaintiff Wheaton College (Wheaton) in the above-captioned case. I have practiced law for
twelve years.
2.
On Wednesday, August 8, 2012, pursuant to this Courts instructions, I conferred
with Sheila Lieber and Michelle Bennett, counsel for Defendants, about Defendants position
concerning Plaintiffs preliminary injunction motion.
JA 191
3.
During that conference, Ms. Lieber and Ms. Bennett indicated Defendants belief
that Wheaton is eligible for the temporary enforcement safe harbor, which protects Wheaton
from government enforcement of the relevant mandate. Ms. Lieber and Ms. Bennett also stated
their expectation that a new safe harbor guidance document would issue shortly explaining that
institutions in Wheatons position will be eligible for the safe harbor.
4.
I asked Ms. Lieber and Ms. Bennett whether Defendants would also agree that the
relevant mandate does not apply to Wheaton during the safe harbor. I expressed my concern that
the safe harbor only stops government enforcement of the mandate but leaves Wheaton exposed
to private enforcement.
5.
Ms. Lieber responded that the Defendants would not agree that the mandate does
not apply to Wheaton during the safe harbor. Ms. Lieber explained that Defendants do not believe the threat of private enforcement is sufficient to create standing, and that Wheaton can raise
its religious liberties arguments in defense of private suits if and when they are filed.
I declare under penalty of perjury that the foregoing is true and correct.
_____________________________
Mark L. Rienzi
JA 192
Date: August 15, 2012 1

From: Center for Consumer Information and Insurance Oversight (CCIIO), Centers for
Medicare & Medicaid Services (CMS)
Title: Guidance on the 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
I.
Purpose
Section 2713(a)(4) of the Public Health Service Act (PHS Act), as added by the Patient
Protection and Affordable Care Act (Affordable Care Act), requires non-grandfathered group
health plans and health insurance issuers to provide coverage for recommended womens
preventive health services without cost sharing. The Affordable Care Act also added section
715(a)(1) to the Employee Retirement Income Security Act (ERISA) and section 9815(a)(1) to
the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the
PHS Act (including section 2713) into ERISA and the Code to make them applicable to group
health plans.
Interim final regulations were issued by the Department of Health and Human Services (HHS),
the Department of Labor, and the Department of the Treasury (collectively, the Departments) on
July 19, 2010 (codified at 26 CFR 54.9815-2713T; 29 CFR 2590.715-2713; and 45 CFR
147.130), which provide that a non-grandfathered group health plan or health insurance issuer
must cover certain items and services, without cost sharing, as recommended by the U.S.
Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices
of the Centers for Disease Control and Prevention, and the Health Resources and Services
Administration (HRSA). Among other things, the interim final regulations provide that, if a new
recommendation or guideline is issued, a plan or issuer must provide coverage consistent with
the new recommendation or guideline (with no cost sharing) for plan years (or, in the individual
market, policy years) that begin on or after the date that is one year after the date on which the
new recommendation or guideline is issued.
This bulletin was originally issued on February 10, 2012, to describe the temporary enforcement safe harbor. In
reissuing this bulletin, CMS is not changing the February 10 policy; it is only clarifying three points: (1) that the safe
harbor is also available to non-profit organizations with religious objections to some but not all contraceptive
coverage, as clarified herein; (2) that group health plans that 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, as clarified herein; 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, as clarified
herein. Organizations that have already completed the certification or issued the notice from the February 10, 2012
bulletin are not required by this revised bulletin to recertify or reissue the notice.
JA 193
HRSA was charged by statute with developing comprehensive guidelines for preventive care and
screenings with respect to women, to the extent not already recommended by USPSTF. On
August 1, 2011, HRSA adopted and released guidelines for womens preventive services based
on recommendations developed by the Institute of Medicine at the request of HHS (Womens
Preventive Services: Required Health Plan Coverage Guidelines, or HRSA Guidelines). One of
HRSAs recommendations is that all Food and Drug Administration-approved contraceptives for
women, as prescribed by a provider, be covered by non-grandfathered group health plans and
health insurance issuers without cost sharing.
That same day, the Departments issued an amendment to the interim final regulations that
provided HRSA discretion to exempt group health plans established or maintained by certain
religious employers (and any group health insurance provided in connection with such plans)
from any requirement to cover contraceptive services. The Departments amended interim final
regulations specified that, for purposes of this exemption, a religious employer is one that: (1)
has the inculcation of religious values as its purpose; (2) primarily employs persons who share its
religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit
organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.
Section 6033(a)(3)(A)(i) and (iii) of the Code refers to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively religious activities of any
religious order. The definition of religious employer, as set forth in the amended interim final
regulations, was based on existing definitions used by some States that exempt group health
insurance coverage of certain religious employers from having to comply with State insurance
law requirements to cover contraceptive services. This discretion to exempt the group health
plans established or maintained by these religious employers (and any group health insurance
coverage provided in connection with such plans) from any requirement to cover contraceptive
services was exercised by HRSA in the HRSA Guidelines, consistent with the Departments
amended interim final regulations. Therefore, this exemption now applies to any group health
plan established or maintained by a qualifying religious employer (and any group health
insurance coverage provided in connection with such a plan).
For all non-exempted, non-grandfathered plans and policies, the regulations require coverage of
the recommended womens preventive services, including the recommended contraceptive
services, without cost sharing, for plan years (or, in the individual market, policy years)
beginning on or after August 1, 2012.
On January 20, 2012, Secretary Sebelius reaffirmed the exemption authorized in the amended
interim final regulations. In doing so, the Secretary indicated that a temporary enforcement safe
harbor would be provided 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). This bulletin
describes the temporary enforcement safe harbor. It is available to non-exempted, nongrandfathered group health plans established or maintained by non-profit organizations whose
plans have consistently not covered all or the same subset of contraceptive services for religious
reasons at any point from the original issuance date of this bulletin (i.e., February 10, 2012)
onward, consistent with any applicable State law (and any group health insurance coverage
JA 194
provided in connection with such plans), as described herein. This temporary enforcement safe
harbor provides an additional year for these group health plans and group health insurance
issuers (i.e., until the first plan year beginning on or after August 1, 2013).
The Department of Labor and the Department of the Treasury agree with the need for such
transitional relief and will not take any enforcement action against an employer or group health
plan that complies with the conditions of the temporary enforcement safe harbor described
herein.
II.
Temporary Enforcement Safe Harbor
The temporary enforcement safe harbor will be in effect until the first plan year that begins on or
after August 1, 2013. Neither employers, nor group health plans, nor group health insurance
issuers will be subject to any enforcement action by the Departments for failing to cover some or
all of the recommended contraceptive services without cost sharing in non-exempted, nongrandfathered group health plans established or maintained by an organization, including a group
or association of employers within the meaning of section 3(5) of ERISA, (and any group health
insurance coverage provided in connection with such plans) meeting all of the following criteria:
1. The organization is organized and operates as a non-profit entity.
2. From February 10, 2012 onward, the group health plan established or maintained by the
organization has consistently not provided all or the same subset of the contraceptive
coverage otherwise required at any point, consistent with any applicable State law,
because of the religious beliefs of the organization.
3. As detailed below, the group health plan established or maintained by the organization
(or another entity on behalf of the plan, such as a health insurance issuer or third-party
administrator) must provide to participants the attached notice, as described below, which
states that some or all contraceptive coverage will not be provided under the plan for the
first plan year beginning on or after August 1, 2012. 2
4. The organization self-certifies that it satisfies criteria 1-3 above, and documents its selfcertification in accordance with the procedures detailed herein.
With respect to the second criterion above, the following exception applies. A group health plan
will be considered not to have provided all or the same subset of the contraceptive coverage
otherwise required if it took some action to try to exclude or limit such coverage that was not
successful as of February 10, 2012. Accordingly, such coverage will not disqualify an employer,
a group health plan, or a group health insurance issuer from eligibility for the safe harbor. To
qualify, the organization must certify that it (or its plan or its issuer) took some action before
February 10, 2012, to try to exclude from coverage under the plan some or all contraceptive
services because of the religious beliefs of the organization, but that, subsequently, such
2
Nothing in this bulletin precludes employers or others from expressing their opposition, if any, to the final
regulations or to the use of contraceptives.
JA 195
contraceptive services were covered under the plan despite such action. Section IV describes the
specifications for the certification.
Any employer that potentially qualifies for the religious employer exemption may, if eligible, opt
to invoke the temporary enforcement safe harbor. Doing so would not preclude the employer
from later invoking the exemption, if eligible.
JA 196
III.
Notice
The attached notice must be in any application materials distributed in connection with
enrollment (or re-enrollment) in coverage that is effective beginning on the first day of the first
plan year that is on or after August 1, 2012. 3 (For example, for a calendar year plan with an
open enrollment period beginning November 1, the notice must be in any application materials
provided to participants on or after November 1, 2012.).
This notice is required to be provided by the group health plan (although the plan may ask
another entity, such as a health insurance issuer or third-party administrator, to accept
responsibility for providing the notice on its behalf). With respect to insured coverage, unless it
accepts in writing the responsibility for providing the notice, a group health insurance issuer does
not lose its protection under the temporary enforcement safe harbor solely because the notice is
not distributed by the plan as described herein, or because the issuer relies in good faith on a
representation by the plan that turns out to be incorrect.
Organizations that exclude some contraceptive coverage must use the term some in the notice
where indicated.
IV.
Certification
A certification must be made by the organization described in section II. 4 The certification must
be signed by an organizational representative who is authorized to make the certification on
behalf of the organization. The specifications for the certification are attached.
The certification must be completed and made available for examination by the first day of the
plan year to which the temporary enforcement safe harbor applies.
Where to get more information:
If you have any questions regarding this bulletin, contact CCIIO at CMS at 410-786-1565 or at
phig@cms.hhs.gov.
CMS has determined that the notice is not a collection of information under the Paperwork Reduction Act because
it is [t]he public disclosure of information originally supplied by the Federal government to the recipient for the
purpose of disclosure to the public. 5 CFR 1320.3(c)(2).
4
CMS has determined that the certification is not a collection of information under the Paperwork Reduction Act
because, although it is a third-party disclosure, it is a certification that does not entail burden other than that
necessary to identify the respondent, the date, the respondents address, and the nature of the instrument. 5 CFR
1320.3(h)(1).
JA 197
NOTICE TO PLAN PARTICIPANTS

The organization that sponsors your group health plan has certified that it qualifies for a
contraceptive services without cost sharing. During this one-year period, coverage under your
group health plan will not include coverage of [some] contraceptive services.
JA 198
CERTIFICATION
This form is to be used to certify that the group health plan established or maintained by the organization
listed below qualifies for the temporary enforcement safe harbor, as described in HHS bulletin entitled
Guidance on the 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,
pertaining to coverage of FDA-approved contraceptive services for women without cost sharing.
Please fill out this form completely.
Name of the organization sponsoring the plan
Name of the individual who is authorized to make,
and makes, this certification on behalf of the
organization
Mailing and email addresses and phone number for
the individual listed above
(Check the applicable box)

I certify that the organization is organized and operated as a non-profit entity; and that, at any point
from February 10, 2012 onward, the plan has consistently not provided all or the same subset of the
contraceptive coverage otherwise required, consistent with any applicable State law, because of the
religious beliefs of the organization.
I certify that the organization (or its plan or its issuer) took some action before February 10,
2012, to try to exclude from coverage under the plan some or all contraceptive services
because of the religious beliefs of the organization, but that, subsequently, such
contraceptive services were covered under the plan despite such action, and that, but for that
coverage, I could make the certification above.
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true
and correct. I also declare that this certification is complete.
______________________________________
Signature of the individual listed above
______________________________________
Date
Failure to provide the requisite notice to plan participants renders a group health plan ineligible for the
temporary enforcement safe harbor.
JA 199

WHEATON COLLEGE,
Civil Action
No. 12-1169
Plaintiff,
v.
KATHLEEN SEBELIUS, et al.,

Defendants.
August 23
2:30 p.m.
2012
Washington t D.C.
TRANSCRIPT OF MOTION HEARING PROCEEDINGS

BEFORE THE HONORABLE ELLEN SEGAL HUVELLE
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiff:
Mark L. Rienzi, Esq.

LIBERTY
3000 K Streett NW Suite 220
Washington t DC 20007
(202) 507-0834
Email: Mrienzi@becketfund.org
t
Eric Nieuwenhuis Kniffin, Esq.

THE BECKET FUND
3000 K Streett NW t Suite 220
(202) 349-7210
Email: Ekniffin@becketfund.org
Lori H. Windham, Esq.
THE BECKET FUND
3000 K. Streett NW
Suite# 220
(202) 349-7202
Email: Lwindham@becketfund.org
Scott L. Wa22ace, RDR, CRR, Officia2 Court Reporter

(202)354-3196 * scott2yn01@ao2.com
JA 200
APPEARANCES:
15
(Cont. )
For the Plaintiff:
Stuart Kyle Duncan, Esq.

LIBERTY
(202) 349-7209
Email: Kduncan@becketfund.org
For the Defendants:
Michelle Renee Bennett, Trial

Attorney
Civil Division, Federal Programs
Branch
(202) 305-8902
Email: Michelle.bennett@usdoj.gov
Court Reporter:
Scott L. Wallace, RDR, eRR

Official Court Reporter
Room 6503, U.S. Courthouse
202.354.3196
swallace.reporter@gmail.com
Proceedings reported by machine shorthand, transcript produced

by computer-aided transcription.
16
17
18
19
20
21
22
23
24
25
"---
Scott L. WaLLace, RDR, CRR, OfficiaL Court Reporter

(202)354-3196 * scottLyn01@ao1.com
JA 201
THURSDAY AFTERNOON SESSION, AUGUST 23, 2012
1
2
THE COURT:
Good afternoon.
MR. RIENZI:
THE COURTROOM CLERK:
Good afternoon, Your Honor.

Your Honor, calling Civil Case
Number 12-1169, Wheaton College versus Kathleen Sebelius, et al.
Counsel for the plaintiff, Mr. Stuart Kyle Duncan, Ms. Lori H.
Windham, Mr. Mark L. Rienzi and Mr. Eric Kniffin.
the defendant, Michelle Bennett.

THE COURT:
Good afternoon.
Let's see.
Counsel for
I think it would
10
make some sense to start off with the plaintiff since defense had
11
the last pleading, and we'll have 10, 15 minutes, and then we'll
12
hear from the other side for an equal amount of time.
13
So shall we start with Wheaton College?
14
Who's going to
argue for you?
15
MR. RIENZI:
16
THE COURT:
I'm looking in the wrong place.
17
MR. RIENZI:
I am, Your Honor, Mark Rienzi.
18
THE COURT:
19
MR. RIENZI:
I am, Your Honor.
Okay.
All right.
Go ahead, sir.
Thank you, Your Honor.
May it please the
20
Court.
21
is to seek judicial protection from government pressure to
22
23
their brief as to why this Court should leave Wheaton exposed to
24
that pressure all fail.
25
uncertainty about exactly what federal law applies to Wheaton
Wheaton College filed this action for one reason, which
The government's arguments in
There is simply no dispute and no
"--'
Scott L.
Wa~~ace, RDR, CRR, Officia~ Court Reporter

(202)354-3196 * Bcott~yn01@ao~.com
JA 202
1
--.-
College's insurance policies that it is arranging for right now.
The defendants agree and the plaintiffs agree.
THE COURT:
order to rule your way?
MR. RIENZI:
THE COURT:
Do I have to disagree with Judge Boasberg in
Urn ...
I thought -- the one thing that -- we did have
a conference callt for the record t that was off the record at
that timet but I did say that I needed to know -- I wanted you to
address why that case in some way should not be persuasive.

So there are two parts to your argument as far as I know:
10
11
One has to do with the private suits under ERISA; and one has to
12
do with the law is the law t so to speak.
13
those.
14
to distinguish or tell me why he's wrong.
15
He addressed both of
So I'm interested to know whether you have any arguments
MR. RIENZI:
AbsolutelYt Your Honor.
Let me go to the
16
first and easiest distinction t which is on that initial
17
conference call you instructed the parties to have a conference
18
to discuss whether Wheaton qualified for the safe harbor.
19
that discussion the government said that its view was Wheaton
20
qualified and t in factt last Wednesday afternoon the government
21
changed the safe harbor t changed it rather dramaticallYt in a way
22
to address some of Wheaton's concerns.
23
of Wheaton's concerns t they addressed some of them.
24
25
At
They didn't address all
There's no serious argument -- or I don't think there's an

argument that the Court should take as serious -- that at the
Scott L. Wa22ace, RDR, CRR, Oicia2 Court Reporter

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JA 203
time the suit was commenced t Wheaton pled an injury.
the suit was commenced t Wheaton did not qualify for the safe
harbor.
defendants -- for the defendants' issuance of the guidance
documents required Wheaton to certify that at any point from
February lOth onward contraceptive coverage had not been provided
by the plan.
with a lot of contraceptive coverage and covered contraceptives
after the cutoff date.
10
The safe harbor at that timet in place for the
Wheaton could not do that because Wheaton is okay
So it is simply not plausible to say that
at the time the complaint was filed that the -THE COURT:
11
12
At the time
decide that?
Do I need to -- wellt okay.
I have to look at it as of todaYt don't I?
MR. RIENZI:
13
Yes and no.
For standing purposes
14
Supreme Court has made clear
15
the time of the commencement of the suit.
16
But do I need to
and the
the standing analysis is done at
What the defendants are really arguing is a mootness
17
point.
18
Wednesday when they changed the safe harbor rules they muted
19
Wheaton's case.
20
did not qualify for the safe harbor.
21
a lie to the federal government.
22
to the federal government that they don't cover things that
23
actually they do cover.
24
THE COURT:
25
In other words t what they're really arguing is that last
At the time the case was filed Wheaton simply

They would have had to tell
They would have had to certify
How about ripeness t though?
That isn't at the
time of suit.
scott L.
Wa~~ace,
RDR, CRR,
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Oicia~
Court Reporter
scott~yn01@ao~.com
JA 204
MR. RIENZI:
Yeah.
Well, the government's ripeness
argument is essentially an argument about future versions of the
rule that they may issue but haven't issued yet.
THE COURT:
Well, but you're arguing that standing is at
the time the suit is filed.
circumstances are not what they are today.
for the safe harbor.
8
9
10
11
ripeness -- I don't -- I'm not bound by the date of filing suit.

MR. RIENZI:
I think that's true.
I think the case has to
be ripe at all times.

THE COURT:
13
MR. RIENZI:
15
You agree you qualify
So I'm asking you a legal question of whether the
12
14
When the suit was filed the
Right.
But I think this case is easily ripe for
several reasons.
So first, to go back to the initial question, differences
16
from Belmont Abbey.
17
no, I would suggest, no plausible argument that Wheaton really
18
qualified.
19
the federal government.
20
a mootness case and not a standing case.
21
One is, at the time of the complaint there's
They didn't qualify.
They would have had to lie to
They didn't qualify; therefore, this is
Secondly, Judge Boasberg simply did not address the
22
controlling precedent from this circuit on the question of
23
exposure to private lawsuits, which is the Chamber of Commerce v.
24
FEC case.
25
THE COURT REPORTER:
I'm sorry, Chamber of Commerce what?
scott L. Wallace, RDR, CRR, Official Court Reporter

(202)354-3196 * scottlyn01@aol.com
JA 205
MR. RIENZI:
THE COURT:
MR. RIENZI:
THE COURT:
MR. RIENZI:
You have to slow down.

I'm sorry, Your Honor.
The reporter has to get it.
Chamber of Commerce v. Federal Election
Commission and it's at 69 F.3d 600 (D.C. Circuit 1995).
THE COURT:
MR. RIENZI:
The Chamber of Commerce v. FEC case.
And it was cited to him?

It was cited to him.
When
I don't know if --
It was not cited in his
opinion, at least not in that section of his opinion.
I don't
10
want to say for sure it wasn't cited in his background elsewhere.
11
That is particularly important because Judge Boasberg said
12
that the mere threat of private actions some other time is not
13
sufficient to create standing now.
14
And Judge Boasberg also said that that is not sufficient
15
to overcome fitness problems with changes that may occur to the
16
rule later.
17
First, Judge Boasberg did not address the controlling circuit
18
precedent, which is Chamber of Commerce v. FEC.
19
case -- and I'm happy to discuss it in detail.
20
the government's exposure of the plaintiff to private suits which
21
infringe its First Amendment rights, is enough for standing.
22
In that sense Judge Boasberg made two key errors.
Under that
Under that case,
Secondly, Judge Boasberg in that portion of his opinion
23
also confused two things.
24
problem, in that, some time in the future the defendants say they
25
may change their rule.
Scott L.
Judge Boasberg talked about a fitness
But that fitness problem has nothing to

(202)354-3196 * scott1yn01@ao~.com
JA 206
'-.-
do with the rule that everyone agrees is currently applicable to
the defendant -- to the plaintiffs right now.
THE COURT:
Well, the rule -- how do we know what's going
to happen to you?
anything that violates any religious beliefs?
MR. RIENZI:
How do we know that you're going to have to do
We know because in the conference that Your
Honor asked us to have with the defendants we had a very
expressed discussion with the government about it.
them the direct question:
And I asked
Will you agree that the requirements
10
in the current version of the rule do not apply to Wheaton during
11
the enforcement of safe harbor?
12
THE COURT:
The government's answer was no.
I understand you -- your argument on that
13
ground is that you could be sued.
14
enforcement, but you could have a private suit.
15
16
17
You cannot be subject to
But how do you know what it's going to look like in

January of '14?
MR. RIENZI:
We don't know what it's going to look like in
18
January of '14, but I would suggest that that -- the speculative
19
nature of the fact that the government may change their rule by
20
January of '14 is not enough to eliminate standing and ripeness
21
right now as to the version of the rule that is currently in
22
effect.
23
governs Wheaton's behavior.
24
25
There is a version of the rule currently in effect that
THE COURT:
not subject to it.
At least for public enforcement or -- you're

We know that.
~--
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Wa~~ace, RDR, CRR, Oicia~ Court Reporter

(202)354-3196 * scott~yn01@ao~.cam
JA 207
MR. RIENZI:
Well, we know that, but we also know that the
D.C. Circuit in the Chamber of Commerce case said that the mere
nonbinding position of the FEC not to enforce the law was not
enough to defeat standing.
So the D.C. Circuit said -- and this is at page 603 of the

"Therefore, appellants are not faced
Chamber of Commerce case:
with any present danger of an enforcement proceeding."
THE COURT:
MR. RIENZI:
Yes.
By the way, has anybody threatened one?
Nobody's threatened one.
No one could
10
threaten one until January 1st when our new policies come out.
11
So the fact that no one has threatened one
12
THE COURT:
13
MR. RIENZI:
14
The fact that no one has threatened one doesn't prove very
15
16
much.
You have to slow down.

I'm sorry, Your Honor.
The policies aren't out yet.

THE COURT:
Okay.
No one could.
Well, no one could, but most of your
17
population, at least as far as I understand -- you cover your
18
full-time employees.
19
MR. RIENZI:
We cover our full-time employees and their
20
families and so forth.
21
THE COURT:
22
23
That's who you're covering, right?
Right.
Have all of the full-time employees
signed that covenant?

MR. RIENZI:
I believe they have, Your Honor.
I don't
24
believe their relatives who are covered under the plans have, but
25
I believe the employees have.

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JA 208
10
THE COURT:
MR. RIENZI:
Okay.
"---
That
again, I would say that doesn't
necessarily mean that everybody shares the exact same
understanding of the school's religious objections on these two
particular drugs.
But the point, Your Honor, is that the D.C. Circuit was
quite express in the Chamber of Commerce case, that even
though you're not
THE COURT:
Okay.
If I decide that that doesn't bind, is
10
there anything else I should consider?
11
you don't need to argue it to me, if you don't mind.
12
MR. RIENZI:
13
THE COURT:
14
MR. RIENZI:
15
16
17
18
Okay.
I've read the case, so
One, I do --
If you can then -The first argument, obviously, we believe
that to be binding.
THE COURT:
Okay.
I agree it's binding.
I wouldn't dare
otherwise.
MR. RIENZI:
We agree it's binding, and we believe it's
19
applicable because in many ways it's exactly the same
20
circumstance that Wheaton College finds itself in.
21
What the Chamber of Commerce decision stands for, Your
22
Honor, is a broader principle really, which is that the
23
government does not have the power to impose a presently
24
applicable regulatory requirement on someone, which is what this
25
is, and expose them to the danger of private suits and impose
Scott L. Wallace, RDR, CRR, Official Court Reporter

JA 209
11
that current burden and coercion on people and say, well, but you
can't come to court and ask if it's legal.
essentially what the government is trying to do here.
government agrees that their rule applies to Wheaton right now,
and the government agrees that Wheaton is subject to private
suits if it violates that law.

So Wheaton's position today is as follows:
The
Wheaton has a
choice.
fit with its religious believes, but if it does so it will, one,
Wheaton can go ahead and create insurance policies that
10
be violating what the defendants agree is the currently
11
applicable federal law.
12
THE COURT:
They're not -- I don't -- that's a little bit
13
strong when they're saying that they agree it violates present
14
law.
15
them.
16
17
I don't think that's what they're saying.
MR. RIENZI:
Okay.
THE COURT:
I'll hear from
They agreed that that rule is
currently applicable to Wheaton College.
18
What we asked for
And, let's be fair, they agree that they're
19
going to figure out a way to accommodate Wheaton over the next
20
year.
21
doing that.
22
23
24
25
."""-~
And that's
You always seem to ignore that.
MR. RIENZI:
They've committed to
And if they do it we will be delighted, Your
Honor, but it doesn't change the problem right now.

THE COURT:
Well, it doesn't -- what it doesn't change is
theoretically you could get sued by private parties.
You can't
..

(202)354-3196 * scott1yn01@ao1.com
JA 210
12
be sued by the government.
being bound by that law for purposes of enforcement.
some distinctions.
MR. RIENZI:
The government does not view you as

So there's
There are some distinctions, Your Honor, but
under the Chamber of Commerce case I don't think those
distinctions change the analysis.
And, secondly, the theoretical possibility of the suit in
the future doesn't change the actual present real coercion
imposed on the plaintiffs right now.
In other words, it may be
10
the case that we -- we don't have a crystal ball.
11
for sure that someone will sue Wheaton College in February of
12
2013.
13
faced lawsuits over this issue, but the bottom line is the
14
pressure Wheaton feels today, which the defendants have the
15
ability to take off of Wheaton's back and have chosen not to, is
16
that if they go down that path they violate federal law and they
17
expose themselves to these lawsuits.
18
able to take that burden away.
19
burden away from anyone who has a grandfather plan, which the
20
defendants admit cover tens of millions of people.
21
government has taken that burden away from anyone who meets their
22
definition of a religious employer.
23
24
25
I don't know
It wouldn't be the first time that a religious institution
THE COURT:
coverage, ever?
The government is perfectly
The government has taken that
And the
Has anybody ever asked you for contraceptive

Just out of curiosity.
MR. RIENZI:
I don't know the answer to that, and I'm not
-~-
Scott L.
Wa~~ace,
RDR, CRR,
(202)354-3196
Oicia~
Court Reporter
scott~yn01@ao~.cam
JA 211
13
sure that -- 11m not even sure it's something that Wheaton would
know.
company, but I frankly don't know.
I would assume it's a communication with the insurance
But I would also say if it's the case that this is
something that would never happen, then there should be no harm
to the government simply agreeing that this does not apply to us.
THE COURT:
Well, then they'd have to write another part
to the statute of the regulations.
find a way to accommodate this down the road for a lot of people.
10
Youlre not the only one.
Instead, they're trying to
Youlve got 24 lawsuits out there.
11
Are they all brought by you, by the way?
12
MR. RIENZI:
13
No.
Not we, The Becket Fundi certainly not
we, Wheaton College.
14
THE COURT REPORTER:
15
MR. RIENZI:
16
17
1 1m sorry?
Not we, The Becket Fund, which is the law
firm, and not we, Wheaton College.
There are many more.
But, Your Honor, on Wednesday of last week the government
18
demonstrated that they are perfectly able to change the rules on
19
the fly to deal with lawsuits when they changed the safe harbor
20
the day before our brief was due, so it is perfectly within their
21
ability to remove that burden, but the government has refused.
22
The government has refused to say that those rules are not
23
applicable to Wheaton College.
24
finds itself in is that it has to weigh two things:
25
weigh its religious convictions on one hand; with the threat that
So the position Wheaton College

(202)354-3196 * scott1yn01@ao2.com
It has to
JA 212
14
it will be violating federal law and exposed to ERISA lawsuits on
the other.
That government coercion
THE COURT:
You know -- can I ask you something.
Let's
say someone were to sue as of January, and as of next July they
find a way to rewrite things so that you're not doing anything
inconsistent with your religious beliefs, what do you think's
going to happen to the ERISA suit at that point?

MR. RIENZI:
I don't know, Your Honor.
I'm not sure if
10
the government makes a change next July if that changes what
11
rights a private person had the January before it.
12
THE COURT:
13
MR. RIENZI:
It'd be pretty important, wouldn't it?

Oh, I think it would be pretty important.
14
I'd certainly argue that it should change the game, but we don't
15
know that it will.
16
THE COURT:
17
MR. RIENZI:
18
21
We don't know that it will.
They -- they
are
19
20
What do you mean you don't know that it will?
THE COURT:
You don't know what the government's going to
do?
MR. RIENZI:
I have no idea what the government's going to
22
do, and the government's position is they don't know right now
23
what they're going to do either.
24
25
THE COURT:
But it is possible that what they do, if they
accommodate you in a way that works out that you're not on the
Scott L.
Wa~~ace,
RDR, CRR,
(202)354-3196
Officia~
Court Reporter
scott~yn01@ao~.com
JA 213
15
hook in any way inconsistently with your religious beliefs, that
any pending lawsuit -- I know of no lawsuit that moves to
conclusion in six or seven months, it's unheard of -- that you
will not be off the hook.

MR. RIENZI:
I'd say it is possible that would get us off
the hook; it's possible it would not.

Here's what's not possible to be fixed by that:
It is not
possible to change the current pressure that Wheaton feels to
violate its religious convictions today.
In other words, being
10
bailed out of a lawsuit some time in the future doesn't change
11
the current coercive burden of this rule today.
12
real.
13
we're in court asking -- simply asking for the answer:
14
legal for them to do that or not?
15
for Article III purposes.
16
about what's going to be in our insurance policies.
17
like to issue insurance policies that don't violate our religion.
18
We're being forced to make that decision under the threat of the
19
government saying if you make that decision, you're in violation
20
of applicable federal law, and we are authorizing ERISA lawsuits
21
against you.
22
notice.
23
day before the briefs were due.
24
not to.
25
why they won't simply say while they figure out this great new
That burden is
It exists on Wheaton's shoulders, and it's something that

Is it
That is an injury sufficient
We have to make a decision right now

We would
Again, they can take that threat away at a moment's
They changed the safe harbor at a moment's notice the

They can do it; they've chosen
I don't know why they've chosen not to.
Scott L.
Wa~~ace,
RDR, CRR,
(202)354-3196
Oicia~
Court Reporter
scott~yn01@ao~.cam
I don't know
JA 214
16
solution that they plan to figure out, these rules don't apply to
you at all.
not to for some reason.
THE COURT:
They certainly could do that, but they have chosen
Well, theY've said they don't apply for
purposes of government enforcement.

MR. RIENZI:
They've said that much.
Yes, but they won't do the other half, Your
Honor, which is saying that they don't apply to us for private
enforcement.
to.
And that's within their power and they choose not
We experience that as real actual coercion.
It's government
10
pressure on our backs right now to act in violation of our
11
religion.
12
13
THE COURT:
So then what do you say about the Nebraska
case, which was as ripe in this case?

MR. RIENZI:
14
Several things, Your Honor.
First, the
15
Nebraska, as with Belmont Abbey, we think was incorrect.
These
16
arguments
17
particularly with the government's recent expressed statement
18
that they'll not agree that these requirements don't apply during
19
the safe harbor.
I don't think about the private enforcement,
I think this case is in a fundamentally different, more
20
21
advanced position.
Things have sharpened.
You asked us to meet
22
and confer with them.
23
the government agreed that they will not make it inapplicable to
24
us.
25
Wheaton College today.
We did it and something sharpens, which is
So there is a federal government rule that is applicable to
Scott L.

(202)354-3196 * scott~yn01@ao~.cam
JA 215
17
THE COURT:
They will not make it inapplicable for
'~
purposes of a private suit.
MR. RIENZI:
THE COURT:
MR. RIENZI:
Did I state it correctly?

Well, they will not make it inapplicable for
purposes of private suits.
THE COURT:
MR. RIENZI:
THE COURT:
I'm sorry.
I have one other question.
Yes, Your Honor.

And, actually, I don't quite understand this,
10
but I put you all on fair warning.
11
this courthouse.
12
the fact that I didn't know it until very, very recently, there's
13
a third case out there.
14
we get through this, there will be serious consideration.
15
'-,
Yes.
There are three lawsuits in
They are, I believe, related, and I -- but for
These all belong in one place and once
I think that you have an obligation when you file under
16
our rules to at least notify the Court of a possible related
17
case.
18
guess, when you filed.
19
happened to file the day he issued his opinion and I'm curious
20
exactly how, in what order that happened.
Boasberg's was pending when you
well, it was pending, I
I don't know what time you filed, but you
21
But there was also another case before Judge Jackson --
22
MR. RIENZI:
23
THE COURT:
Yes.
-- and the exact reason for our rules is to
24
avoid having all three judges working on the same matters.
25
the future, we may end up being sent to all the lowest numbered
scott L. Wa22ace, RDR, CRR, Oicia2 Court Reporter

(202)354-3196 * scott2yn01@ao2.cam
So in
JA 216
18
case, depending on what happens, but I had already set this down
before I was aware, and I would urge both sides -- it's an
outrage that three judges should be working on the same thing.
It is not the way it's supposed to happen.
anything further that resembles any of these lawsuits, you have
an obligation to the Court to notify in that civil form where it
says any related cases.
MR. RIENZI:
that obligation.
So if you file
Yes, Your Honor, we're very well aware of

I believe our civil form says on the bottom
10
it refers to the existence of the other cases.
11
different because of different factual bases:
12
Protestant institution as opposed to -- the other two are
13
Catholic, but we did note on that form of the existence of those.
14
THE COURT:
It says it's
Wheaton is a
Well, it may be -- I could buy that perhaps
15
for the initial issue, but when you finally get to the merits,
16
it's not true anymore, so ...
17
MR. RIENZI:
18
THE COURT:
19
MR. RIENZI:
Okay.
Well, I apologize.
Yes.
Just to be clear, I believe if you look at
20
that form you will see that we did actually note the existence of
21
the other two cases.
22
THE COURT:
23
MR. RIENZI:
24
25
It certainly was our intention to.
I haven't seen it.

Okay.
Well
My understanding is
is we did.
But, again, I apologize -THE COURT:
Can you slow down.
There's no hope.
"-

(202)354-3296 * scott2ynOl@ao2.com
JA 217
19
One second.
John, pull up the complaint while youlre looking there and
look at the civil sheet.
All right.
MR. RIENZI:
THE COURT:
the other cases?
10
11
I didnlt see it, so 1 1m interested.
Finish up, sir.

Two brief points in closing, Your Honor.
First, the government argues that --
All right.
11m sorry.
THE COURTROOM CLERK:
Is there any reference there to
In Section 8 it says no, but therels
an asterisk and it reads at the bottom:

"Other cases have been filed in the District Court for the
12
District of Columbia, and other districts validating the validity
13
of the issue here on similar grounds, e.g., Belmont Abbey College
14
versus Sebelius, Case Number 11-CV 1989 and Roman Catholic Arch
15
Bishop, et al. versus Sebelius, et al., 12-CV 815.
16
however, involve the application of the U.S. Constitution and
17
federal statutes to different sets of facts.
18
does not believe they are, quote, related, unquote, cases under
19
local Civil Rule 40.5."
20
THE COURT:
21
All right.
These cases,
Plaintiff therefore
I stand corrected.
I didnlt see
the asterisk.
22
Okay.
Go ahead.
23
MR. RIENZI:
Your Honor, two brief points and then 1111
24
sit down.
25
Wheaton College shouldnlt worry about private suits because all
One, the government argues in their reply brief that
~.,

(202)354-3196 * scott2yn01@ao2.com
JA 218
20
that can happen in the private suits is an injunction against
Wheaton to provide the objected-to services -- or the objected-to
insurance coverage.
There's nothing in the Chamber of Commerce case or any
other case that says private suits that end up in injunctions are
not a coercive burden that is good enough for Article III
purposes.
Service, Inc. v. Department of Transportation, 137 F.3d 640.
says the concrete costs of an additional proceeding is a
10
I point out the D.C. Circuit case law in Sea-Land
cognizable Article III injury.
11
THE COURT:
12
MR. RIENZI:
13
THE COURT:
14
MR. RIENZI:
What's the cite again, 137 what?

137 F.3d, 640 at 648.
Okay.
The bar for an Article III injury is actually
15
quite low.
16
threat to Wheaton is merely that it will be forced to give out
17
these drugs.
18
quite seriously.
19
THE COURT:
20
It
The -- it shouldn't make any difference that the
That's not merely to Wheaton.
Wheaton takes that
Can I take your standing argument again and go
back?
21
MR. RIENZI:
22
THE COURT:
Yes.
If I determine that at the time you filed the
23
suit it was unclear what was going to happen, if we take it to
24
the point when you filed suit and decided you didn't have a
25
standing then, do I have to consider your current arguments or
Scott L. WaIIace, RDR, CRR, OfficiaI Court Reporter

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JA 219
21
just on ripeness?
MR. RIENZI:
THE COURT:
Doesn't it go both ways?
MR. RIENZI:
I guess I'm not clear.
(No response.)
Are you asking if
we're making current arguments different from what we set forth
in the --
8
9
10
THE COURT:
You said that you had standing at the time
that you commenced the lawsuit.

MR. RIENZI:
THE COURT:
Yes.
And that standing is determined the way
I suspect you're right,
11
jurisdiction is at the moment you sue.
12
but I certainly haven't looked at it for jurisdictional purposes.
13
If I were to determine that you did not have standing
14
prior to the passage of the recent clarification, then why would
15
I need to worry about what the recent clarification had to say?
16
You would lose back then.
17
MR. RIENZI:
18
THE COURT:
19
MR. RIENZI:
If you were to determine -So I disagree.

that at the time of the complaint we
20
didn't have standing, then I think you're right, we would lose
21
back then.
22
that this is a rule that's applicable to us and that we're
23
complaining about government coercion and the fact that new facts
24
have developed, in particular, in the conference that the Court
25
asked us to have, is simply more support for what's pled in the
What I would say is that the complaint makes clear

JA 220
22
complaint which is we don't want to have the government coercion.
We want to write our insurance policy without worrying about a
threat from the government that if you do X you violate federal
law.
then the government should be willing to take that off our backs.
They want to leave it on our backs, and that shouldn't be
permitted, Your Honor.
Thank you very much.
THE COURT:
Okay.
If the government would like to
10
respond.
11
addressed until now, which is:
12
determined at the time the suit's filed?
13
,
If it's a de minimis threat, if it's not really a big deal,
Counsel has brought up an issue that no one really
MS. BENNETT:
Do you agree that standing is
Your Honor, I think that it -- standing must
14
exist at the time the suit is filed, but it also must exist
15
throughout.
16
from Belmont Abbey.
17
similar argument in Belmont Abbey, when Belmont Abbey was filed,
18
the safe harbor didn't exist.
19
I believe, and so the safe harbor which protected them from
20
government protection didn't exist until after they had filed
21
their complaint.
22
the plaintiff's mootness argument in that case in his decision,
23
but by ignoring it I think it's safe to say he considered it and
24
rejected it and realized this was a standing -- and rejected it
25
and considered and realized that this was a standing issue .
But I don't think that that distinguishes this case

Actually, when the plaintiffs raised a
That was prior to February of 2012
Judge Boasberg didn't explicitly address that,
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I would also point out, Your Honor, that even if we are
looking when the complaint was filed, the regulations don't
affect Wheaton, even absent the safe harbor, until January of
this year, and so they still weren't suffering an injury at that
time prior to the government's agreement not to enforce it.
weren't required to provide insurance coverage at that time
either.
complaint was --
THE COURT:
They
So even if the Court looks at the beginning of when the
Well, their argument would be that we know you
10
will in January if there was -- I think -- that that time frame
11
is not enough to make it less than imminent, and Judge Boasberg
12
so held.
13
I mean, the time frame wasn't the significant thing.
MS. BENNETT:
Right, Your Honor, but, I mean I think that
14
the -- as I said, in Belmont Abbey it was also the case where the
15
safe harbor did not apply to Belmont Abbey at the time.
16
I would also just clarify, Your Honor.
I think the
17
revised guidance that the government issued on the safe harbor
18
was not any sort of change in the safe harbor.
19
its guidance.
20
that they've covered contraception for other purposes besides
21
contraceptive benefits and that, therefore, they didn't qualify
22
for the safe harbor.
23
based on guidance the agency had provided in the Federal
24
Register, and so the safe harbor doesn't prevent any -- or
25
doesn't present any sort of new policy, it's just revising the
It was revising
As I said, Belmont Abbey made a similar argument
And Judge Boasberg rejected that argument

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24
government's guidance.
THE COURT:
And what would happen -- so are you saying
that they're -- what is your position about Wheaton College
between now and, say, whenever you get this issue resolved?
they covered by the act's requirements?
the act's requirements?
MS. BENNETT:
Are
Are they not covered by
What is their status, so to speak?
Your Honor, the status is that the
government doesn't view Wheaton as being required by the
regulations to cover contraception for purposes of government
10
enforcement.
11
point about, well, the government could just, you know, preclude
12
these private suits, Your Honor raised the point, and I think
13
it's the reasoning behind the government's action, that we can
14
only do that for rulemaking.
15
balance interests.
16
which it did -- and agencies do on a fairly regular basis -- and
17
protect parties from government enforcement, and then the
18
government didn't feel like the remote possibility of these
19
third-party lawsuits.
20
And I think to sort of get to opposing counsel's
It could create the safe harbor via guidance,
First of all, it doesn't create standing, as we've argued
21
repeatedly.
22
standing.
The threat of private enforcement does not create
23
THE COURT:
24
MS. BENNETT:
25
So the agency was attempting to
What do you cite as cases on that point?

Well, Your Honor, I think -- I mean,
generally there's general case law about a possible future

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inj ury.
THE COURT:
Yes, but that's too general.
He's got a case.
He cites -- opposing counsel cites a specific case.

What's your best case to rebut or distinguish the FEC
4
5
I'm --
case?
MS. BENNETT:
Your Honor, first of all, I think the FEC
case is distinguishable and I'll get to that.
that the. cases that are pretty directly on point are the two
Third Circuit cases we cite in our brief recognizing that they're
10
But I do think
only persuasive on -- yes, Your Honor?
11
THE COURT:
12
MS. BENNETT:
Sal va tion Army?
Yes, Your Honor, and Presbytery of New
In both cases they were religious organizations that
13
Jersey.
14
claimed that state laws infringed on their First Amendment free
15
exercise and free speech rights.
16
promised not to enforce the law.
17
In both cases the state
Also in both cases there were existing private enforcement
18
mechanisms.
In Salvation Army the plaintiff could obtain
19
damages, and in Presbytery of New York [sic] the plaintiff could
20
obtain compensatory and punitive damages as well as fines.
21
in both of those cases the Courts held it didn't have
22
jurisdiction, even in light of these existing private enforcement
23
mechanisms, because they were too speculative.
24
Army the Court even addressed the argument plaintiffs make here
25
that they were under some sort of pressure or coercion now and
Scott L.
But
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said that -- the Court rejected that argument in Salvation Army
saying that --
~-
THE COURT:
MS. BENNETT:
THE COURT:
MS. BENNETT:
You have to slow down, too.

Oh, I'm sorry.
Wow.
Okay.
Saying that plaintiffs didn't explain how
the fear of potential third-party lawsuits would cause them to
alter the operation of their boarding house.

THE COURT:
9
10
here, they're not
saying that they will give the coverage?

MS. BENNETT:
11
12
You mean, because they
Right.
That's right, Your Honor, the fact
that they
THE COURT:
13
And they're adamantly opposed, so that they're
14
not -- they -- you're not in the catch-22.
15
mind
They've made up their
16
MS. BENNETT:
Right, Your Honor.
17
THE COURT:
18
Now, at the end of the day, will the government -- if the
-- but the government won't take action.
19
government does take action in a way that gets them off the hook,
20
so to speak, do you have any opinion about whether that would
21
apply to pending suits, if there were such things?
22
MS. BENNETT:
Your Honor, I think that the ERISA
23
statute provides -- it certainly doesn't provide for any civil
24
fines or criminal penalties.
25
and our understanding is the most likely result would be future
It provides for equitable relief,

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1
2
coverage of contraception.
THE COURT:
But if the government passes something that
allows for coverage but it doesn't come by way of Wheaton,
hypothetically, that equitable relief would not come out from
Wheaton because you've come up with some other mechanism.
MS. BENNETT:
Right.
But I think, Your Honor, first of
all, before that was applied to Wheaton, they would have a chance
in the ERISA action to raise the RFRA and First Amendment claims
they've reached here.
10
THE COURT REPORTER:
11
MS. BENNETT:
Slow down, please.
In that action they would have the
12
opportunity to raise the First Amendment and RFRA claims that
13
they raise here before the Court awarded any relief.
14
And I also think that it's -- in that case, the most
15
likely relief would still be prospective; in other words,
16
provided for in the future.
17
THE COURT:
I know, and that's my point.
If it were
18
prospective relief and they don't have any obligation under the
19
law to provide that relief because you've come up with a way of
20
some other mechanism for providing the costs of the
21
contraceptives, how can -- under equity, you can't order them to
22
do something that they have no duty to do.
23
wouldn't even have to worry about those defenses depending on
24
what happens.
25
MS. BENNETT:
Right.
scott L.
Wa~~ace,
So that -- you
I think, Your Honor, that's right.
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If the law changed so that it -- if the new regulations addressed
their concerns, then there would be no court -- no equity -- no
award for the Court to deal with.
',,--,
THE COURT:
MS. BENNETT:
Okay.
And, Your Honor, I'd just like to briefly
talk about Chamber of Commerce, since the plaintiffs rely on that
case quite a bit.
ways from this case.
with a rule that limited the individuals to whom an organization
10
And I think it's distinguishable in numerous

First of all, as Your Honor knows, it dealt
could convey political messages to only members.
11
THE COURT:
12
MS. BENNETT:
It's limited to what again?

It limited the individuals to whom
13
organizations could convey political messages or solicitations to
14
only those that were defined as members.
15
members and then subsequently limited, narrowed that definition,
16
and so plaintiffs were coming to challenge the narrowed
17
definition.
18
sending political communications and solicitations to people that
19
were not members under the new definition, so they had already
20
claimed an injury from that rule.
21
free speech rights; whereas I indicated here, Wheaton doesn't
22
claim that it will -- it has started providing contraceptive
23
coverage in violation of its religious beliefs or that it will do
24
so before the safe harbor expires.
25
FEC originally defined
The plaintiffs in that case had already stopped
They'd already limited their
In addition, in FEC there was no formal government safe
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harbor like there is here.
formally said it's not going to enforce the requirement
repeatedly said that.
a situation where the commissioners of the FEC couldn't all agree
on whether to enforce or not, so there was a tie and no one to
break the tie, and so it was -- it wasn't any sort of formal
agreement like there is here.
8
9
I mean, here the government has
In FEC the lack of enforcement was due to
Also in FEC, although a private party could bring an

action to basically force the FEC to sue, if the private party
10
won, the plaintiff would be subject to criminal penalties.
11
as I've said, there's no civil fines or criminal penalties at all
12
involved in here.
13
And
I think FEC is also distinguishable because there, there
14
was no suggestion at all that the agency was thinking about
15
changing its rule, that it was going to try to change the rule to
16
address the very problems that the plaintiffs raised.
17
those reasons we think that FEC is not anywhere near on point in
18
this case.
19
THE COURT:
And so for
Well, do we -- it keeps on being this
20
reference -- they have two arguments.
21
suit by -- in the form of an ERISA action starting in January,
22
correct?
23
theoretical and the FCC is distinguishable -- FEC, sorry, is
24
distinguishable.
25
One is this possibility of
That's -- and so your argument on that is it's too
Their second argument is that we're not exempt and we'll
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never be exempt because we're not like an exempt employer,
therefore, we have to deal with the law and adjust our insurance.
What's your argument on that one?
MS. BENNETT:
THE COURT:
MS. BENNETT:
Well, I think, first of all, Your Honor -I think I'm stating that correctly.
I think -- yes.
I think they say that what
we want to challenge is the -- is the narrowness of the
exemption--
10
THE COURT:
Yes.
MS. BENNETT:
and there's no evidence that that's going
11
to change.
12
at the ANPRM, it makes clear that the ideas suggested there are
13
just that, are ideas.
14
considering other ideas, and that's the whole reason why the
15
government is going through this comment process, to hear about
16
other ideas.
17
I think first of all, Your Honor, if you take a look
That the government is willing and open to
So it's --
THE COURT:
And so at the comment process, then could
18
there be a regulation that says you can't be sued?
19
them that?
20
can you give it to them as a notice of
21
comment?
22
23
24
25
Can you give
What they're asking you to do right now informally,
MS. BENNETT:
after notice and
Only after going through notice and comment,
Your Honor.
THE COURT:
Right.
But, theoretically, you could do that,
you're saying?
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MS. BENNETT:
THE COURT:
(No response.)
You can't do it now.
They're saying all you
have to do is say we are exempt.
the only way we could do it is notice and comment.
at the end of notice and comment have a regulation to say here
are more kinds of exempt entities.
MS. BENNETT:
THE COURT:
MS. BENNETT:
You're saying we can't do that,

But you could
Yes, Your Honor, we could.

Okay.
But I think, Your Honor, I mean, it would
10
sort of -- to do that as part of the rulemaking that's going on
11
now, I think is sort of -- I mean, an odd suggestion.
12
wouldn't -- by the time that rule comes out, the situation will
13
have changed, and so at that point, if plaintiffs aren't
14
satisfied they could bring their claims.
15
suggesting we sort of tie this, a sort of safe harbor against
16
private suits into the rulemaking that's already under way, it
17
wouldn't help them at this time.
18
THE COURT:
No.
It
But if Your Honor's
But they're saying
I'm trying to
19
understand their status of what the coverage of the act is
20
vis-a-vis this plaintiff starting January 1, and can that change
21
after rulemaking?
22
23
MS. BENNETT:
Yes.
Yes, Your Honor.
I think -- my point
is
24
THE COURT:
25
MS. BENNETT:
Why?
It can change because the -- in the
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rulemaking the agency could do any number of things to -- from
providing, like, the proposal which is to allow plaintiffs like
Wheaton to receive health insurance coverage that does not cover
contraception, and instead imposing a requirement on insurance
companies to provide that coverage without shifting the cost to
Wheaton.
There are -- as I said, the ANPRM leaves it open to other
ideas.
employer exemption.
10
It certainly doesn't foreclose changing the religious
THE COURT:
That's all I'm asking.
That is not -- who's
11
going to be covered by the act and who isn't covered by the act,
12
is it necessarily in stone at this moment?
13
MS. BENNETT:
14
of the rulemaking.
15
first point.
That's right, Your Honor.
That's the point
And so -- I mean, I think that would be my
16
My second response, which we sort of went into in our
17
brief is, we think it'd be very difficult for this Court to
18
review that question.
19
think of all the conceivable regulations that could come out of
20
this proposed rulemaking and then consider them one-by-one
21
whether they would be lawful or not.
22
would be an advisory opinion, and so we think that doesn't make
23
sense at this point.
24
25
Basically it would require the Court to
And I think that certainly
And as we said, Your Honor, plaintiffs have the

opportunity, and have indeed taken it, to their credit, to
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participate in the rulemaking process by submitting comments --
THE COURT:
MS. BENNETT:
4
5
6
7
They did take it, did they not?

They did.
They submitted comments on the
ANPRM, at least they alleged in their complaint.

Your Honor, I think I just would, sort of in closing if
Your Honor has no more questions, just -THE COURT:
The only question I have is:
You're saying
that Belmont -- let me make sure I understand.
Belmont Abbey is
in the same procedural posture now, I mean, when it was decided
10
as this case is now?
11
the clarification -- is clarification the correct word here --
12
has changed something in some way?
13
MS. BENNETT:
Or do you agree with the opposing side that
Your Honor, yes.
I think the clarification
14
15
THE COURT:
I mean, one issue that existed in Belmont
16
Abbey was whether or not the safe harbor applied.
17
know it does.
We all now
That's off -- that argument doesn't exist anymore.
18
MS. BENNETT:
19
THE COURT:
20
MS. BENNETT:
That's right.
But otherwise are we in the same posture?
Yes, Your Honor.
And I guess, just to
21
clarify a little bit, Belmont Abbey filed suit before there was
22
any safe harbor, much less a safe harbor clarification, and then
23
subsequently there was a safe harbor.
24
25
Plaintiffs Wheaton filed suit after there was this safe

harbor, but prior to the clarification.
But because it was just

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a clarification, we don't think it changes the analysis.
think that standing is the appropriate analysis as opposed to
mootness.
THE COURT:
MS. BENNETT:
THE COURT:
We
Mootness?
Yes.
Right.
Or ripeness, though, standing or
ripeness?
MS. BENNETT:
THE COURT:
Standing or ripeness, of course, Your Honor.

And the only legal issue that I'm not 100
10
percent -- I'm not clear on is whether standing -- you revisit
11
standing or whether it is really in stone at the time you file
12
suit.
13
diversity even if someone moves.
14
any law on that.
15
it's in stone forever.
I certainly know, you know, if you have diversity you have

I just don't -- if anybody has
Do you, Counsel?
16
Do you have anything further?
17
MS. BENNETT:
18
19
20
21
No, Your Honor.
I'm happy to know it, whether
That's it.
We'd ask you to
dismiss the case for the reasons Judge Boasberg submitted.

THE COURT:
Do you have the same argument going on
anywhere else?
MS. BENNETT:
Sorry, Your Honor.
Yes.
We currently have
22
26 challenges to the regulations; 22 of those are brought by
23
entities that qualify for the safe harbor, and we have or will
24
raise jurisdictional arguments in all of them.
25
THE COURT:
But the only one so far is Nebraska and Judge

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1
2
3
Boasberg?
MS. BENNETT:
Yes.
Those are the only ones we've received
decisions in.
THE COURT:
MS. BENNETT:
And have they been argued anywhere else?

No, Your Honor.
Your Honor, just to
clarify, we also received a decision in another case involving a
for-profit, but the for-profit didn't qualify for the safe
harbor, so it didn't address the jurisdiction on --
THE COURT:
10
Okay.
11
MR. RIENZI:
Right, in Colorado, I know.
Okay.
All right.
Counsel, do you want a few minutes?

On the issue that the
12
Court was just asking about, the law on standing versus mootness,
13
I'd point the Court to Arizonans For Official English, Supreme
14
Court case from 1997 cited in our brief at page 17:
15
"The requisite personal interest that must exist at the
16
commencement of the litigation (standing) must continue
17
throughout its existence (mootness)."
18
I believe what the Court is saying is that the analysis
19
you do about standing is about when the case is filed, and if
20
there's a claim that the defendants have somehow eliminated the
21
injury during the case, the question is one of mootness.
22
Court law is very clear that when the question is one of
23
mootness, the burden is on the defendants, not the plaintiffs.
24
So in the Supreme Court's decision in Friends of Earth v.
25
Laidlaw, which is at page 18 of our brief, the Court makes clear
Scott L.
Wa~~ace,
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36
that the burden is on the defendants when they raise a mootness
argument, that that is a, quote, heavy burden, and that they must
show that it is, quote, absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to occur
again.
That's very important in light of the government's
argument just now, because the government's argument about what
they might do in the ANPRM is that, well, this is all
speculation.
It's just ideas.
They could do any number of
10
things.
We don't disagree that the ANPRM could come up with
11
anything.
12
But what we do know is that they can't possibly carry a burden
We have no idea what will come out of the government.
THE COURT:
13
Yeah, but, you know, this is -- if you're
14
right in its mootness and they have the burden -- we all know you
15
have the burden on ripeness, so I don't know where all the burden
16
helps.
I mean, if it --
17
MR. RIENZI:
18
THE COURT:
Well, here's where it helps, Your Honor.

If they -- if you say they're too speculative
19
so they can't carry their burden, and they say you're too
20
speculative you can't carry your burden, there's nothing under
21
the law that says I must decide this as mootness, ripeness or
22
what have you.
23
MR. RIENZI:
Here's the distinction, Your Honor.
The
24
plaintiffs are not challenging some future maybe regulation that
25
will come out of the ANPRM.
Scott L.
The plaintiffs are challenging an
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actual final rule that governs their behavior now, at least as
concerns private parties.
engaging in speculation.
come up with a year from now.
claim.
So the speculation -- we are not

We're not guessing as to what they may
It has nothing to do with our
So our answer on ripeness is, we know what the rule looks
like.
It requires us to act.
question, well maybe it'll be something else.
10
It's a final rule.
They've issued it.
It covers us now.
There's no ripeness question.
There's no
The reason the speculation matters, is that the government
11
is engaging in its own speculation about ways that it might fix
12
the mess that it's created.
13
If they do, I'll be thrilled.

THE COURT:
14
They may fix this problem next year.

Wheaton College will be thrilled.
Are you familiar with the D.C. Circuit case
15
law that indicates that allegations of injury based on
16
predictions regarding future legal proceedings are too
17
speculative to invoke the jurisdiction of an Article III court?
18
How do you get around that?

MR. RIENZI:
19
I think it's flatly -- you know, I think
20
that's a general statement of principle that is flatly
21
contradicted by the very specific holding in Chamber of Commerce.
22
Generally, that's a principle that -- that is fine.
23
But also I would distinguish between to things, Your
24
Honor.
Whether the actual lawsuit happens next year is at some
25
level speculative, I'll agree with that.
Scott L.
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ball and we don't know.
Wheaton College today is not speculative.
THE COURT:
But the actual coercive impact on
Well, you've already made your decision.
You're not coerced to make it otherwise.
make your decision
MR. RIENZI:
THE COURT:
MR. RIENZI:
THE COURT:
10
You can go ahead and
No, and I'm glad --- consistent with your principles.

We could, Your Honor, but
And you will, you said.
MR. RIENZI:
No, I disagree with their characterization of
11
our pleadings.
12
will not hear our case we are definitely going ahead and offering
13
that insurance.
14
made, and frankly we're here asking the Court to save us from
15
having to make that decision.
16
I don't think we have said that if this Court
As I understand, that's a decision we haven't
Our argument is that Wheaton College should not have to
17
make the decision under the gun.
18
told by the government when you sit down to make your insurance
19
decision, we're going to put a little pressure on you to violate
20
your religious beliefs so that Wheaton College has to weigh on
21
one side its religious convictions, and on the other side the
22
fact that it will be violating federal law.
23
24
25
THE COURT:
Wheaton College should not be
This is the insurance policy that's going to
go into effect when?

MR. RIENZI:
January I, Your Honor.

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THE COURT:
MR. RIENZI:
Of what year?
2013.
And the defendants have been quite
clear that nothing in the ANPRM has anything to do with what will
govern that policy.
and ripeness are talking to you about things that will happen
some time in the future and they have nothing to do with what
will happen on this policy.
So all of their arguments about speculation
They don't dispute that point.
A few other points, Your Honor.
The government referenced
the Belmont Abbey case and argued that the procedural posture was
10
the same.
11
Abbey case.
12
then the safe harbor was put into effect and an amended complaint
13
was filed.
14
Boasberg was you can't talk about the safe harbor creating a
15
mootness problem because they filed a new complaint after the
16
safe harbor.
17
no idea if Judge Boasberg believed that or not.
18
mention the mootness problem.
19
That was not the government's position in the Belmont

In the Belmont Abbey case, a complaint was filed and
And the government's position in its papers to Judge
That was their position in Belmont Abbey.
I have
He simply didn't
But here, where you have the complaint on file and you
20
have a drastic change to the safe harbor last Wednesday -- and
21
again, in Belmont Abbey it was not nearly as clear that the
22
original safe harbor didn't apply.
23
have to swear to something that it simply could not swear to.
24
would have to swear that it hasn't provided them after February
25
10, 2012.
They can't swear to that.
In this case, Wheaton would

It
We explained that to the
scott L. Wa22ace, RDR, CRR, Officia2 Court Reporter

(202)354-3196 * scott2yn01@ao2.cam
JA 238
40
government, and to their credit, they changed it and we
appreciate that.
on the suit is a mootness question, and mootness means they need
to prove it's absolutely clear the problem couldn't recur again,
and you've just heard the government argue that they don't know
what comes out of the ANPRM.
sure what they're going to do.
argument.
But that change and the impact of that change
THE COURT:
It's too speculative.
They're not
That's not enough for a mootness
And do you think that the Chamber of Commerce
10
controls the ripeness question, too?
11
going up or down with the Chamber of Commerce.
12
and carries you for both arguments, whether you call it mootness,
13
standing and for ripeness, because you've got to clear the
14
ripeness hurdle, too, and that we know is on your shoulders.
15
MR. RIENZI:
Yes.
Is that basically -- you're

Either it applies
And I would say our answer on the
16
ripeness hurdle is simply there is no question what rule applies
17
to us today vis-a-vis private suits.
18
rule's applicable to us.
19
ripeness question about that rule.
20
Honor, saying I want to challenge what is going to be issued next
21
August, I would agree with the defendants and I would agree with
22
the Court, that's not ripe.
23
THE COURT:
The government agrees that
It's applicable to us now.
There is no
If I were in court, Your
But we're not bringing that case.
But we don't know what they're going to do in
24
order to get you off the hook.
25
to try to do something, whether it meets your approval or not.
Scott L.
Wa~~ace,
We just know that they're going
ROR, CRR,
(202)354-3196
Officia~
Court Reporter
scott~yn01@ao~.com
JA 239
41
There is going to be government regulation that's going to be
different than what it is today.

MR. RIENZI:
That's a guarantee.
Well, I agree that's the claim, and I'm
willing to take it on faith that it's a guarantee.
My point is that has nothing to do with the interim.
doesn't tell you anything about the burden in the interim.

THE COURT:
It
And if I -- and needless to say, if there's an
election and it goes to the -- against the current president,
then it's moot.
10
Then we --
MR. RIENZI:
It's theoretically, possible, Your Honor.
11
We'd be happy for getting out of this predicament anyway we can,
12
frankly.
13
THE COURT:
Okay.
Excuse me.
14
John, can you -- excuse me for a moment.
15
(Brief pause in proceedings.)
16
THE COURT:
Sorry.
17
MR. RIENZI:
Yes.
Okay.
Anything else, sir?
A few more brief responses, Your Honor.
18
The government says that they could, in fact, save us from the
19
burden of private lawsuits, but it would take a rulemaking to do
20
that.
21
agree to a consent order or you could issue an injunction
22
that those requirements do not apply to Wheaton.
First, I don't think that's actually true.
23
THE COURT:
24
MR. RIENZI:
25
THE COURT:
They could
Yeah, but that means you win.

Yes.
I mean, let's not get confusing here.

Yes,
JA 240
42
they'll obey my orders.
MR. RIENZI:
~,
today.
Yes.
But I'm saying they could agree to it
They don't need to wait for a rulemaking.

Also, as concerns rulemaking, Your Honor, the August 2011
rule which initially started all the trouble was issued with the
defendant saying they don't need to wait for notice and comment.
So it's a little bit odd for the government to say when we're
going to impose these burdens on you, we don't need to wait for
notice and comment.
10
THE COURT:
No, that's
-~
I mean, there's a long line of
11
cases in administrative law between clarifying versus initiating
12
a new rule and I'm not going to make that decision, nor am I
13
going to make it for the government, but it's crystal clear that
14
there's a difference, so I don't think that one will be --
15
MR. RIENZI:
But, Your Honor, this would be a
16
clarification of the same rule that they issued without notice
17
and comment the first time.
18
THE COURT:
19
Have you got a stronger point than that one?
20
MR. RIENZI:
21
I don't think so, but anyway.
I sure do, Your Honor.
Okay.
I've got several,
actually.
22
THE COURT:
23
MR. RIENZI:
24
argument is that
25
THE COURT:
Go ahead.
On ERISA, Your Honor, the government's
That can never -- there's nothing about ERISA
scott L.

(202)354-3196 * scott~yn01@ao~.co.m
JA 241
43
1
2
that I can ever understand.

MR. RIENZI:
Well, let me point to some very clear
language in ERISA and hopefully make ERISA a little bit easier,
without pretending that I can fully understand the whole statute
either.
Section 1132, the section that authorizes the private
actions against the plaintiffs, A1-B of that section authorizes a
participant or beneficiary, quote, to recover benefits due to him
under the terms of this plan, to enforce his rights under the
10
terms of the plan, or to clarify his rights to future benefits
11
under the plan.
12
In other words, it is not simply forward looking and it is
13
not simply injunctive.
It allows for the plaintiff to, quote,
14
recover benefits due to him.
15
It is not simply forward looking.
16
THE COURT:
Right.
That's equitable insofar as future
17
benefits.
18
would order you to pay to cover?
19
20
It's a -- you mean that that would mean that somebody
MR. RIENZI:
Order us to pay to cover for something that
has already happened, is my point, it is
21
THE COURT:
22
MR. RIENZI:
23
THE COURT REPORTER:
24
THE COURT:
25
That is equitable.
That's like back pay.

-- not simply forward looking.
One at a time.
I'm sorry.
That's like back pay.
sure you can say it's damages versus equitable.
Scott L.
I'm not
That would be

(202)354-3196 * scott~yn01@ao~.com
JA 242
44
1
2
another long debate.
I'm not sure that it's right.
But the -- I'm sorry, there was one thing.
Oh, in all
these years, how long a period do you know -- did you cover
contraceptives?
know what time frame?
I realize that by some error you did.
MR. RIENZI:
We don't know.
Do you
The current people at Wheaton
were not around whenever that happened.
What I think happened,
frankly, is that over the past 10 or 12 years or so the
definition of what's within the basket of contraceptives has
10
changed, or at least some people view it as having changed, and
11
Wheaton is a Protestant institution which is generally perfectly
12
fine with contraceptives, but over the past few years there have
13
been drugs added to that basket which they hadn't focused on.
14
I don't when it started.
15
objection to it and they've tried to pull it out, and they have
16
pulled it out.
17
for is simply a court order that we're allowed to keep it out,
18
without having to face --
19
I know that they have a sincere
And, honestly, what we're here asking the Court
THE COURT:
But you haven't had any troubles the way that
20
Belmont Abbey's had in the past with people complaining about
21
your policies not having covered --
22
So
MR. RIENZI:
We haven't faced anything like the EEOC
23
investigations Belmont Abbey has.
That said, we didn't get it
24
out of our policy until quite recently.
25
of its policies a long time ago.
Belmont Abbey had it out
Scott L. wa22ace, RDR, CRR, Officia2 Court Reporter

(202)354-3196 * scott2yn02@ao2.com
JA 243
45
Let me make a final argument, Your Honor.
The government
argues that, well, Wheaton College hasn't caved to the pressure,
therefore there's no coercion.
a matter of civil rights and constitutional law.
case that unless you give into the pressure you haven't been
coerced.
private suits against anyone who puts an Obama for president sign
on the lawn before the election and said those private suits will
happen some time next year, some people might say, well, I don't
And that simply cannot be true as

It can't be the
If the government were to impose a law that authorized
10
want to face the suits and I'm taking down my Obama for president
11
sign.
12
they say, I'm going to stand on my rights and put up my sign.
13
Both of those people have been coerced by the government, and
14
that's the coercion that Wheaton experiences now.
15
ultimately it turns out that we're right, that that is illegal
16
under RFRA and the First Amendment or the government's right that
17
it's perfectly legal, our point is simply:
18
and we're asking for the Court to address it now.
19
that for real right now and has decisions to make right now.
20
They shouldn't be forced to do it with the government's pressure
21
on their back, which the government admits they can take off
22
their back.
Some people may say, full stearn ahead, I don't care what
23
24
THE COURT:
25
under advisement.
Okay.
Thank you.
Whether
That is an injury now

Wheaton feels
The Court will take it
Thank you.
Scott L.
Wa~~ace,
RDR, CRR,
(202)354-3~96
Oicia~
Court Reporter
scott~ynOl@ao~.com
JA 244
46
(Proceedings adjourned at 3:28 p.m.)
2
C E R T I F I CAT E
3
4
I, Scott L. Wallace, RDR-CRR, certify that

the foregoing is a correct transcript from the record of
proceeding
6
7
in the
ab~entitled
______ - __ yrlf.________
L. Wallace, RDR, CRR
Of icial Court Reporter
matter.
;:,
--?h'!/!~--Date
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
~--
Scott L.

(202)354-3196 * scott~yn01@ao~.com
JA 245
Case 1:12-cv-01169-ESH Document 20 Filed 08/24/12 Page 1 of 18

WHEATON COLLEGE,
Plaintiff,
v.
Civil Action No. 12-1169 (ESH)

Defendants.
MEMORANUM OPINION
Wheaton College, a Christian liberal arts college located in Wheaton, Illinois, has sued,
claiming that regulations defendants issued pursuant to the Patient Protection and Affordable
Care Act, Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010), violates the First Amendment,
the Administrative Procedure Act, and the Religious Freedom Restoration Act. (Complaint, July
18, 2012 [Dkt. No. 1] (Compl.) 12, 68.) The regulations require covered employers to
offer group health insurance plans that provide women with certain forms of preventive care,
including all FDA-approved forms of contraception, without cost sharing. Wheaton argues that
it cannot offer health plans that cover emergency contraceptives, namely Plan B (levonorgestrel,
or the morning-after pill) and Ella (ulipristal, or the week-after pill), consistent with its
religious beliefs.
Wheaton moved for a preliminary injunction on August 1, 2012. (Motion for
Preliminary Injunction, August 1, 2012 [Dkt. No. 4] (Pl. Mot.).) On August 10, defendants
moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Wheaton lacks standing and
that its claims are not ripe. (Defendants Motion to Dismiss, August 10, 2012 [Dkt. No. 17]
JA 246
(Def. Mot.).) Wheaton opposed defendants motion (August 16, 2012 [Dkt. No. 18] (Pl.
Oppn)), defendants filed a reply in further support thereof (August 20, 2012 [Dkt. No. 19]
(Def. Reply)), and the Court heard oral argument. (8/23 Tr.) Based on this record, the Court
concludes that, in light of concrete steps defendants are taking to address Wheatons concerns,
including their commitment not to enforce the challenged regulations against Wheaton while
accommodations are being negotiated, Wheaton has not alleged a concrete and imminent injury
and that its claims are not fit for judicial review. For the reasons stated, the Court will grant
defendants motion to dismiss.
BACKGROUND
This action is one of twenty-six lawsuits challenging the Affordable Care Acts
preventive services regulations with regard to their requirements involving contraception.1 In
recent decisions granting the federal defendants motion to dismiss on standing and ripeness
grounds in two of these cases, Judges Urbom and Boasberg described the relevant statutory and
regulatory background in detail. See Nebraska ex rel. Bruning v. U.S. Dept of Health & Human
Servs., --- F. Supp. 2d ----, 2012 WL 2913402, at *25 (D. Neb. 2012) (Urbom, J.); Belmont
Abbey College v. Sebelius, --- F. Supp. 2d ----, 2012 WL 2914417, at *13 (D.D.C. 2012)
(Boasberg, J.). In summary, the Affordable Care Act (ACA) requires group health plans to
provide women with preventive care and screenings at no charge to the patient. Id. at *1
(quoting 42 U.S.C. 300gg-13(a)(4)). While certain health plans are grandfathered,2 the rest
must, with respect to women, cover such additional preventive care and screenings . . . as
1
See The Becket Fund for Religious Liberty HHS Mandate Information Central,
http://www.becketfund.org/hhsinformationcentral/ (last visited August 24, 2012).
Wheaton alleges that its plans are not grandfathered (Compl. 44) and defendants do not
dispute this assertion.
2
JA 247
provided for in comprehensive guidelines supported by the Health Resources and Services
Administration (HRSA) without imposing any cost sharing requirements. Id. 300gg13(a)(4).
The guidelines subsequently adopted by HRSA require insurance plans to cover, inter
alia, all contraceptive methods, including Plan B and Ella, sterilization procedures, and
patient education and counseling for all women with reproductive capacity that are approved by
the FDA. Womens Preventive Services: Required Health Plan Coverage Guidelines,
http://www.hrsa.gov/womensguidelines/ (last visited August 24, 2012); see Belmont Abbey
College, 2012 WL 2914417, at *12 (citing FDA Birth Control Guide,
http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited August
24, 2012)). Defendants 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 women included in HRSAs guidelines. Id. at *2 (alterations in the
original) (quoting Group Health Plans and Health Insurance Issuers Relating to Coverage of
Preventive Services Under the ACA, 76 Fed. Reg. 46,621, 46,62223 (August 3, 2011) (interim
final rules with request for comments); citing 45 C.F.R. 147.130).
Responding to comments received about a prior interim rule, defendants acknowledged
the effect on the religious beliefs of certain religious employers if coverage of contraceptive
services were required, and granted HRSA the authority to exempt certain religious employers
from [its] Guidelines where contraceptive services are concerned. 76 Fed. Reg. at 46,623. The
interim final rule provided a definition for religious employers that included houses of worship
JA 248
but did not include institutions like Wheaton College.3 (See Compl. 105110; Def. Mot. at 7
8.)
Defendants requested comments on the interim final rule and specifically on its definition
of religious employer. 76 Fed. Reg. at 46,623. In response to the more than 200,000
comments defendants received, defendants published final regulations adopting the definition of
religious employer in the interim final rule and simultaneously establishing a temporary
enforcement safe harbor for non-profit employers that did not meet that definitions criteria but
that professed religious objections to providing coverage for contraceptives. Group Health Plans
and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 77
Fed. Reg. 8,725, 8,7258,729 (February 15, 2012) (final rules). Defendants 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.
Id. at 8,728.
Defendants have announced that, during the temporary enforcement safe harbor, the
government will not take any enforcement action against any employer, group health plan, or
group health insurance issuer with respect to a non-grandfathered plan that fails to cover some or
all recommended contraceptive services and that is sponsored by an organization that meets the
following criteria:
1. The organization is organized and operates as a non-profit entity.
3
The interim final rule defined a religious employer [as] one that: (1) Has the inculcation of
religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3)
primarily serves persons who share its religious tenets; and (4) is a non-profit organization
under the Internal Revenue Code. 76 Fed. Reg. at 46,623.
4
JA 249
2. From February 10, 2012 onward, contraceptive coverage has not been
provided at any point by the group health plan established or maintained by the
organization, consistent with any applicable [s]tate law, because of the religious
beliefs of the organization.
3. . . . [T]he group health plan established or maintained by the organization (or
another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . stat[ing] that
contraceptive coverage will not be provided under the plan for the first plan year
beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 13 above . . . .
HHS, Guidance on the Temporary Enforcement Safe Harbor, February 10, 2012 (Feb. 2012
Guidance) at 3 (footnote omitted), available at
http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf.
In a revised guidance, defendants clarif[ied] . . .
(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 that 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 the Temporary Enforcement Safe Harbor, August 15, 2012 (Aug. 2012
Guidance) at 1 n.1, available at http://cciio.cms.gov/resources/files/prev-services-guidance08152012.pdf; see id. at 34 (stating revised criteria for the temporary enforcement safe harbor
in accordance with the above).4
Defendants issued the August 2012 Guidance in response to this lawsuit. In its complaint,
Wheaton alleged that it was not eligible for the temporary enforcement safe harbor as described
in the February 2012 Guidance because Wheatons employee insurance plans . . . currently
provide coverage for certain contraceptives and inadvertently provided coverage for a short
period after February 10, 2012 for other now-excluded contraceptives, such as Plan B and Ella.
(Compl. 120; see also Pl. Mot. at 79.) In their motion to dismiss, defendants announced an
interpretation of the safe harbor criteria encompasses Wheaton, and this interpretation has now
5
JA 250
The safe harbor provides an additional year for these group health plans and group
health insurance issuers (i.e., until the first plan year beginning on or after August 1, 2013) to
comply with HRSA guidelines regarding contraceptive coverage. Id. at 3. It also provides time
for defendants, as they announced in a March 2012 Advanced Notice of Proposed Rulemaking
(ANPRM), to expeditiously develop and propose changes to the final regulations regarding
preventive services that would meet two goalsaccommodating non-exempt, non-profit
religious organizations religious objections to covering contraceptive services and assuring that
participants and beneficiaries covered under such organizations plans receive contraceptive
coverage without cost sharing. Certain Preventive Services Under the ACA, 77 Fed. Reg.
16,501, 16,503 (March 21, 2012). In the ANPRM, defendants thus formally declar[ed] their
intention to amend the final regulations with regard to contraceptive coverage and solicit[ed]
input from interested parties and the public. Belmont Abbey College, 2012 WL 2914417, at *3.
Defendants represent that, having received comments on the ANPRM, they will publish a
notice of proposed rulemaking, which will be subject to further public comment, before [they]
issue further amendments to the preventive services coverage regulations; defendants will
finalize the amendments . . . such that they are effective before the end of the temporary
enforcement safe harbor. (Def. Mot. at 10 (citing 77 Fed. Reg. at 16,501, 16,503, 16,508).)
Wheaton College brought suit, claiming that the regulations as currently fashioned violate
the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. (Counts I, XIII), the First
Amendment (Counts IIX, XIII), and the Administrative Procedure Act, 5 U.S.C. 701 et seq.
(Counts XIXIV).
been formalized in the August 2012 Guidance. (Def. Mot. at 9.)

6
JA 251
ANALYSIS
Defendants have moved to dismiss on standing and ripeness grounds. Because
defendants claims go to the Courts jurisdiction, the Court must consider them before addressing
Wheatons motion for a preliminary injunction. Steel Co. v. Citizens for a Better Envt, 523 U.S.
83, 9495 (1998). Wheaton bears the burden of establishing that this Court has jurisdiction over
its claims. Id. at 104.
I.
STANDING
[T]o establish constitutional standing, plaintiffs must satisfy three elements: (1)
they must have suffered an injury in fact that is concrete and particularized and
actual or imminent, not conjectural or hypothetical; (2) the injury must be
fairly traceable to the challenged action of the defendant; and (3) it must be
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 56061 (1992)).
At issue here is whether Wheaton College has alleged an injury in fact. In Whitmore v.
Arkansas, 495 U.S. 149 (1990), the Supreme Court summarized its case law and flatly stated:
[W]e have said many times before and reiterate today: Allegations of possible future injury do
not satisfy the requirements of Art[icle] III. A threatened injury must be certainly impending to
constitute injury in fact. Pub. Citizen, Inc. v. Natl Highway Traffic Safety Admin., 489 F.3d
1279, 1294 (D.C. Cir. 2007) (alterations in the original) (quoting Whitmore, 495 U.S. at 158
(collecting cases)).
Wheaton concedes that it does not face an impending government enforcement action. It
is undisputed, given the August 2012 Guidance, that Wheaton qualifies for the temporary
enforcement safe harbor. (Def. Mot. at 12 (citing the declaration of HHS official Michael Hash
JA 252
5); Pl. Oppn at 10.) Furthermore, Wheaton has indicated that it will self-certify its eligibility
and take advantage of the safe harbor pursuant to the August 2012 Guidances requirements.5
Accordingly, the government will not take any enforcement action against [Wheaton College]
until the first plan year that begins on or after August 1, 2013. (Def. Mot. at 12 (citing Aug.
2012 Guidance at 3).) Wheaton College may therefore continue to offer its current health plans,
which do not cover Plan B and Ella, for the upcoming plan year without fear of government
interference.6
5
The upcoming plan year for Wheatons employee insurance plans will begin on January 1,
2013. (Compl. 43.) In opposing defendants motion to dismiss, Wheaton stated that as of that
date, Wheatons health insurance will be in violation of federal law. . . . Wheaton will now be
relieved from government enforcement of the [preventive services regulations] for an extra year,
[but] it will still violate federal law as of January 1. (Pl. Oppn at 11.) With good reason, the
Court and defendants (see Def. Reply at 2) read this as a statement by Wheaton that it would
continue its current plans, which do not cover Plan B and Ella, for the upcoming year. However,
Wheatons lawyer backpedaled at oral argument and asserted that his client has yet to make a
final decision about whether it would continue its current coverage or begin offering health plans
that include emergency contraceptives. (8/23 Tr. at 33.)
6
At oral argument, counsel for Wheaton claimed that the August 2012 Guidance, which makes
Wheaton eligible for the temporary enforcement safe harbor, is irrelevant to the standing analysis
because the standing inquiry [is] focused on whether the party invoking jurisdiction had the
requisite stake in the outcome when the suit was filed, Davis v. FEC, 554 U.S. 724, 734 (2008)
(emphasis added), and when Wheaton filed its complaint it alleged that, under the criteria
announced in the February 2012 Guidance that were operative at the time, it was not eligible.
(Compl. 120; see 8/23 Tr. at 34.) However, the requirement that a plaintiff establish standing
continue[s] throughout the course of the litigation, Johnson v. Holway, No. 03-cv-2513 (ESH),
2005 WL 3307296, at *25 (D.D.C. Dec. 6, 2005), because [i]f the plaintiff loses standing . . .
during the pendency of the proceedings . . ., the matter becomes moot, and the court loses
jurisdiction. McNair v. Synapse Grp. Inc., 672 F.3d 213, 227 n.17 (3d Cir. 2012) (some
alterations in the original) (quoting Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir.
2001)). Indeed, the standing requirement subsists through all stages of federal judicial
proceedings, and it is not enough that a dispute was very much alive when suit was filed
because [t]he parties must continue to have a personal stake in the outcome of the lawsuit.
Lewis v. Contl Bank Corp., 494 U.S. 472, 477 (1990) (citations and some internal quotation
marks omitted) (quoting Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)). In sum, Standing
represents a jurisdictional requirement which remains open to review at all stages of the
litigation. Natl Org. for Women v. Scheidler, 510 U.S. 249, 255 (1994).
8
JA 253
Wheaton protests that it still alleges a certainly impending injury, Lujan, 504 U.S. at
564 n.2 (some internal quotation marks omitted) (quoting Whitmore, 495 U.S. at 158), because it
may be subject to ERISA lawsuits attempting enforcement of the preventive services regulations.
(Pl. Oppn at 11.) However, even crediting Wheatons assertion that it is completely exposed
to such actions (id. (citing 29 U.S.C. 1132(a), 1185d(a)(1))), it is well-established that the
theoretical possibility of harm from future litigation does not, without more, confer standing.
Allegations of injury based on predictions regarding future legal proceedings are . . . too
speculative to invoke the jurisdiction of an Article III Court. City of Orrville v. FERC, 147
F.3d 979, 987 (D.C. Cir. 1998) (alteration in the original) (quoting Platte River Whooping Crane
Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992) (citing Whitmore, 495
U.S. at 157)); see also Salvation Army v. Dept of Cmty. Affairs of New Jersey, 919 F.2d 183,
193 (3d Cir. 1990) (concluding that the theoretical possibility of a suit against [plaintiff] by a
program beneficiary was not sufficient to establish jurisdiction); Belmont Abbey College, 2012
WL 2914417, at *15 (rejecting an argument identical to that raised by Wheaton College (citing
Salvation Army, 919 F.2d at 193)).
Furthermore, Wheaton has not demonstrated that there is anything actual or imminent,
Whitmore, 495 U.S. at 155, about the specter of a participant [in] or beneficiary of one of
Wheatons health plans suing under ERISA, 29 U.S.C. 1132(a), to challenge the fact that the
Furthermore, although the burden lies with the party asserting mootness, Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), the fact that a case
becomes moot when plaintiff loses standing, McNair, 672 F.3d at 227 n.17, does not mean that it
is somehow defendants burden to show that plaintiff no longer faces imminent injury. To the
contrary, [t]he party asserting federal jurisdiction bears the burden of establishing [that it has
standing] at every stage of the litigation, as it does for any other essential element of the case.
Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir. 2010) (quoting Cent. Delta Water
Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
9
JA 254
plan does not cover Plan B or Ella. To the contrary, the allegations in Wheatons complaint
support the conclusion that this is a conjectural or hypothetical possibility. Whitmore, 495
U.S. at 155 (quoting Lyons, 461 U.S. at 10102). (See Compl. 2029, 3738.) Each year, all
Wheaton College students and full-time employees commit themselves to the Christian
community of living, learning, and serving that Wheaton College aspires to be . . . by signing
Wheaton Colleges Community Covenant. (Id. 2526.) That Covenant recognizes that
Scripture condemns the taking of innocent life. (Id. 28.) Wheaton alleges that it believes
and teaches that abortion ends a human life and is a sin (id. 29); that its religious beliefs
prohibit it from deliberately providing insurance coverage for drugs, procedures, or services
inconsistent with its faith, in particular abortion-inducing drugs (id. 37); and that these
include, in Wheatons view, Plan B and Ella. (Id. 90.) Therefore, the possibility that Wheaton
College health plan participants, all of whom have signed the Community Covenant, or
beneficiaries, who are likely family members of Wheaton employees, would sue Wheaton to
secure free access to Plan B and Ella is remote at best.7 It is therefore reasonable to conclude
that such private suits are not certainly impending. Whitmore, 495 U.S. at 158.
7
Wheaton provides health insurance for its 709 full-time employees. (Compl. 35; Pl. Oppn at
1.) At oral argument, counsel for Wheaton affirmed the complaints allegation that all of
Wheatons full-time employees, and therefore all of its health plans participants, have signed the
Community Covenant. (8/23 Tr. at 7.) The Court recognizes that Wheaton also provides health
insurance for its employees family members (Pl. Mot. at 7), who may not necessarily share the
views described in Wheatons complaint. Nonetheless, counsel for Wheaton admitted that he did
not know if anyone had ever asked Wheaton to cover Plan B or Ella, and that he had no concrete
evidence to support his claim that a private ERISA suit is a realistic threat. (8/23 Tr. at 910; id.
at 32 ([W]hether the actual lawsuit happens next year is at some level speculative . . . . We
dont have a crystal ball and we dont know . . . .).) See Salvation Army, 919 F.2d at 193
(Nothing in the current record indicates that [plaintiff] has been threatened with suit . . . or
provides any other reason to believe that [plaintiffs] professed fear of a . . . suit is a realistic
one.).
10
JA 255
In arguing to the contrary, Wheaton relies heavily, if not exclusively, on Chamber of

Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995). Wheatons reliance is misplaced. In Chamber
of Commerce, the Circuits conclusion that plaintiffs had standing to challenge a Federal Election
Commission regulation on political speech was premised on its belief that a government
enforcement action, even if not imminent, was nonetheless likely. While the Chamber of
Commerce plaintiffs were not faced with any present danger of an enforcement proceeding
because the Commission could not act while it was tenuously split three-three, the Circuit held
that plaintiffs had standing because [n]othing would prevent[] the Commission from
enforcing its rule at any time with, perhaps, another change of mind of one of the
Commissioners. 69 F.3d at 603; see id. at 60304 (A party has standing to challenge, preenforcement, even the constitutionality of a statute if First Amendment rights are arguably
chilled, so long as there is a credible threat of [government] prosecution. (citing, inter alia,
Virginia v. Am. Booksellers Assn, 484 U.S. 383, 39293 (1988) (finding plaintiffs had standing
to bring a pre-enforcement First Amendment challenge because [t]he [s]tate has not suggested
that the newly enacted law will not be enforced and plaintiffs have alleged an actual and wellfounded fear that the law will be enforced against them))).
Here, however, the governments commitment not to act against employers that qualify
for the temporary enforcement safe harbor was the product of sustained agency and public
deliberation, see 77 Fed. Reg. at 8,72627, and it represents a final decision, see 77 Fed. Reg. at
16,50203, that has been reiterated twice. See Feb. 2012 Guidance; Aug. 2012 Guidance.
Wheaton has not even argued that the Court should question the governments promise not to
enforce the preventive services regulations against it while defendants work with Wheaton and
others to revise them. This alone serves to distinguish Chamber of Commerce, where there was
11
JA 256
no formal commitment not to prosecute and an enforcement action was likely enough that even
counsel for the government agreed at oral argumentas he really had tothat he would not
advise [plaintiffs] to ignore the rule that they were challenging. 69 F.3d at 603.
Moreover, the Chamber of Commerce plaintiffs alleged that in the prior election cycle
they responded to the issuance of the FEC regulation by ceasing the political activity that the
regulation affected. Id. at 602, 603. They thus substantiated their allegations regarding the
chilling effect of the challenged regulation on their constitutionally protected speech by putting
forward a credible claim of specific present objective harm. Bigelow v. Virginia, 421 U.S.
809, 81617 (1975) (quoting Laird v. Tatum, 408 U.S. 1, 14 (1972)).
Therefore, the fact that the Circuit in Chamber of Commerce also cited plaintiffs First
Amendment claims and the potential that plaintiffs would be subject to [private] litigation
challenging the legality of their actions, 69 F.3d at 60304, provides scant support for
Wheatons arguments. Wheaton is unquestionably exempt from government enforcement
actions during the safe harbor and it has indicated, in opposing defendants motion to dismiss,
that it will not compromise its beliefs in response to the preventive services regulations during
that period. (Pl. Oppn at 1011.) As noted above (see supra n.5), Wheatons counsel retreated
from this unequivocal statement of its future plans at oral argument, and described the coercive
effect of the governments preventive services regulations on Wheatons decision as the source
of Wheatons present injury. (8/23 Tr. at 12; see id. at 813, 18, 3233, 39.) However,
allegations of chilling injury are not sufficient basis for standing to challenge a government
action, at least when the chill is subjective and not substantiated by evidence that the
government action has a present and concrete effect. Salvation Army, 919 F.2d at 193
12
JA 257
(emphasis added) (quoting Laird, 408 U.S. at 13) (collecting cases)). Indeed, the Supreme Court
has emphasized that while its precedent
recognize[s] that governmental action may be subject to constitutional challenge
even though it has only an indirect effect on the exercise of First Amendment
Rights, . . . these decisions have in no way eroded the established principle that
to entitle a private individual to invoke the judicial power to determine the
validity of executive or legislative action he must show that he has sustained, or is
immediately in danger of sustaining, a direct injury as the result of that
action . . . .
Laird, 408 U.S. at 13 (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)). Wheaton has not
[met] this test; [its] claim, simply stated, is that [it] disagree[s] with the judgments made by the
Executive Branch with respect to what preventive services health insurance plans must cover,
and that the very existence of these regulations (notwithstanding the fact that they are presently
in flux and that the government will not enforce them against Wheaton while they are being
amended to address Wheatons concerns) produces a constitutionally impermissible chilling
effect upon the exercise of [its] First Amendment Rights. Id. But [a]llegations of a subjective
chill are not an adequate substitute for a claim of specific present objective harm or a threat of
specific future harm; the federal courts established pursuant to Article III of the Constitution do
not render advisory opinions. Id. at 1314 (quoting United Pub. Workers of Am. (C.I.O.) v.
Mitchell, 330 U.S. 75, 89 (1947)).
Wheaton has not demonstrated that it has standing.
II.
RIPENESS
In addition, Wheatons claims are not ripe.8 In assessing the prudential ripeness of a
case, courts consider two factors: the fitness of the issues for judicial decision and the extent
8
Judges Urbom and Boasberg concluded the same as to the almost identical claims raised by the
plaintiffs before them. See Nebraska ex rel. Bruning, 2012 WL 2913402, at *2024; Belmont
Abbey College, 2012 WL 2914417, at *1015.
13
JA 258
to which withholding a decision will cause hardship to the parties. Am. Petroleum Inst. v.
EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).
Wheaton argues that its claims are fit for judicial decision because the preventive services
regulations are binding legal rules that constrain Wheatons choices with regard to the health
insurance purchasing decisions. (Pl. Oppn at 2122, 2627.) Having rejected a similar standing
argument, the Court will reject Wheatons ripeness argument as well. The two doctrines are
closely related. See Allen v. Wright, 468 U.S. 737, 750 (1984); Belmont Abbey College, 2012
WL 2914417, at *10. Yet, they are motivated by somewhat different concerns. The standing
doctrine reflects the constitutional imperative that federal courts sit solely[] to decide on the
rights of individuals, Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 598
(2007) (quoting Marbury v. Madison, 1 Cranch 137, 170 (1803)), and must refrai[n] from
passing upon the constitutionality of an act . . . unless obliged to do so in the proper performance
of [the] judicial function, when the question is raised by a party whose interests entitle him to
raise it. Id. (alterations in the original) (quoting Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, 454 U.S. 464, 474 (1982)). By ensuring that plaintiffs have
standing, courts enforce Article IIIs limitations on their own powers.
Ripeness, on the other hand, is also concerned with the separation of powers, particularly
where agency review is concerned. In addition to preserving the proper role of courts under
Article III, the ripeness doctrine prevent[s] the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over administrative policies,
and also . . . protect[s] the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the challenging parties. Natl Park
14
JA 259
Hospitality Assn v. Dept of the Interior, 538 U.S. 803, 80708 (2003) (quoting Abbott Labs.,
387 U.S. at 14849). The fitness requirement of the ripeness inquiry thus protect[s] the
agencys interest in crystallizing its policy before that policy is subjected to judicial review and
the courts interests in avoiding unnecessary adjudication and in deciding issues in a concrete
setting. Am. Petroleum Inst., 683 F.3d at 387 (quoting Wyo. Outdoor Council v. U.S. Forest
Serv., 165 F.3d 43, 49 (D.C. Cir. 1999)). As such, the fitness of an issue depends in large part
on whether the agencys action is sufficiently final. Id. (quoting Atl. States Legal Found. v.
EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)).
Courts decline to review tentative agency positions because doing so severely
compromises the interests the ripeness doctrine protects: The agency is denied
full opportunity to apply its expertise and to correct errors or modify positions in
the course of a proceeding, the integrity of the administrative process is
threatened by piecemeal review of the substantive underpinnings of a rule, and
judicial economy is disserved because judicial review might prove unnecessary if
persons seeking such review are able to convince the agency to alter a tentative
position.
Id. (emphasis added) (quoting Pub. Citizen Health Research Grp. v. FDA, 740 F.2d 21, 31 (D.C.
Cir. 1984)).
Because they are in the process of being amended, see 77 Fed. Reg. at 16,501 (ANPRM),
the preventive services regulations are by definition a tentative agency position in which the
agency expressly reserves the possibility that its opinion might change. Birdman v. Office of
the Governor, 677 F.3d 167, 173 (3d Cir. 2012) (internal quotation marks and alterations
omitted) (quoting Natural Res. Defense Council v. FAA, 292 F.3d 875, 883 (D.C. Cir. 2002)).9
9
Wheaton protests that its challenge to the [preventive services regulations] raises questions of
law largely independent of context-specific facts (Pl. Oppn at 22), and that if the issue raises a
purely legal question . . . [courts] assume its threshold suitability for judicial determination.
Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). However, even were the Court
to agree that Wheatons claims are purely legal, that does not end the inquiry. After deciding
15
JA 260
The ANPRM is clearly not some non-substantive, thinly veiled attempt [by defendants] to
evade review. Belmont Abbey College, 2012 WL 2914417, at *13 (quoting Am. Petroleum
Inst., 683 F.3d at 388); accord Nebraska ex rel. Bruning, 2012 WL 2913402, at *23 (the fact that
the preventive services regulation itself describes the temporary enforcement safe harbor, and
that the agencies have undertaken a new proposed rulemaking[,] dispels the notion that the
defendants are engaged in review-evading gamesmanship).10 And the fact that defendants may
have settled on a definition of the religious employers that will be exempted from certain of
the preventive services requirements11 is irrelevant given that the requirements themselves are
anything but final. See id. at *22.
that an issue raises a purely legal question, courts must still consider whether the agency or
the court will benefit from deferring review until the agencys policies have crystallized and the
question arises in some more concrete and final form. Eagle-Picher Indus., 759 F.2d at 915
(quoting Abbott Labs., 387 U.S. at 149); see Belmont Abbey College, 2012 WL 2914417, at *14
(courts should refrain from intervening into matters that may best be reviewed at another time
or in another setting, even if the issue presented is purely legal (quoting Full Value Advisors
v. SEC, 633 F.3d 1101, 1106 (D.C. Cir. 2011)).
10
Defendants have taken significant steps toward revising the preventive services regulations:
They have published their plan to amend the rule to address the exact concerns
[p]laintiff raises in this action and have stated clearly and repeatedly in the
Federal Register that they intend to finalize the changes before the enforcement
safe harbor ends. . . . Not only that, but [d]efendants have already initiated the
amendment process by issuing an ANPRM. . . . The government, moreover, has
done nothing to suggest that it might abandon its efforts to modify the rule
indeed, it has steadily pursued that courseand it is entitled to a presumption that
it acts in good faith. See . . . Comcast Corp. v. F.C.C., 526 F.3d 763, 769 n.2
(D.C. Cir. 2008) (We must presume an agency acts in good faith . . . .).
Belmont Abbey College, 2012 WL 2914417, at *9 (some internal quotation marks and citations
omitted).
11
In addition, counsel for the defendants stated at oral argument that the ANPRM certainly
doesnt foreclose changing the religious employer exemption. (8/23 Tr. at 27.)
16
JA 261
Moreover, the regulations Wheaton challenges are being amended precisely in order to
accommodate Wheatons concerns. See AT&T Corp. v. FCC, 369 F.3d 554, 563 (D.C. Cir.
2004) (per curiam) (dismissing challenge as unripe because of ongoing rulemaking proceedings
. . . address[ing] the issues raised by [petitioner]). Wheaton only tilts at windmills when it
protests that it will not be satisfied with whatever amendments defendants ultimately make.
Indeed, Wheatons argument that various hypothetical accommodations are insufficient (see Pl.
Oppn at 1617, 19, 2326) only serves to underscore why this Court ought not address the
merits of Wheatons claims until the preventive services regulations have taken on fixed and
final shape so that [the Court] can see what legal issues it is deciding. Pub. Serv. Commn v.
Wycoff Co., 344 U.S. 237, 244 (1952).
Nor has Wheaton demonstrated a hardship from any delay that would override its claims
lack of fitness for judicial review. See Am. Petroleum Inst., 683 F.3d at 389 (Considerations of
hardship that might result from delaying review will rarely overcome the finality and fitness
problems inherent in attempts to review tentative positions. (quoting Pub. Citizen Health
Research Grp., 740 F.2d at 31)). Costs stemming from [Wheatons] desire to prepare for
contingencies are not sufficient . . . to constitute a hardship for purposes of the ripeness
inquiryparticularly when [defendants] promises and actions suggest the situation [Wheaton]
fears may not occur. Belmont Abbey College, 2012 WL 2914417, at *14 (collecting cases).
And [t]he planning insecurity [Wheaton] advances with regard to what the preventive services
regulations may (or may not) require of it does not suffice to show hardship. Tenn. Gas Pipeline
Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984).
CONCLUSION
In sum, the application of the preventive services regulations to Wheaton remains
17
JA 262
hypothetical. Id. Wheatons arguments do not

set its case apart from the mine run of situations in which an enterprise confronts
. . . projected application of regulatory or fiscal legislation. Were [courts] to
entertain anticipatory challenges pressed by parties facing no imminent threat of
adverse agency action, no hard choice between compliance certain to be
disadvantageous and a high probability of strong sanctions, . . . [they] would
venture away from the domain of judicial review into a realm more accurately
described as judicial preview. No roving preview function has been assigned to
courts in the federal system.
Id. (citations omitted).
Defendants motion to dismiss on jurisdictional grounds will be granted. A separate
Order accompanies this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
18
JA 263

WHEATON COLLEGE,
Plaintiff,
v.
Civil Action No. 12-1169 (ESH)

Defendants.
ORDER
Upon consideration of defendants motion to dismiss (August 10, 2012 [Dkt. No. 17]),
plaintiffs opposition (August 16, 2012 [Dkt. No. 18]), defendants reply (August 20, 2012 [Dkt.
No. 19]), and oral argument held on August 23, 2012, and for the reasons stated in the
accompanying Memorandum Opinion (August 24, 2012 [Dkt. No. 20]), it is hereby
ORDERED that defendants motion to dismiss is GRANTED; and it is further
ORDERED that this action is hereby DISMISSED without prejudice; and it is further
ORDERED that plaintiffs Motion for Preliminary Injunction (August 1, 2012 [Dkt. No.
4]) is hereby DENIED as moot.
SO ORDERED.
/s/
ELLEN SEGAL HUVELLE
JA 264

WHEATON COLLEGE,
)
)
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.
)
)
Case No. 1:12-cv-01169-ESH
NOTICE OF APPEAL
Notice is hereby given this 29th day of August, 2012, that Plaintiff Wheaton College hereby
appeals to the United States Court of Appeals for the District of Columbia Circuit from the
judgment of this Court entered on August 24, 2012 (Dkt. 21), in favor of the above-captioned
Defendants against Plaintiff Wheaton College. The Courts order granted Defendants motion to
dismiss, dismissed this action without prejudice, and denied as moot Plaintiffs motion for
preliminary injunction.
August 29, 2012
Respectfully submitted,
s/Mark L. Rienzi________________
(admitted pro hac vice)
Mark L. Rienzi (DC Bar No. 494336)
JA 265

(202) 955-0095
(202) 955-0090 (fax)
mrienzi@becketfund.org
JA 266
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Courts ECF
system on August 29, 2012, and was thereby electronically served on counsel for Defendants.
s/ Mark L. Rienzi______________
Mark L. Rienzi
JA 267
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 2 of 8
No. 12-5273
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
WHEATON COLLEGE,
Appellant,
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,
Appellees.
DECLARATION OF DALE A. KEMP IN SUPPORT OF MOTION FOR

EXPEDITED CONSIDERATION
S. Kyle Duncan
Mark L. Rienzi
Eric S. Baxter
Eric N. Kniffin
THE BECKET FUND FOR RELIGIOUS LIBERTY
3000 K Street, N.W., Suite 220
(202) 349-7209
kduncan@becketfund.org
Attorneys for Appellant
Dated: August 31, 2012
JA 268
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 3 of 8
DECLARATION OF DALE A. KEMP
1. My name is Dale A. Kemp. I am over the age of 18 and have personal

knowledge of the contents of this declaration. I am the Vice President for Finance
and Treasurer of Wheaton College. I have held this position since August, 2009.
2. I make this declaration in support of Wheaton College's Motion for
Expedited Consideration of its appeal. In particular, I make this declaration in
order to set forth for the Court the burdens and pressures on Wheaton College if it
is forced to wait until the middle of 2013 or longer for resolution of the
constitutional and civil rights claims set forth in its case.
3. Wheaton College has a religious objection to providing insurance coverage
for, or otherwise facilitating access to, a class of drugs known as "emergency
contraceptives" because these drugs may act to prevent implantation of an already
fertilized human egg in a woman's uterus. Wheaton College believes that human
life begins at fertilization, and that it cannot facilitate, pay for, or
III
any way
participate in the acquisition or distribution of such drugs.

4. Wheaton filed this lawsuit in order to obtain judicial protection from
government efforts to pressure Wheaton to violate its religion and provide
Insurance coverage for such drugs.
Wheaton seeks the right to offer health
insurance that does not violate its religion, and to do so without violating federal
JA 269
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 4 of 8
JA 270
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 5 of 8
JA 271
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 6 of 8
JA 272
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 7 of 8
JA 273
USCA Case #12-5273
Document #1392456
Filed: 08/31/2012
Page 8 of 8
JA 274

Joint Appendix, Wheaton College v. Sebelius

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Joint Appendix, Wheaton College v. Sebelius

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Nos.

12-5273 & 12-5291

In the United States Court of Appeals

Proceedings before Amended Motion to Dismiss

Docket Sheets. .........................................................................1

Amended Complaint ............................................................ 34

Proceedings on Amended Motion to Dismiss

Order Granting Defendants Motion To Dismiss ............... 63

Memorandum Opinion Regarding Order Granting

Proceedings on Motion for Reconsideration

Declaration of Eric N. Kniffin and Attached Exhibits ....... 88

Declaration of Mark Rienzi ............................................... 106

Memorandum Opinion and Order denying Motion for

Notice of Appeal ................................................................. 114

Proceedings on Motion for Expedited Review

Wheaton College v. Sebelius, 12-5273

Proceedings before Motion for Preliminary Injunction and Motion to

Docket Sheets ..................................................................... 124

Complaint ........................................................................... 130

Proceedings on Motion for Preliminary Injunction or Motion to

Declaration of Philip Ryken .............................................. 162

Declaration of Stanton Jones ............................................ 176

Declaration of Heidi Daniels ............................................. 179

Declaration of Linda Cotten .............................................. 182

Declaration of Tony Dawson ............................................. 184

Declaration of Michael Hash ............................................. 187

Declaration of Mark Rienzi ............................................... 191

[Revised] Guidance on the Temporary Enforcement

Transcript of Oral Argument on Defendants Motion

Memorandum Opinion Regarding Defendants Motion

Order Granting Defendants Motion To Dismiss,

Notice of Appeal ................................................................. 265

Proceedings on Motion for Expedited Review

District of Columbia live database

U.S. District Court

BELMONT ABBEY COLLEGE v. SEBELIUS et al

Date Filed: 11/10/2011

represented by Mark L. Rienzi

District of Columbia live database

1330 Connecticut Avenue, NW

represented by Michelle Renee Bennett

represented by Michelle Renee Bennett

represented by Michelle Renee Bennett

represented by Michelle Renee Bennett

represented by Michelle Renee Bennett

District of Columbia live database

UNITED STATES DEPARTMENT OF

represented by Michelle Renee Bennett

1 COMPLAINT against TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA

SUMMONS (8) Issued as to TIMOTHY GEITHNER, KATHLEEN SEBELIUS,

3 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United

4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the

5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed.

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED

7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA

8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED

9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed.

10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED

District of Columbia live database

11 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants

12 Unopposed MOTION for Extension of Time to Respond to the Complaint by

MINUTE ORDER granting Defendants' unopposed 12 Motion for Extension of Time to

Set/Reset Deadlines: Defendants shall file a responsive pleading or motion by

13 MOTION for Extension of Time to Respond to the Complaint by TIMOTHY