Commonwealth of Pennsylvania v. President United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 17-3679
___________

COMMONWEALTH OF PENNSYLVANIA

v.

PRESIDENT UNITED STATES OF AMERICA; ACTING
SECRETARY OF UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECRETARY OF THE TREASURY; UNITED STATES
DEPARTMENT OF THE TREASURY; SECRETARY
UNITED STATES DEPARTMENT OF LABOR; UNITED
STATES DEPARTMENT OF LABOR
*
LITTLE SISTERS OF THE POOR SAINTS PETER AND
PAUL HOME,

Appellant

*
Pursuant to Fed. R. App. P. 12(a)
 __________

On 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
___________

Argued March 23, 2018
Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges.

(Filed: April 24, 2018)

Nicole J. Boland
Jonathan S. Goldman
Office of Attorney General of Pennsylvania
Civil Division, Litigation Section
Strawberry Square
Harrisburg, PA 17120

Michael J. Fischer [Argued]
Office of Attorney General of Pennsylvania
1600 Arch Street, Suite 300
Philadelphia, PA 19103
Attorneys for Appellee

2
Daniel H. Blomberg
Eric C. Rassbach
Mark L. Rienzi
Lori H. Windham [Argued]
Becket Fund for Religious Liberty
1200 New Hampshire Avenue, N.W., Suite 700
Washington, DC 20036

Nicholas M. Centrella
Conrad O’Brien
1500 Market Street
West Towers, Suite 3900
Philadelphia, PA 19102
Attorneys for Appellant

____________

OPINION OF THE COURT
____________

HARDIMAN, Circuit Judge.

In this 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.

3
 I

The 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.

Appellant 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
others.

A

The 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

4
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.”

In 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).

Almost 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

5
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).1 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.

B

Two 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

1
In response to Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014), the Departments also issued rules
extending the accommodation to closely held for-profit entities
with religious objections to providing contraceptive coverage.
80 Fed. Reg. 41,318, 41,324 (July 14, 2015).

6
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 Cir. 2015). They sought a preliminary
injunction, which the district court denied. The Tenth Circuit
affirmed, holding that the regulations did not violate RFRA
because they did not substantially burden religious exercise. Id.
at 1205.

The Little Sisters sought certiorari, and the Supreme
Court granted review in order to decide whether the self-
certification accommodation violated RFRA. In addition to the
Tenth Circuit’s decision, the Court also granted certiorari to
review decisions of the Third, Fifth, and D.C. Circuits, which
were consolidated as Zubik v. Burwell, 136 S. Ct. 1557 (2016)
(per curiam).

In Zubik, the Court did not answer the question
“whether petitioners’ religious exercise ha[d] been
substantially burdened.” Id. at 1560. Instead, it explained that
both the petitioners and the government had “confirm[ed]” that
“contraceptive coverage could be provided to petitioners’
employees, through petitioners’ insurance companies, without
any . . . notice from petitioners.” Id. at 1559–60. It then
vacated the underlying judgments and remanded the cases,
directing the parties to attempt “to arrive at an approach going
forward that accommodates petitioners’ religious exercise
while at the same time ensuring that women covered by
petitioners’ health plans receive full and equal health coverage,
including contraceptive coverage.” Id. at 1560 (internal
quotation marks and citation omitted). The Court found its
instruction appropriate in light of “the substantial clarification
and refinement in the positions of the parties” over the course

7
of the litigation. Id. Finally, it “anticipate[d] that the Courts of
Appeals [would] allow the parties sufficient time to resolve any
outstanding issues between them,” id., and it noted that the
litigation sufficed to give the government notice of the
petitioners’ objections, such that “the Government may not
impose taxes or penalties on petitioners for failure to provide
the relevant notice,” id. at 1561.

C

Two months after Zubik was decided, the Departments
issued a request for information on “alternative ways . . . to
obtain an accommodation, while still ensuring that women
enrolled in the organizations’ health plans have access to
seamless coverage of the full range of . . . approved
contraceptives without cost sharing.” 81 Fed. Reg. 47,741,
47,741 (July 22, 2016). Six months later, the Departments
concluded that no such “feasible approach” existed “at this
time.” DEP’T OF LABOR, FAQs About Affordable Care Act
Implementation Part 36 at 4 (Jan. 9, 2017), available at
https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-
activities/resource-center/faqs/aca-part-36.pdf.

In May 2017, President Trump issued an executive
order that directed the Departments to “consider issuing
amended regulations, consistent with applicable law, to
address conscience-based objections to the preventive-care
mandate.” Exec. Order No. 13,798, 82 Fed. Reg. 21,675,
21,675 (May 4, 2017). In response, the Departments issued two
interim final rules (IFRs), one providing for a “religious
exemption” and the other providing for a “moral exemption.”
Most relevant to this appeal, the “religious exemption” IFR
applies to “entities, and individuals, with sincerely held
religious beliefs objecting to contraceptive or sterilization

8
coverage,” including “for-profit entities that are not closely-
held.” 82 Fed. Reg. 47,792, 47,808, 47,810 (Oct. 13, 2017). It
also eliminates the need for exempt entities to comply with the
self-certification accommodation and imposes no new notice
requirements upon them. Id. at 47,808. The “moral exemption”
IFR allows closely held nonprofit and for-profit entities to
claim an exemption based on sincerely held moral beliefs. 82
Fed. Reg. 47,838, 47,849–52 (Oct. 13, 2017).

Five days after the IFRs were promulgated, the
Commonwealth of Pennsylvania filed a civil action in the
United States District Court for the Eastern District of
Pennsylvania, alleging that the IFRs violate the Equal
Protection and Establishment Clauses of the Constitution, Title
VII of the Civil Rights Act, the Pregnancy Discrimination Act,
and procedural and substantive provisions of the APA.
Pennsylvania sought a declaratory judgment that both IFRs
were unlawful, as well as preliminary and permanent
injunctive relief. It claimed that the religious exemption IFR
allows employers to opt out of providing no-cost contraceptive
coverage, resulting in employees losing the preventive care
mandated by the Affordable Care Act.

The Little Sisters moved to intervene either as of right
under Rule 24(a) of the Federal Rules of Civil Procedure or
alternatively for permissive intervention under Rule 24(b). The
District Court denied the motion. It found intervention under
Rule 24(a) inappropriate after concluding that the Little Sisters
did not have a significantly protectable interest in the litigation
and that their interests were adequately represented by the
federal government. And it determined that intervention under
Rule 24(b) would delay the litigation and “prejudice the
interest of the parties in securing an efficient resolution” of the
case. Pennsylvania v. Trump, 2017 WL 6206133, at *5 (E.D.

9
Pa. Dec. 8, 2017). The Little Sisters appealed, and a week later
the District Court issued an opinion and order granting
Pennsylvania’s request for preliminary injunctive relief. The
federal government appealed the order granting the
preliminary injunction, and this Court stayed that case pending
the outcome of our decision in this appeal.

II2

The District Court had jurisdiction under 28 U.S.C.
§ 1331. “[W]e have jurisdiction under 28 U.S.C. § 1291
because the denial of a motion to intervene as of right is a final,
appealable order.” Dev. Fin. Corp. v. Alpha Hous. & Health
Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995). We will overturn
a district court’s order denying a motion to intervene as of right
only “if the court has abused its discretion by applying an
improper legal standard or [by] reaching a conclusion we are
confident is incorrect.” Kleissler v. U.S. Forest Serv., 157 F.3d
964, 969 (3d Cir. 1998). We also review orders denying
motions to intervene under Rule 24(b) for abuse of discretion,
but “[w]e are more reluctant to intrude” into these “highly
discretionary” decisions. Brody ex rel. Sugzdinis v. Spang, 957
F.2d 1108, 1115 (3d Cir. 1992).

2
Because the Little Sisters moved to intervene as
defendants and seek the same relief as the federal government,
they need not demonstrate Article III standing. See Town of
Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017);
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 233 (2003)
(assuming standing where original defendant had standing and
intervenor-defendant sought same relief as that sought by
defendant), overruled on other grounds, Citizens United v.
Fed. Election Comm’n, 558 U.S. 310 (2010).

10
 III

A party that has filed a timely motion has a right to
intervene under Rule 24(a) if it can show three things: (1) a
sufficient interest in the litigation; (2) “a threat that the interest
will be impaired or affected, as a practical matter, by the
disposition of the action”; and (3) that its interest is not
adequately represented by the existing parties to the litigation.
Kleissler, 157 F.3d at 969. Since there is no dispute that the
Little Sisters’ motion was timely, we consider these three
elements in turn.

A

Did the Little Sisters demonstrate a sufficient interest in
the litigation? To meet this prong, the Supreme Court has held
that an applicant must assert an interest that is “significantly
protectable.” Donaldson v. United States, 400 U.S. 517, 531
(1971). We have interpreted this to mean “a cognizable legal
interest, and not simply an interest of a general and indefinite
character.” Brody, 957 F.2d at 1116 (internal quotation marks
and citation omitted). An applicant must therefore demonstrate
that its interest is “specific to [it], is capable of definition, and
will be directly affected in a substantially concrete fashion by
the relief sought.” Kleissler, 157 F.3d at 972. Given these
standards, it is not surprising that “[t]he facts assume
overwhelming importance in each decision.” Id.

The Little Sisters seek to intervene to defend only the
portions of the religious exemption IFR that apply to them. See
Benjamin ex rel. Yock v. Dep’t of Pub. Welfare, 701 F.3d 938,
951 (3d Cir. 2012) (noting that a “proposed intervenor[] need
not possess an interest in each and every aspect of the
litigation” and “[is] entitled to intervene as to specific issues so

11
long as their interest in those issues is significantly protectable”
(citation omitted)). In their motion, the Little Sisters argued
that the civil action brought by the Commonwealth would harm
them by narrowing or eliminating the protection conferred by
the Supreme Court in Zubik and by invalidating the regulatory
protection afforded to them under the IFR. If those things come
to pass, the Little Sisters claim, they will be “forced to choose
between violating their faith and paying crippling fines.” ECF
19-1 at 12 (Mem. of Law in Support of Mot. to Intervene).

Contrary to the District Court’s decision, we agree with
the Little Sisters that their interest in preserving the religious
exemption is concrete and capable of definition. We also agree
that the relationships among the various homes run by the
Little Sisters of the Poor Congregation, including the two
entities that were parties in Zubik, confirm that the Little Sisters
have a unique interest compared to other religious objectors
who might wish to intervene. We therefore conclude that those
interests are significantly protectable.

First, the Little Sisters have a significantly protectable
interest in the continued protection afforded by Zubik. This
litigation has the potential to reopen issues that turn on the
meaning of RFRA as it bears on self-certification, potentially
influencing any substantive outcome. The Commonwealth’s
APA challenge calls into question whether the new religious
exemption is required by RFRA and therefore justifies
bypassing notice-and-comment rulemaking to issue the IFRs
quickly. If this Court were to reach the RFRA issue, we would
be answering the very question the Supreme Court chose not
to address in Zubik, i.e., whether the self-certification process
imposes a substantial burden on the Little Sisters’ sincerely
held religious beliefs. Answering that question in the negative
surely would impair the protection conferred by Zubik.

12
 Second, the Little Sisters have a significantly
protectable interest in the religious exemption IFR, since it
constitutes the very “approach” contemplated by Zubik. 82
Fed. Reg. at 47,814 (“These [IFRs] provide a specific policy
resolution that courts have been waiting to receive from the
Departments for more than a year.”). The Little Sisters have
litigated for the protection conferred by the religious
exemption IFR for five years, and the IFR describes the Little
Sisters as one impetus for change. Id. at 47,798. It stands to
reason, then, that the Little Sisters have a significantly
protectable interest in whether the approach contemplated by
Zubik, as manifested in the religious exemption IFR, ultimately
prevails.

We faced an analogous scenario in Kleissler, where one
of the timber companies had won a bid for a contract, and the
bid was threatened by an environmental suit against the
municipality. 157 F.3d at 973. We granted intervention as of
right, reasoning that the accepted bid, while not a contract,
amounted to a protectable legal interest. Id. The same logic
applies here.

For all of these reasons, the Little Sisters have
demonstrated that this litigation implicates their legally
cognizable interests relating to both the religious exemption
IFR and Zubik. We are confident the District Court erred in
holding otherwise.

B

Having concluded that the Little Sisters have a
sufficient interest in the litigation, we now consider whether
that interest “is in jeopardy in the lawsuit.” Brody, 957 F.2d at
1122. To meet this requirement, an applicant “must

13
demonstrate that [its] legal interests may be affected or
impaired[] as a practical matter by the disposition of the
action.” Id. (citation omitted). However, “[i]t is not sufficient
that the claim be incidentally affected; rather, there must be a
tangible threat to the applicant's legal interest.” Id. at 1123
(internal quotation marks and citation omitted). Because our
focus is on the “practical consequences” of the litigation, we
“may consider any significant legal effect on the applicant’s
interest,” including a decision’s stare decisis effect or a
proposed remedy’s impact on the applicant for intervention. Id.
at 1122–23 (citation omitted). We have also stated a “policy
preference which, as a matter of judicial economy, favors
intervention over subsequent collateral attacks.” Kleissler, 157
F.3d at 970 (citation omitted).

Thus, we must determine whether the Commonwealth
of Pennsylvania’s civil action poses a tangible threat to the
Little Sisters’ interests. In arguing that no threat exists, the
Commonwealth claims that the injunctive and declaratory
relief it seeks will simply preserve the status quo, under which
Zubik “fully protect[s]” the Little Sisters from the imposition
of fines. Commonwealth Br. 19. To support this argument,
Pennsylvania emphasizes that the Little Sisters have not lost
their protection under Zubik in the months since the District
Court granted preliminary injunctive relief, so “no outcome in
this case presents a ‘tangible threat’ to the Little Sisters’
‘legally cognizable’ interests.” Id.

We disagree with this view, which the District Court
adopted, and we conclude that the Commonwealth’s
contentions are based on an incomplete reading of Zubik. Far
from providing permanent protection, Zubik afforded the
parties merely “an opportunity” to arrive at a suitable
compromise. 136 S. Ct. at 1560. Furthermore, the Supreme

14
Court instructed the courts of appeals to provide the parties
with “sufficient time” to settle their differences. Id. But what if
the parties are unable to settle their differences within what the
courts of appeals deem “sufficient time”? In that event, the
appellate courts will have no choice but to revisit the merits of
the RFRA questions in light of the parties’ “significantly
clarified” views. See id.

As the religious exemption IFR indicates, one court of
appeals was close to reaching that point a year ago. In March
of 2017, the Seventh Circuit requested “a report of an
agreement to resolve the case or detailed reports on the parties’
respective positions.” 82 Fed. Reg. at 47,814 (quoting ECF
130, Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir.
2014) (No. 13-3853)).3 Absent such an agreement by May 1,
2017, the Seventh Circuit “plan[ned] to schedule oral argument
on the merits of the case on short notice.” Id. The Departments
subsequently notified the court of the impending rulemaking.
Id. Though that case was later voluntarily dismissed, the
Seventh Circuit’s order makes clear that the Supreme Court’s
decision in Zubik lacks the kind of permanency ascribed to it
by the Commonwealth here. Should the federal government
have to engage in a new rulemaking process, there is no
guarantee that the Little Sisters will remain protected under
Zubik. In this regard, the District Court found that the Little
Sisters have recourse through the litigation brought in the
Tenth Circuit by their colleagues. However, “[a]n applicant
need not . . . prove that [it] would be barred from bringing a

3
The Supreme Court had previously granted certiorari
and vacated the judgment in that case in light of Zubik. See
Univ. of Notre Dame v. Burwell, 136 S. Ct. 2007 (2016).

15
later action or that intervention constitutes the only possible
avenue of relief.” Brody, 957 F.2d at 1123.

And, as already discussed, the pending litigation poses
a tangible threat to the Little Sisters’ regulatory protection
because it has the potential to declare that exemptions from the
self-certification accommodation are not required by RFRA.
Such a determination could affect how the government
proceeds in future rulemakings, including whether it provides
alternatives to the self-certification accommodation. This, in
turn, could affect whether the Little Sisters will remain exempt
from the mandate. Accordingly, we conclude that the Little
Sisters have demonstrated that they may be “practically
disadvantaged by the disposition of the action.” Benjamin, 701
F.3d at 951 (citation omitted). They therefore meet the
impairment requirement.

C

Finally, we evaluate whether the Little Sisters have
established that their interests are not adequately represented
by the federal government. We have held that an applicant’s
interests are not adequately represented if they diverge
sufficiently from the interests of the existing party, such that
“the existing party cannot devote proper attention to the
applicant’s interests.” United States v. Territory of the Virgin
Islands, 748 F.3d 514, 520 (3d Cir. 2014). This burden is
generally “treated as minimal” and requires the applicant to
show “that representation of his interest ‘may be’ inadequate.”
Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder,
Inc., 72 F.3d 361, 368 (3d Cir. 1995) (emphasis added)
(quoting Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972)).

16
 Notwithstanding that minimal burden, a rebuttable
presumption of adequacy applies “if one party is a government
entity charged by law with representing the interests of the
applicant for intervention.” Virgin Islands, 748 F.3d at 520
(citation omitted). But even when the government is a party,
“[t]he burden of establishing inadequacy of representation . . .
varies with each case.” Kleissler, 157 F.3d at 972. For that
reason, the presumption is particularly strong when the
governmental and private interests “closely parallel” one
another, id., or are “nearly identical,” Virgin Islands, 748 F.3d
at 525. In those cases, a proposed intervenor will overcome the
presumption only with a “compelling showing.” Id. at 520
(quoting Mountain Top, 72 F.3d at 369). By contrast, “when an
agency’s views are necessarily colored by its view of the public
welfare rather than the more parochial views of a proposed
intervenor whose interest is personal to it, the burden is
comparatively light.” Kleissler, 157 F.3d at 972. The same
holds true when the government is charged with serving “two
distinct interests, which are related, but not identical.”
Trbovich, 404 U.S. at 538.

The parties dispute the degree of divergence between
the interests of the Little Sisters on the one hand and those of
the federal government on the other. The Commonwealth
contends that the Little Sisters and the government are in
“lockstep” because they both seek to defend the validity of the
IFRs. Commonwealth Br. 16. In support, the Commonwealth
relies heavily on United States v. Territory of the Virgin
Islands, 748 F.3d at 522. In that case, we held that an inmate
had no right to intervene in litigation brought by the United
States to remedy prison conditions because his interests were
“essentially identical” to those of the federal government. Id.
The Little Sisters respond by citing our decision in Kleissler v.

17
United States Forest Service, 157 F.3d at 967, where we
recognized the right of timber contractors, municipalities, and
school districts to intervene in litigation brought by an
environmental public interest group to enjoin logging activities
in a national forest. The Little Sisters argue that here, as in
Kleissler, the government must defend “numerous complex
and conflicting interests,” id. at 973, including the rights of
nonprofit and for-profit religious objectors, moral objectors,
and women seeking access to contraceptive services. Without
the right to intervene, the Little Sisters contend that their
“straightforward” interests “may become lost in [this] thicket
of sometimes inconsistent governmental policies.” Id. at 973–
74.

We recognize that the Little Sisters’ situation is not
perfectly analogous to Kleissler and other cases holding that
the government did not adequately represent a private party’s
interests. See Benjamin, 701 F.3d at 958; Kleissler, 157 F.3d at
973–74; Brody, 957 F.2d at 1124. Nevertheless, the unique
position in which Zubik has placed the federal government
renders this case sufficiently similar to those decisions for us
to conclude that the Little Sisters carry a “comparatively light”
burden here and have overcome the presumption. See
Kleissler, 157 F.3d at 972. First, the Little Sisters’ situation is
similar to Trbovich, where a statute obligated the Secretary of
Labor to uphold the “related[] but not identical” interests in
enforcing the rights of union members against their union as
well as the “public interest” in assuring free and democratic
union elections. 404 U.S. at 538–39. Zubik likewise tasked the
government with serving two related interests that are not
identical: accommodating the free exercise rights of religious
objectors while protecting the broader public interest in access
to contraceptive methods and services. And like Benjamin, the

18
Zubik compromise must balance the rights of “two groups with
quite divergent desires and interests.” 701 F.3d at 958. Finally,
as in Kleissler, the government must defend “numerous
complex and conflicting interests.” 157 F.3d at 973. The
religious exemption IFR applies not only to religious nonprofit
corporations like the Little Sisters, but also to closely held and
publicly traded for-profit corporations. And the moral
exemption IFR protects parties for reasons unrelated to
religion. The religious and moral interests of these entities are
numerous and varied. Accordingly, there is no guarantee that
the government will sufficiently attend to the Little Sisters’
specific interests as it attempts to uphold both IFRs in their
entirety. See Kleissler, 157 F.3d at 967 (concluding that the
proposed intervenors had carried their burden by showing “a
reasonable doubt whether the government agency would
adequately represent [their] concerns”).

The preceding discussion also demonstrates why our
decision in Virgin Islands is inapposite. We determined there
that the interests of the putative intervenor and the government
were “essentially identical,” 748 F.3d at 522, but for reasons
that do not apply here. First, the inmate in that case
“extensively quote[d]” from the government’s pleadings, id. at
521, which the Little Sisters have not done. Second, the United
States sought to remedy several allegedly unconstitutional
prison conditions, id. at 518, which meant that the inmate who
moved to intervene was one of “the exact constituents” the
government attempted to protect, and both parties shared the
same interest in ensuring that any remedy was “strictly
enforced,” id. at 523. Unlike that situation, here the IFRs
protect more than religious nonprofits like the Little Sisters,
and the Little Sisters do not share the government’s interest in
upholding every aspect of both IFRs. Accordingly, with an eye

19
toward the “elasticity” and “flexibility” that Rule 24
contemplates, Kleissler, 157 F.3d at 970, 971, and cognizant of
the highly fact-bound nature of requests to intervene under
Rule 24(a), we conclude that the Little Sisters’ interests may
not be adequately represented by the federal government.4
Therefore, we must reject the District Court’s contrary holding,
which improperly applied our precedent.

IV

For the reasons stated, we will reverse the District
Court’s order denying the Little Sisters’ motion to intervene
under Rule 24(a), and we will remand the case to permit
intervention for the purpose of defending the portions of the
religious exemption IFR that apply to religious nonprofit
entities.

4
Because we hold that the Little Sisters meet the
requirements to intervene as of right, we need not review the
District Court’s ruling regarding permissive intervention.

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