Commonwealth of Pennsylvania v. President United States
888 F.3d 52
3rd Cir.2018Background
- Little Sisters of the Poor is a religious nonprofit operating multiple elderly-care homes; one entity (Pittsburgh) sought to intervene to defend portions of a federal "religious exemption" interim final rule (IFR) to the ACA contraceptive mandate.
- ACA required certain preventive services (including FDA-approved contraceptives) without cost sharing; HHS issued an accommodation allowing religious nonprofits to self-certify and shift provision to insurers/TPAs.
- Litigants (including Little Sisters) challenged the accommodation under RFRA and APA; the Supreme Court in Zubik vacated and remanded, directing parties to try to reach an approach accommodating religious exercise while preserving contraceptive coverage.
- After Zubik, the Departments issued IFRs (Oct. 2017) creating a religious exemption that removed the self-certification/notice obligation for some entities; Pennsylvania sued, seeking to enjoin the IFRs as unlawful.
- Little Sisters moved to intervene as of right under Fed. R. Civ. P. 24(a) (or permissively under 24(b)); the district court denied intervention, finding no significantly protectable interest and adequate representation by the federal government.
- The Third Circuit reversed, holding the Little Sisters satisfied Rule 24(a) (sufficient interest, impairment, and inadequate representation) and remanded to permit intervention limited to defending the IFR provisions applicable to religious nonprofits.
Issues
| Issue | Plaintiff's Argument (Pennsylvania) | Defendant's Argument (Little Sisters / Federal Government) | Held |
|---|---|---|---|
| Whether Little Sisters have a "significantly protectable" interest to intervene | No; Little Sisters lack a specific, legally cognizable interest beyond general objections | Yes; they have a concrete, particular interest in preserving the Zubik-based accommodation and the religious-exemption IFR that directly affects them | Little Sisters do have a significantly protectable interest and satisfied Rule 24(a) |
| Whether disposition of suit may impair Little Sisters' interest | No; Zubik already protects them and district injunction preserves status quo, so Pennsylvania's suit poses no tangible threat | Yes; litigation could reopen RFRA questions and affect permanence of Zubik protections and future rulemaking, posing a tangible threat | The litigation poses a tangible threat to their interests (impairment requirement met) |
| Whether federal government adequately represents Little Sisters' interests | Yes; government defends IFRs and thus is in "lockstep" with Little Sisters, creating a presumption of adequacy | No; government must balance multiple public interests (access to contraceptives, different objectors), so representation may be inadequate for the Little Sisters' narrow interests | Presumption of adequacy rebutted; Little Sisters carried their (comparatively light) burden to show possible inadequate representation |
| Whether permissive intervention should be allowed if not as of right | District court: denial appropriate due to potential delay/prejudice | Little Sisters: as-of-right relief renders permissive intervention unnecessary; but they sought it alternatively | Court did not reach permissive-intervention merits because it granted intervention as of right |
Key Cases Cited
- Donaldson v. United States, 400 U.S. 517 (1971) (requirement that intervenor assert a "significantly protectable" interest)
- Trbovich v. United Mine Workers of America, 404 U.S. 528 (1972) (government may have dual public and private interests; representation adequacy can vary)
- Kleissler v. U.S. Forest Serv., 157 F.3d 964 (3d Cir. 1998) (intervention where government represents multiple, nonidentical interests; comparatively light burden to rebut presumption)
- Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108 (3d Cir. 1992) (intervention standards and practical-impairment inquiry)
- Mountain Top Condo. Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361 (3d Cir. 1995) (representation inadequate if it "may be" inadequate; minimal showing required)
- Benjamin ex rel. Yock v. Dep't of Pub. Welfare, 701 F.3d 938 (3d Cir. 2012) (applicant need not show intervention is only avenue of relief; consider potential practical disadvantage)
- United States v. Territory of the Virgin Islands, 748 F.3d 514 (3d Cir. 2014) (strong presumption of adequacy where government is charged with representing applicant's interests)
- Zubik v. Burwell, 136 S. Ct. 1557 (2016) (Supreme Court vacated judgments and remanded, instructing parties to seek an approach accommodating religious exercise while preserving contraceptive coverage)