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PERSICO v. SEBELIUS
MOST REVEREND LAWRENCE T. PERSICO, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, as Trustee for the Roman Catholic Diocese of Erie, A Charitable Trust, et al. Plaintiff,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services, et al., Defendants.
Case No. 1:12-cv-123-SJM.
United States District Court, W.D. Pennsylvania.
January 22, 2013.
MEMORANDUM OPINIONSEAN J. McLAUGHLIN, District Judge. Following the enactment of the Affordable Care Act (or "ACA") in March of 2010, group health plans and health insurance issuers not otherwise grandfathered under the Act are required to provide coverage for certain preventive health services — including FDA approved "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" — without cost sharing. Plaintiffs in this lawsuit — the Roman Catholic Diocese of Erie (the "Diocese"), the Most Reverend Lawrence T. Persico (as Bishop and Trustee of the Diocese), the St. Martin Center, Inc., and the Prince of Peace Center, Inc. — have sought to invalidate and enjoin this regulation (hereinafter referred to as the "Mandate") on the grounds that it violates the Plaintiffs' rights under the First Amendment, the Religious Freedom and Restoration Act, and the Administrative Procedures Act. Named as Defendants are the Secretaries of the U.S. Departments of Health and Human Services, Labor, and Treasury as well as the Departments themselves. This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2). Presently pending before the Court is the Defendants' motion to dismiss this action for lack of standing and/or ripeness. Plaintiffs have filed a memorandum in opposition to this motion, which is supported by various exhibits.1 The matter has been fully briefed and argued and is ripe for disposition. I. STANDARD OF REVIEWDefendants' motion to dismiss for lack of jurisdiction, filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, concerns the Court's "very power to hear the case." Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.2006) (citation omitted). Our Court of Appeals has explained that "there are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact. When considering a facial attack, `the Court must consider the allegations of the complaint as true,' and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion." Id., at 302 n. 3 (citation omitted). A factual attack, on the other hand, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction ... there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.
1. In addition, certain interested parties have filed briefs as amicus curiae in this matter.
2. The following facts are taken from either the Plaintiff's complaint or their exhibits in support of their memorandum opposing the pending motion. In either event, the following averments stand unrebutted on this record.
3. The Complaint originally named as Plaintiff the Most Reverend Donald W. Trautman, proceeding in his capacity as Bishop and Trustee of the Diocese. On October 9, 2012, the caption was amended to reflect the substitution of Lawrence T. Persico in place of Donald W. Trautman, following Bishop Trautman's retirement. (See Order of 10/9/12 [ECF No. 39].)
4. As a self-insurer, the Diocese does not contract with a separate insurance company for the provision of health care coverage; instead, the Diocese itself functions as the insurance company by underwriting the medical costs of its employees and the employees of its affiliated corporations. (Complaint ¶ 52.)
5. Defendants initially disputed the Plaintiffs' averment that its health care plan does not qualify for "grandfathering," on the grounds that the only information asserted in the complaint concerning the plan's non-grandfathered status was the Plaintiffs' averment that the Diocese had not included a statement of grandfathered status in its plan materials. Defendants argued that Plaintiffs should not benefit from a self-inflicted injury simply by having failed to provide notice in its plan materials of the plan's otherwise "grandfathered" status. Without more information justifying the conclusion that the Diocese's health care plan cannot benefit from "grandfathered" status, Defendants argued, the claims premised upon the plan(s) should be dismissed due to the Diocese's lack of standing.
However, in their brief opposing the pending motion to dismiss and supporting materials, the Plaintiffs explain that the Diocese's health care plan cannot be considered "grandfathered" because the Diocese changed insurers between March 23 and November 15, 2010. Specifically, the Diocese represents that its health care plan went from being self-insured to fully insured on July 1, 2010 before switching back to self-insured status on July 1, 2011. (See Affidavit of David J. Murphy, Ex. 2 [ECF No. 24-3] to Pls.' Mem. In Opp. to Mot. to Dismiss at p. 3, ¶ 7.) According to the pertinent administrative rules, a group health plan (including one that was self-insured as of March 23, 2010) ceases to be grandfathered if the plan or its sponsor entered into a new policy, certificate, or contract of insurance after March 23, 2010 with an effective date prior to November 15, 2010. 45 C.F.R. § 147.140(a)(1)(ii) (2013).
Following this representation, Defendants have not pursued their challenge concerning the non-grandfathered status of the Diocese's health care plan. Accordingly, we will assume for present purposes that the Diocese's health care plan is, indeed, ineligible for grandfathered status.
6. We note that Plaintiffs' APA claims do not allege the violation of any fundamental right and, therefore, do not benefit from the relaxed ripeness standard in any event.
7. For this reason, assuming a relaxed ripeness standard were to be applied here, Plaintiffs cannot establish "even the remotest threat of prosecution" in light of the Defendants' promise not to prosecute them. See Zubik v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 5932977 at *7 n.13 (W.D. Pa. Nov.. 27, 2012) (finding that, even under relaxed ripeness standard, Plaintiffs' claims would not be justiciable, in part because "it is not disputed that Defendants have provided a promise not to enforce" the Mandate); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Services, ___ F. Supp. 2d ___, 2012 WL 2913402 at *23 (D. Neb. July 17, 2012) ("[P]laintiffs in this case do not face a direct and immediate dilemma that involves the sacrifice of their First Amendment rights, and the defendants' position on the scope of the exemptions to the contraceptive coverage requirements is tentative — and under these circumstances, the plaintiffs cannot establish ripeness even under a relaxed standard.") (footnote omitted). See also Tait v. City of Philadelphia, 410 Fed. Appx. 506, 509 (3d Cir. 2011) (First Amendment challenge to city ordinance, which regulated the work of tour guides and required them to obtain certificates before leading tours in certain historic areas of Philadelphia, was not ripe under relaxed standard where there was no evidence that the speech of any tour guide had been chilled and where the City had expressly "disavowed" enforcement of the Ordinance until some indeterminate point in the future when an announcement would be made that a written test would be administered).
8. Another federal district court has dismissed a similar lawsuit by a non-profit religious organization for lack of standing. See Legatus v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012).
9. These facts distinguish the present case from Korte v. Sebelius, No. 12-3841 (7th Cir. Dec. 28, 2012) and Monaghan v. Sebelius, No. 12-15488 (E.D. Mich. Dec. 30, 2012), both of which were recently cited by Plaintiffs in support of their request for injunctive relief. Because both Korte and Monaghan involved plaintiffs that were for-profit entities challenging the ACA's contraceptive mandate, the plaintiffs in those cases were not beneficiaries of the safe harbor period and additional rulemaking. See 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012). Accordingly, since the issue of ripeness was never joined in those cases, their reasoning does not inform our present analysis.
10. The Court of Appeals went on to hold the appeals before it in abeyance (rather than dismiss them), pending regular updates from the Government on the status of its ongoing rulemaking efforts. Like the district court in Colorado Christian University, 2013 WL 93188 at *8, we will adhere to the customary practice of dismissing this unripe case in its entirety, rather than holding it in abeyance.
11. To reiterate, the regulations allow for a "religious employer" to be exempted from the Mandate, and they define that term as "an organization that meets 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."
See 45 C.F.R. § 147.130 (a)(1)(iv)(B) (effective Aug. 3, 2011).
12. On this point, we find ourselves in agreement with the conclusion reached by the court in Zubik v. Sebelius, supra. Noting that "[c]ourts have been pragmatic when interpreting the finality element of ripeness under the APA," 2012 WL 5932977 at *13 (citations omitted), the Zubik court considered the following "finality factors": (1) whether the decision represents the agency's definitive position on the question; (2) whether the decision has the status of law with the expectation of immediate compliance; (3) whether the decision has immediate impact on the day-to-day operations of the party seeking review; (4) whether the decision involves a pure question of law that does not require further factual development; and (5) whether immediate judicial review would speed enforcement of the relevant act. See id. (citing Solar Turbines Inc. v. Seif, 879 F.2d 1073, 1080 (3d Cir. 1989)). The court then found that:
each of these factors weighs against a determination that Plaintiffs' claims are ripe. First, while the regulations are "final," by virtue of having been formally promulgated, the regulations do not represent the Defendants' "definitive position on the question" as Defendants have initiated a formal amendment process of these regulations. Second, as discussed at length supra, at the current time there is no expectation of immediate compliance by either Plaintiffs or Defendants. Third, any decision the Court would make today would not have an immediate impact on Plaintiffs' day-to-day operations as the existing regulations are currently under review and are expected to be modified. Next, any decision clearly requires further factual development as the current controversy at this time is based on contingent facts. Finally, immediate judicial review would not speed enforcement as Plaintiffs are not subject to any potential enforcement action before January 2014, if at all.
2012 WL 5932977 at *13.
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