## Facts

- Federal regulations under the Affordable Care Act required most employer health plans to provide no-cost coverage for FDA-approved contraception, with an accommodation process for certain religious nonprofits.
- Little Sisters of the Poor Saints Peter and Paul Home, a religious nonprofit, had previously litigated challenges to the accommodation on religious-exercise grounds.
- In 2017, federal agencies issued interim final rules expanding religious and moral exemptions from the contraceptive-coverage mandate.
- The Commonwealth of Pennsylvania sued federal officials seeking declaratory and injunctive relief, alleging the interim final rules violated the ACA and the Administrative Procedure Act and would harm women’s access to no-cost contraception and the Commonwealth’s interests.
- The Little Sisters moved to intervene, asserting the lawsuit targeted rules intended to protect them and that invalidation of those rules could subject them again to the prior accommodation or penalties.
- The district court denied intervention, concluding the Little Sisters lacked a significantly protectable interest and were adequately represented by the federal government.
- The Little Sisters appealed; only the intervention ruling was before the Third Circuit.

## Issues

1. Whether the Little Sisters were entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(2), including timeliness, significantly protectable interest, practical impairment, and inadequate representation.
2. If intervention as of right was unavailable, whether denial of permissive intervention under Rule 24(b) was an abuse of discretion.

## Decision

- The Third Circuit reversed the order denying intervention and remanded with instructions to permit the Little Sisters to intervene as of right.
- The court held the intervention motion was timely.
- The court held the Little Sisters had a significantly protectable interest because the challenged rules directly affected their legal obligations and exposure to penalties.
- The court held the requested relief could practically impair that interest because vacatur or injunction of the rules could remove the protections the Little Sisters sought.
- The court held the Little Sisters met the minimal burden to show inadequate representation because the federal government’s broader policy interests could diverge from the Little Sisters’ focused religious interests.

## Legal Principles

- Rule 24(a)(2) intervention as of right requires: (1) timeliness; (2) a significantly protectable interest related to the action; (3) potential practical impairment of that interest from disposition; and (4) inadequate representation by existing parties.
- A significantly protectable interest may exist when a plaintiff challenges regulations that were adopted to address, and directly affect, the applicant’s legal position and potential liabilities.
- The impairment element is practical and forward-looking; the applicant need only show the action may impede protection of its interest, not that impairment is certain.
- Government participation does not automatically establish adequate representation of private parties; even subtle differences between public policy objectives and a private party’s narrower interests can satisfy the inadequate-representation requirement.

## Conclusion

The Third Circuit held that a religious nonprofit directly affected by federal contraceptive-coverage exemption rules could intervene as of right in a state’s APA and ACA challenge to those rules because it had a protectable interest at risk of practical impairment and the federal government might not fully represent its distinct religious-exercise interests.


Commonwealth of Pennsylvania v. President United States, 888 F.3d 52 (3d Cir. 2018)