March 23, 2018
Appeal from the United States District Court for the Eastern
District of Pennsylvania (D.C. No. 2-17-cv-4540) District
Judge: Honorable Wendy Beetlestone
J. Boland Jonathan S. Goldman Office of Attorney General of
Pennsylvania Michael J. Fischer [Argued] Office of Attorney
General of Pennsylvania Attorneys for Appellee
H. Blomberg Eric C. Rassbach Mark L. Rienzi Lori H. Windham
[Argued] Becket Fund for Religious Liberty Nicholas M.
Centrella Conrad O'Brien Attorneys for Appellant
Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges.
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
appeal, we review an order of the United States District
Court for the Eastern District of Pennsylvania denying a
motion to intervene filed by the Little Sisters of the Poor
Saints Peter and Paul Home. The Little Sisters sought to
intervene in litigation challenging regulations promulgated
under the Patient Protection and Affordable Care Act. The
District Court denied the motion, finding that the Little
Sisters lacked a significantly protectable interest in the
case and that their interests were adequately represented by
the federal government. We will reverse.
Little Sisters of the Poor are an international Roman
Catholic congregation whose mission is to serve the elderly
poor of all backgrounds. They operate more than 25 homes for
the elderly in the United States, all of which adhere to the
same religious beliefs. Each home is separately incorporated
as a nonprofit but is "operated under the control"
of the larger congregation. App. 82.
in this case is a religious nonprofit corporation that
operates a Little Sisters home in Pittsburgh, Pennsylvania.
The Little Sisters' interest in regulations implementing
the Affordable Care Act is neither novel nor isolated.
Indeed, they have been involved in litigation regarding the
Affordable Care Act for years, and their attempt to intervene
in this case must be considered in full context. Accordingly,
we begin by describing the relevant portions of the
Affordable Care Act and its regulatory scheme, along with the
pertinent legal challenges filed by the Little Sisters and
Affordable Care Act includes a provision that requires health
plans to cover certain forms of preventive care for women
without cost sharing, as specified in guidelines issued by an
agency of the United States Department of Health & Human
Services (HHS) called the Health Resources and Services
Administration. See 42 U.S.C. § 300gg-13(a)(4).
Preventive care under these guidelines includes: all
contraceptive methods approved by the Food & Drug
Administration, sterilization procedures, and related
counseling and education. Unless an exemption applies,
failure to comply with the mandate renders a noncompliant
employer subject to a penalty of $100 "for each day in
the noncompliance period with respect to each individual to
whom such failure relates." 26 U.S.C. §
4980D(b)(1). In common parlance, this coverage has come to be
known as the "contraceptive mandate."
2011, HHS, along with the United States Departments of Labor
and Treasury (collectively, the Departments) promulgated
interim final regulations exempting certain religious
employers from the contraceptive mandate. 76 Fed. Reg. 46,
621 (Aug. 3, 2011). To be eligible, a religious employer had
to (1) have the inculcation of religious values as its
purpose; (2) primarily employ people who share its religious
tenets; (3) primarily provide services to persons who share
its religious tenets; and (4) be a church, its integrated
auxiliary, a convention or association of a church, or
"the exclusively religious activities of any religious
order." Id. at 46, 623; see also 26
U.S.C. § 6033(a)(3)(A)(i), (iii).
two years after the interim final regulations were
promulgated, the Departments issued a final rule in response
to public input and various legal challenges. 78 Fed. Reg.
39, 870 (July 2, 2013). That final rule altered the
definition of an eligible religious employer by dropping the
first three requirements, id. at 39, 874, and it
also provided an accommodation process for religious
nonprofit organizations that did not meet this new
definition. Such a religious nonprofit employer could avail
itself of the accommodation if it (1) had religious
objections to providing coverage for some or all of the
required contraceptive services; (2) was "organized and
operate[d] as a nonprofit entity;" (3) "[held]
itself out as a religious organization;" and (4)
"self-certifie[d] that it satisfie[d] the first three
criteria." Id. Once an employer made this
self-certification to its insurer or third-party
administrator, that entity would provide the mandated
contraceptive services directly to women covered under the
employer's plan. Id. at 39, 875. Later, the
Departments issued another rule that allowed entities
eligible for the accommodation to directly notify HHS of a
religious objection. 80 Fed. Reg. 41, 318, 41, 323 (July 14,
2015). Through these two regulations, the
self-certification accommodation sought to ensure that
qualifying employers did not need to "contract, arrange,
pay, or refer for contraceptive coverage, " but their
"plan participants and beneficiaries . . . [would] still
benefit from separate payments for contraceptive services
without cost sharing or other charge, " as required by
law. 78 Fed. Reg. at 39, 874.
months after the final rule was issued in 2013, the Little
Sisters of the Poor Home for the Aged, Denver, Colorado and
the Little Sisters of the Poor, Baltimore, Inc. filed suit in
the United States District Court for the District of
Colorado. They claimed the contraceptive mandate was
unconstitutional and that it violated the Religious Freedom
Restoration Act (RFRA) and the Administrative Procedure Act
(APA). See Little Sisters of the Poor Home for the Aged
v. Sebelius, 6 F.Supp.3d 1225, 1232-33 (D. Colo. 2013).
With respect to RFRA, the Little Sisters asserted that the
self-certification accommodation would force them to
"take actions that directly cause others to provide
contraception or appear to participate in the
Departments' delivery scheme, " both of which would
violate their religious conviction "that deliberately
avoiding reproduction through medical means is immoral."
Little Sisters of the Poor Home for the Aged v.
Burwell, 794 F.3d 1151, 1167-68 (10th ...