Case 1:13-cv-00104-RBW Document 1 Filed 01/24/13 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRANCIS A. GILARDI, JR. 601 North Stolle Avenue Sidney, Ohio 45365

PHILIP M. GILARDI 601 North Stolle Avenue Sidney, Ohio 45365

Civil Action No. _________________

FRESH UNLIMITED, INC., d/b/a Freshway Foods 601 North Stolle Avenue Sidney, Ohio 45365

FRESHWAY LOGISTICS, INC. 601 North Stolle Avenue Sidney, Ohio 45365

Plaintiffs,

vs.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES 200 Independence Avenue, SW Washington, DC 20201

KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services 200 Independence Avenue, SW Washington, DC 20201

UNITED STATES DEPARTMENT OF THE TREASURY 1500 Pennsylvania Avenue, NW Washington, DC 20220

TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the United States Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

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UNITED STATES DEPARTMENT OF LABOR 200 Constitution Avenue, NW Washington, DC 20210 HILDA L. SOLIS, in her official capacity as Secretary of the United States Department of Labor 200 Constitution Avenue, NW Washington, D.C. 20210
Defendants. _______________________________________/
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Francis A. Gilardi, Jr., Philip M. Gilardi, Fresh Unlimited, Inc., d/b/a Freshway Foods, and Freshway Logistics, Inc. (hereafter collectively “Plaintiffs”), by and through their attorneys, bring this complaint against Defendants United States Department of Health and Human Services, Kathleen Sebelius, United States Department of the Treasury, Timothy F. Geithner, United States Department of Labor, Hilda L. Solis, and their successors in office (hereafter collectively “Defendants”). In support thereof, Plaintiffs allege the following based on information and belief:
INTRODUCTION 1. Plaintiffs seek judicial review concerning Defendants’ violations of Plaintiffs’ constitutional and statutory rights in connection with Defendants’ promulgation and implementation of certain regulations adopted under the Patient Protection and Affordable Care Act of 2010 (hereafter “Affordable Care Act”), specifically those regulations mandating that non-exempt employers include in employee health benefit plans coverage of certain goods and services, regardless of whether the provision of such coverage violates the employer’s religious beliefs and moral values. 2. Plaintiffs ask this court for declaratory and injunctive relief from the operation of a rule
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promulgated by Defendants in or about February 2012 mandating that employee health benefit plans include coverage, without cost sharing, “all Food and Drug Administration [“FDA”]approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning on o r after August 1, 2012 (hereafter “the Mandate”). 45 C.F.R. § 147.130(a)(1)(iv), as confirmed at 77 F ed. Reg. 8725 (Feb. 15, 2012) , adopting and quoting Health Resources and Services Administration Guidelines1/ found at http://www.hrsa.gov/womensguidelines (last visited Jan. 21, 2013).
3. Plaintiffs Francis A. Gilardi, Jr. and Philip M. Gilardi are adherents of the Catholic faith and hold to the Catholic Church’s teachings regarding the immorality of artificial contraceptives, sterilization, and abortion. They are the sole owners of Plaintiffs Fresh Unlimited, Inc., d/b/a Freshway Foods, and Freshway Logistics, Inc. with each holding 50% of the corporate shares. As the two owners with controlling interests in the two corporations, they conduct their businesses in a manner that does not violate their sincerely-religious beliefs or moral values, and they wish to continue to do so.
4. For approximately the last ten years, Plaintiffs’ employee health benefit plan specifically has excluded contraceptives, abortion, and sterilization, pursuant to Plaintiffs’ religious beliefs and moral values.
5. Plaintiffs Francis A. Gilardi, Jr. and Philip M. Gilardi have concluded that complying with the Mandate would require them to violate their religious beliefs and moral values because the Mandate requires them and/or the corporations they own and control to arrange for, pay for, provide, and facilitate contraception methods, sterilization procedures, and abortion because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “Ella” come within the
1/ The Health Resources and Services Administration is an agency that is part of Defendant United States Department of Health and Human Services.
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Mandate’s and the Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
6. Plaintiffs contend that the Mandate pressures them to either (1) comply with the Mandate and violate their religious beliefs and moral values or (2) incur ruinous fines and penalties if they choose to continue to conduct their businesses consistent with their religious beliefs and moral values.
7. Plaintiffs contend that the Mandate violates their rights under the Religious Freedom Restoration Act and the First Amendment to the United States Constitution and that it also violates the Administrative Procedure Act.
JURISDICTION AND VENUE 8. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2) because it is a civil action against agencies and officials of the United States based on claims arising under the Constitution, laws of the United States, and regulations of executive departments and it seeks equitable or other relief under an Act of Congress, and also pursuant to 28 U.S.C. § 1361 , as this court may compel officers and agencies of the United States to perform a duty owed Plaintiffs. 9. This court has jurisdiction to render declaratory and injunctive relief pursuant to 5 U.S.C. § 702, 28 U.S.C. §§ 2201-2202, 42 U.S.C. § 2000bb-1, and Federal Rules of Civil Procedure 57 and 65. 10. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(e) because Defendants reside in this district and a substantial part of the acts giving rise to Plaintiffs’ claims occurred in this district. 11. This court has the authority to award Plaintiffs their costs and attorneys’ fees pursuant to
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28 U.S.C. § 2412 and 42 U.S.C. § 1988. PLAINTIFFS
12. The Plaintiffs to this action are Francis A. Gilardi, Jr., Philip M. Gilardi, Fresh Unlimited, Inc., d/b/a Freshway Foods, and Freshway Logistics, Inc. Hereafter in this complaint, Plaintiffs Francis A. Gilardi, Jr. and Philip M. Gilardi will be referred to as “Francis Gilardi,” “Philip Gilardi,” or “Francis and Philip Gilardi”; Plaintiff Fresh Unlimited, Inc., d/b/a Freshway Foods will be referred to as “Freshway Foods”; and Plaintiff Freshway Logistics, Inc. will be referred to as “Freshway Logistics.”
13. Francis and Philip Gilardi are individuals and citizens of the State of Ohio and the United States of America.
14. Francis and Philip Gilardi each hold a 50% ownership stake in Freshway Foods and Freshway Logistics, and, therefore, together they own the full and controlling interest in both companies.
15. Francis Gilardi is the Chief Executive Officer and Treasurer of Freshway Foods and Freshway Logistics and Philip Gilardi is the President and Secretary. They are the only Directors of the two corporations, and together they set the policies governing the conduct of all phases of the two corporations.
16. Freshway Foods is a closely-held and family owned fresh produce processor and packer serving twenty-three states for over twenty-four years. It has approximately 340 full-time employees.
17. Freshway Logistics is a closely-held and family owned for-hire carrier of mainly refrigerated products serving twenty-three states since 2003. It has approximately fifty-five fulltime employees.
18. Freshway Foods and Freshway Logistics are both located at 601 North Stolle Avenue, 5

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Sidney, Ohio, which is in Shelby County. Both entities are Subchapter S corporations and are incorporated under the laws of the State of Ohio.
DEFENDANTS 19. Defendant United States Department of Health and Human Services (hereafter “HHS”) is an agency of the United States and is responsible for the administration and enforcement of the Mandate. 20. Defendant Kathleen Sebelius is Secretary of HHS and is named as a p arty only in her official capacity. 21. Defendant United States Department of the Treasury is an agency of the United States and is responsible for the administration and enforcement of the Mandate. 22. Defendant Timothy F. Geithner is Secretary of the Treasury and is named as a party only in his official capacity. 23. Defendant United States Department of Labor (hereafter “DOL”) is an agency of the United States and is responsible for the administration and enforcement of the Mandate. 24. Defendant Hilda L. Solis is Secretary of DOL and is named as a p arty only in her official capacity.
FACTUAL ALLEGATIONS 25. Francis and Philip Gilardi hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. They sincerely believe that actions intended to terminate an innocent human life by abortion are gravely sinful. 26. Francis and Philip Gilardi also sincerely believe in the Catholic Church’s teaching regarding the immorality of artificial means of contraception and sterilization. 27. Francis and Philip Gilardi manage and operate Freshway Foods and Freshway Logistics in a way that reflects the teachings, mission, and values of their Catholic faith, and they desire to
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continue to do so. 28. Examples of how Plaintiffs further their religious beliefs and moral values include the
following: a. For approximately the last ten years, Francis and Philip Gilardi have affixed to the back of the trucks they own through a separate company, but which bear the name of Freshway Foods, a sign stating, “It’s not a choice, it’s a child,” as a way to promote their pro-life views to the public; b. Francis and Philip Gilardi strongly support financially and otherwise their Catholic parish, schools, and seminary; c. In or about 2004, Francis and Philip Gilardi drafted a values statement listing values by which their companies would be run. They listed “Ethics” first since it is their primary business value: “Ethics: Honest, Trustworthy and Responsible to: - Each Other; - Our Customers; - Our Vendors. Non-negotiable - Supersedes everything”; d. Freshway Foods makes annual monetary and/or in-kind donations, primarily food, to many community non-profit charitable organizations, including Agape, Compassionate Care, the YMCA, Holy Angel’s Soup Kitchen, United Way, Habitat for Humanity, American Legion, Bill McMillian’s Needy Children, Elizabeth’s New Life Center, and local schools; e. Freshway Logistics donates a trailer for use by the local Catholic parish for its annual picnic. Freshway Logistics also uses its trucks to deliver the food donated by Freshway Foods to food banks outside the Sidney, Ohio, area; f. During the Monthly Associate Appreciation Lunches, Plaintiffs provide alternative foods for their employees to accommodate the types of foods their employees are allowed to eat pursuant to their religious beliefs; and 7

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g. Plaintiffs provide their Muslim employees with space to pray during breaks and lunches. During Ramadan, Plaintiffs adjust break periods to allow their Muslim employees, pursuant to their religion, to eat after sundown.
29. Moreover, Freshway Foods and Freshway Logistics provide their full-time employees with a self-insured employee health benefits plan that provides employees with health insurance and prescription drug insurance through a third-party administrator and stop loss provider. Employees of the two corporations may choose a basic option or a premier option from the plan. The plan is renewed on April 1.
30. For approximately the last ten years, Plaintiffs have specifically excluded coverage of all contraceptives, abortion, and sterilization, because paying for such services as a part of an employee health benefits plan would violate Plaintiffs’ sincerely-held religious beliefs and moral values.
31. Like other non-cash benefits provided to employees, Plaintiffs consider the provision of employee health insurance an integral component of furthering their mission, values, and religious beliefs.
32. Plaintiffs cannot arrange for, pay for, provide, or facilitate employee health plan coverage for contraceptives, sterilization, abortion, or related education and counseling without violating their sincerely-held religious beliefs and moral values.
APPLICABLE PROVISIONS OF THE MANDATE 33. Under the Mandate being challenged herein and related Affordable Care Act provisions, an employer of fifty or more full-time employees, such as Plaintiffs, must offer, unless exempted, a group health plan to employees that includes coverage for all FDA-approved contraceptive methods, sterilization procedures, and related education and counseling. 34. The Mandate does not apply to employers of fewer than fifty full-time employees unless
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those employers choose to offer their employees health insurance. 35. “Grandfathered” health plans are exempted from the Mandate. Such plans were in
existence as of the enactment of the Affordable Care Act on or about March 23, 2010, and have not since been materially changed.
36. Plaintiffs’ group health plan is not “grandfathered” as it has been materially changed since on or about March 23, 2010 , for example, by increasing doctor visit co-pays by $10 and $15 for the basic option and the premier option respectively.
37. Permanently exempt from the Mandate are “religious employers,” as defined at 45 CFR § 147.130(a)(1)(A) and (B). Temporarily exempted from the Mandate are non-profit employers with religious objections to covering contraceptive services, 77 Fed. Reg. 8725 (Feb. 15, 2012), and employers who satisfy the criteria of the “temporary enforcement safe harbor” do not have to comply with the Mandate until at least August 1, 2013 . “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers” (Aug. 15, 2012) , http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf. (last visited Jan. 24, 2013).
38. Plaintiffs do not qualify as “religious employers” under 45 C .F.R. § 147.130(a)(1)(A) and (B), nor can they take advantage of the “temporary enforcement safe harbor” because of their for-profit status.
39. Accordingly, the Mandate applies to Plaintiffs as they employ fifty or more full-time employees and are not otherwise exempted from the Mandate.
40. The Mandate went into effect on August 1, 2012, for non-exempt for-profit employers, such as Plaintiffs, and the Mandate applies to the first health insurance plan-year starting after August 1, 2012.
41. Plaintiffs wish to renew health insurance coverage for their full-time employees on April 9

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1, 2013, while, at the same time, continuing to exclude coverage for all FDA-approved contraceptive methods, including injectable contraceptives, abortion, sterilization procedures, and related patient education and counseling, as they have been doing for the past several years.
42. Under the terms of the Mandate and absent relief from this court, Plaintiffs will be required to violate their religious beliefs and moral values by providing their full-time employees with coverage of goods, services, activities, and practices that Plaintiffs consider sinful and immoral and which are currently excluded from their existing health plan.
43. Failure to comply with the Mandate will subject Plaintiffs to incur significant fines and penalties.
44. Failure to provide health insurance that complies with the Mandate may result in fines and penalties of $100 per day for each employee not properly covered, 26 U.S.C. § 4980D, as well as potential enforcement lawsuits, 26 U.S.C. §§ 1132, 1185d.
45. Should Francis Gilardi, Philip Gilardi, and Freshway Foods, pursuant to their sincerelyheld religious beliefs and moral values, not provide health insurance that complies with the Mandate for their approximately 340 full-time employees, they would be subjected to daily fines and penalties of about $34,000, totaling over $12.4 million annually.
46. Should Francis Gilardi, Philip Gilardi, and Freshway Logistics, pursuant to their sincerely-held religious beliefs and moral values, not provide health insurance that complies with the Mandate for their approximately fifty-five full-time employees, they would be subjected to daily fines and penalties of about $5,500, totaling over $2 million annually.
47. Non-exempt employers with fifty or more full-time employees that fail to provide any employee health insurance plan are subjected to annual fines and penalties of $2,000 for each full-time employee, not counting thirty of them. 26 U.S.C. § 4980H.
48. The Mandate pressures Plaintiffs into choosing between complying with the Mandate’s 10

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requirements in violation of their religious beliefs and moral values or paying ruinous fines and penalties that would have a crippling impact on t heir ability to survive economically. The Mandate, therefore, imposes a substantial burden on Plaintiffs’ religious exercise.
49. Any alleged interest Defendants have in providing free FDA-approved contraceptives, abortifacients, sterilization procedures, and related education and counseling services, without cost sharing, is not compelling as applied to Plaintiffs. In addition, any such interest can be advanced by Defendants through other more narrowly tailored means that would not require Plaintiffs to pay for and otherwise support coverage of such items through their employee health care plan in violation of their religious beliefs and moral values.
50. Plaintiffs lack an adequate or available administrative remedy. 51. Plaintiffs lack an adequate remedy at law.
CAUSES OF ACTION COUNT I
Violation of the Religious Freedom Restoration Act 52. Plaintiffs repeat and re-allege the allegations in paragraphs 1 t hrough 51 above and incorporate those allegations herein by reference. 53. Plaintiffs’ sincerely held religious beliefs prevent them from arranging for, paying for, providing, or facilitating coverage for contraceptive methods, sterilization procedures, abortion, and patient education and counseling related to such procedures. 54. The Mandate, by requiring Plaintiffs to provide such coverage, imposes a substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between continuing to conduct their businesses in accordance with their religious beliefs and moral values or paying substantial annual fines and penalties to the government. 55. The Mandate furthers no compelling governmental interest, nor is it necessary to prevent
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any concrete harm to such an interest. 56. The Mandate is not narrowly tailored to furthering any compelling interest. 57. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 58. The Mandate and Defendants’ threatened enforcement of the Mandate violates rights
secured to Plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. 59. Absent injunctive and declaratory relief against the Mandate, Plaintiffs will suffer
irreparable harm, and they request the relief set forth below in their prayer for relief. COUNT II
Violation of the First Amendment’s Free Exercise Clause 60. Plaintiffs repeat and re-allege the allegations in paragraphs 1 t hrough 51 above and incorporate those allegations herein by reference. 61. Plaintiffs’ sincerely held religious beliefs prevent them from arranging for, paying for, providing, or facilitating coverage for contraceptive methods, sterilization procedures, abortion, and patient education and counseling related to such procedures. 62. The Mandate, by requiring Plaintiffs to provide such coverage imposes a s ubstantial burden on P laintiffs’ free exercise of religion by coercing Plaintiffs to choose between continuing to conduct their businesses in accordance with their religious beliefs and moral values or paying substantial annual fines and penalties to the government. 63. The Mandate is neither neutral nor generally applicable. 64. The Mandate furthers no compelling governmental interest, nor is it necessary to prevent any concrete harm to such an interest. 65. The Mandate is not narrowly tailored to furthering any compelling interest. 66. The Mandate is not the least restrictive means of furthering the Defendants’ stated interests.
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67. The Mandate and Defendants’ threatened enforcement of the Mandate violates Plaintiffs’ rights to the free exercise of religion as guaranteed by the First Amendment to the United States Constitution.
68. Absent injunctive and declaratory relief against the Mandate, Plaintiffs will suffer irreparable harm, and they request the relief set forth below in their prayer for relief.
COUNT III Violation of the First Amendment’s Free Speech Clause 69. Plaintiffs repeat and re-allege the allegations in paragraphs 1 t hrough 51 above and incorporate those allegations herein by reference. 70. The First Amendment protects organizations as well as individuals from being compelled to speak and, in many circumstances, from being compelled to subsidize the speech of others. 71. Expenditures of money are a form of protected speech. 72. The Mandate compels Plaintiffs to arrange for, pay for, provide, and facilitate coverage for education and counseling related to contraception, sterilization, and abortion, which is speech to which Plaintiffs’ morally object. 73. Plaintiffs believe that the aforementioned services, activities, and practices covered by the Mandate are contrary to their sincerely-held religious beliefs. 74. The Mandate compels Plaintiffs to subsidize goods, services, activities, practices, and speech that Plaintiffs believe to be immoral and, thereby, violates Plaintiffs’ right to be free from uttering, subsidizing, or supporting compelled speech with which Plaintiffs disagree on religious and moral grounds. 75. The Mandate and Defendants’ threatened enforcement of the Mandate violates Plaintiffs’ free speech rights as guaranteed by the First Amendment to the United States
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Constitution. 76. Absent injunctive and declaratory relief against the Mandate, Plaintiffs will suffer
irreparable harm, and they request the relief set forth below in their prayer for relief. COUNT IV
Violation of the Administrative Procedure Act 77. Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 51 above and incorporate those allegations herein by reference. 78. The Affordable Care Act expressly delegates to the Health Resources and Services Administration, which is an agency that is part of Defendant United States Department of Health and Human Services, the authority to establish “preventive care” guidelines that a group health plan and health insurance issuer must abide by. 79. Given this express delegation, Defendants were obliged to engage in formal notice and comment rulemaking as prescribed by law before Defendants issued the guidelines that group health plans and insurers must abide by. 80. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given a chance to take part in the rulemaking through the submission of written data, views, or arguments. 81. Defendants promulgated the “preventive care” guidelines without engaging in the formal notice and comment rulemaking as prescribed by law. Defendants delegated the responsibilities for issuing “preventive care” guidelines to a non-governmental entity, the Institute of Medicine, which did not permit or provide for broad public comment otherwise required by the Administrative Procedure Act. 82. Defendants also failed to engage in the required notice and comment rulemaking when Defendants issued the interim final rules and the final rule that incorporates the “preventive care”
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guidelines. 83. The Mandate violates Section 1303(b)(1)(A) of the Affordable Care Act, which provides
that “nothing in this title” “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i) (codification of Section 1303 of the Affordable Care Act).
84. The Mandate violates the Religious Freedom Restoration Act as set forth in this complaint.
85. The Mandate violates the First Amendment to the United States Constitution as set forth in this complaint.
86. Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on for-profit employers such as Plaintiffs.
87. The Mandate and Defendants’ actions are arbitrary and capricious, not in accordance with law or required procedure, and contrary to constitutional right, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).
88. Absent injunctive and declaratory relief against the Mandate, Plaintiffs will suffer irreparable harm, and they request the relief set forth below in their prayer for relief.
PRAYER FOR RELIEF 89. Plaintiffs repeat and re-allege all allegations made above and incorporate those allegations herein by reference, and Plaintiffs request that this court grant them the following relief and enter final judgment against Defendants and in favor of Plaintiffs:
A. Enter a declaratory judgment that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act;
B. Enter a declaratory judgment that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Free Exercise Clause of the First Amendment to the
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United States Constitution;

C. Enter a declaratory judgment that the Mandate and Defendants’ enforcement of the

Mandate against Plaintiffs violates the Free Speech Clause of the First Amendment to the United

States Constitution;

D. Enter a declaratory judgment that the Mandate and Defendants’ enforcement of the

Mandate against Plaintiffs violates the Administrative Procedure Act;

E. Enter preliminary and permanent injunctions prohibiting Defendants, their officers,

agents, servants, employees, successors in office, attorneys, and those acting in active concert or

participation with them, including any insurance carriers or third party insurance plan

administrators with whom Plaintiffs may contract for employee health benefits, from applying

and enforcing against Plaintiffs the Mandate and any related regulations, rules, statutes, laws,

penalties, fines, or assessments;

F. Award Plaintiffs their costs and attorney’s fees associated with this action; and

G. Award Plaintiffs any further relief this court deems equitable and just.

Respectfully submitted on this 24th day of January, 2013,

Edward L. White III* American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Tel. 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
Francis J. Manion* Geoffrey R. Surtees* American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 Tel. 502-549-7020; Fax. 502-549-5252 fmanion@aclj.org gsurtees@aclj.org

/s/ Colby M. May Colby M. May D.C. Bar No. 394340 American Center for Law & Justice 201 Maryland Avenue, N.E. Washington, D.C. 20002 Tel. 202-546-8890; Fax. 202-546-9309 cmmay@aclj-dc.org
Erik M. Zimmerman* American Center for Law & Justice 1000 Regent University Drive Tel. 757-226-2489; Fax. 757-226-2836 ezimmerman@aclj.org
* Pro hac vice applications forthcoming

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 Case 1:13-cv-00104-EGS Document 18 Filed 02/06/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRANCIS A. GILARDI, JR., et al.,

Plaintiffs, v.

Civil Action No. 1:13-cv-00104-RBW

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants. ________________________________________/

PLAINTIFFS’ RESPONSE TO COURT ORDER AT DOCKET ENTRY 11

Pursuant to this Court’s order at docket entry 11, Plaintiffs explain why the instant action is

related to Tyndale House Publishers, Inc. v. Sebelius, 1:12-cv-01635-RBW (D.D.C.).

INTRODUCTION

“Civil . . . cases are deemed related when the earliest is still pending on the merits in the

District Court and they . . . involve common issues of fact, or . . . grow out of the same event or

transaction.” LCvR 40.5(a)(3)(ii) & (iii).

For purposes of Rule 40.5, there is a critical difference between (1) cases in which

defendants commit one act that injures multiple plaintiffs in the same way—as in the instant

action, Tyndale House, and cases such as Autumn Journey Hospice, Inc. v. Sebelius, 753 F. Supp.

2d 135 (D.D.C. 2010)—and (2) cases in which defendants commit a series of distinct, separate

acts, each of which harms one specific plaintiff in a unique way—as in cases such as Tripp v.

Executive Office of the President, 194 F.R.D. 340 (D.D.C. 2000), and Dale v. Executive Office of

the President, 121 F. Supp. 2d 35 (D.D.C. 2000).

The instant action is related to Tyndale House for the following reasons:

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I. Commonality Between the Cases There is ample commonality between the instant action and Tyndale House. Both cases grow out of the same event: the enactment of the Mandate (which requires the plaintiffs to provide coverage for all FDA-approved contraceptive methods, sterilization procedures, and related education and counseling in their employee health plans). Doc. 1, Cmplt. ¶¶ 33-38; Tyndale House Cmplt. ¶¶ 77-86. Both cases are brought against the same six federal government defendants responsible for the promulgation, administration, and enforcement of the Mandate. Doc. 1, Cmplt. ¶¶ 1-2, 19-24; Tyndale House Cmplt. ¶¶ 13-18. As this Court has previously held, the promulgation and impending enforcement of a regulation against plaintiffs in separate cases may cause their cases to be related. Autumn Journey, 753 F. Supp. 2d at 140. Moreover, in both the instant action and Tyndale House, the for-profit companies and their owners have a demonstrated commitment to act in accordance with a set of religious principles. Doc. 1, Cmplt. ¶¶ 3, 27, 28; Tyndale House Cmplt. ¶ 25-36, 69. In both cases, the owners of the businesses aver, based on their sincerely-held religious beliefs, that coverage of most or all forms of contraception and related education and counseling is immoral and that their faith forbids them from paying for, providing, and facilitating the use of such goods and services through their self-insured employee health plans. Doc. 1, Cmplt. ¶¶ 3, 5, 25, 26, 29, 30, 32; Tyndale House Cmplt. ¶¶ 3, 68, 69, 73, 75, 88, 89. Both complaints explain that, absent relief from this Court, the plaintiffs will be forced to either take action forbidden by their faith or incur substantial annual penalties for non-compliance with the Mandate. Doc. 1, Cmplt. ¶¶ 5, 6, 42, 43, 54; Tyndale House Cmplt. ¶¶ 8, 87, 90.1/
1/ The plaintiffs in both cases, none of which are exempt from the Mandate, share sincerelyheld religious beliefs that prohibit them from complying with the Mandate. As a result, the type of businesses they are engaged in is not relevant.
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Also, in both the instant action and Tyndale House, the employers have more than fifty fulltime employees and therefore face annual penalties if they drop their employee health plans; the employers in both cases also face daily penalties if they provide employee health plans that do not comply with the Mandate. Doc. 1, Cmplt. ¶¶ 16-17, 43-47; Tyndale House Cmplt. ¶¶ 71, 9098.
In addition, the four causes of action in the instant case are based on the same legal provisions as four of the Tyndale House causes of action and are substantially similar in nature. Doc. 1, Cmplt. Cnts. I-IV; Tyndale House Cmplt. Cnts. I, II, IV, VI. Both complaints also allege that the defendants lack a compelling interest in applying the Mandate to the plaintiffs and that there are less restrictive means available to further defendants’ stated interests. Doc. 1, Cmplt. ¶¶ 49, 55-57; Tyndale House Cmplt. ¶¶ 6, 154, 155.
Further support for the conclusion that the instant action is related to Tyndale House is the federal government’s position in two other challenges to the Mandate brought by for-profit employers. The federal government, on behalf of the same defendants who are parties to the instant action, recently asked the United States Court of Appeals for the Tenth Circuit to assign two separate challenges to the Mandate to the same oral argument panel, characterizing the appeals as “related.” Ex. A at 1-4, Motion to Assign Related Appeals to the Same Panel, Newland v. Sebelius, No. 12-1380 & Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294 (10th Cir. Jan. 7, 2013). The government noted that both cases involve for-profit companies challenging the Mandate under RFRA and the First Amendment based on the plaintiffs’ religious objections. Id. The government also acknowledged that treating the cases as related would conserve judicial resources. Id. It was not relevant that the plaintiffs operated in different business fields (manufacturing in one case, the sale of craft supplies and books in the other).
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II. Review of Analogous Cases
For purposes of Rule 40.5, the Autumn Journey case is analogous to the present matter. The
plaintiff in Autumn Journey was a hospice care provider that received a repayment demand from
the Department of Health and Human Services based upon a Department regulation that
governed the calculation of a statutory cap for Medicare reimbursements. 753 F. Supp. 2d at 136-
38. The provider alleged that the regulation was in conflict with the statutory provision that it
was supposed to implement. Id. at 138. The provider filed a notice stating that the case was
related to Russell-Murray v. Sebelius, No. 09-2033, a lawsuit brought by another provider
alleging that the same regulation conflicted with the same statute. Id. The government objected,
asserting that the two cases did not involve common issues of fact or arise out of a common
event or transaction. Defendant’s Objection to Plaintiff’s Related Case Designation, Autumn
Journey Hospice, Inc. v. Sebelius, 2010 U.S. Dist. Ct. Motions LEXIS 57317, at *5-7 (Mar. 15,
2010).
This Court overruled the government’s objection. This Court held that Autumn Journey was
related to Russell-Murray and stated:
Since the commencement of the Russell-Murray case, different hospice care providers have commenced six separate actions in this district challenging cap repayment demands issued by HHS. . . . Each of these cases concerns a hospice care provider subject to recently issued cap repayment demands calculated pursuant to the same regulation, 42 C.F.R. § 418.309. In each case, the hospice care provider challenges the validity of the regulation on the grounds that it does not provide for the proportional allocation of beneficiaries across years of service, as required by 42 U.S.C. § 1395f(i)(2). Each case thus presents identical issues for resolution: whether the regulation impermissibly conflicts with the underlying statute and, if so, what relief should be afforded the plaintiff hospices. Accordingly, there is substantial overlap in both the factual underpinning and the legal matters in dispute in each of these hospice cap cases.
Indeed, in litigation before another federal district court, HHS itself has stipulated to the transfer of separate hospice cap cases to a single judge, acknowledging that those separate challenges to the same hospice cap regulation “involve common questions of
4

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fact, arise from similar transactions and events, involve similar parties, and the same counsel.” . . . These cases . . . appear to be no more related than the hospice cap cases before the undersigned judge. . . . Furthermore, the court notes that HHS has not objected to the related case designations filed in any of the other five hospice cap cases commenced after Russell-Murray.
In light of the above, the court concludes that these hospice cap cases do indeed share common factual issues and arise out of a common event or transaction—namely, the promulgation of the hospice cap reimbursement regulation and the calculation of the plaintiff hospices’ cap repayment obligations pursuant to that regulation—such that judicial economy would be served by having these matters resolved by the same judge.
Id. at 140 (citations omitted).2/
Similarly, Tyndale House and the instant action share common factual issues and arise out of
a common event: the enactment of the Mandate. See id. As in Autumn Journey, “there is
substantial overlap in both the factual underpinning and the legal matters in dispute in each of
[the Mandate] cases.” See id. And, as in Autumn Journey, the existence of widespread factual
and legal commonality, coupled with the interest of judicial economy, outweighs the minimal,
inconsequential differences. Furthermore, just as the Autumn Journey Court found it significant
that the defendants had acknowledged before another federal court that challenges to the
reimbursement cap were related, it is significant that Defendants have already acknowledged in
the Tenth Circuit that two separate Mandate cases brought by for-profit plaintiffs are related. Ex.
A at 1-4.3/
2/ In a related context, this Court noted that 246 lawsuits in which hospitals serving Medicare and Medicaid beneficiaries sought to reopen reimbursement notices issued to them over the course of the previous three years in light of a new agency ruling “raise[d] the same or similar legal and factual issues” and were related cases. Baystate Health Sys. v. Thompson, 254 F. Supp. 2d 80, 80 (D.D.C. 2003); In re: Medicare Reimbursement Litigation, 414 F.3d 7, 8-10 (D.C. Cir. 2005).
3/ There is no requirement that a case be cited in a complaint to be considered related. For example, in Autumn Journey, the complaint did not specifically reference the related cases that were before this Court. See Complaint, Autumn Journey Hospice, Inc. v. Sebelius, Case 1:09-cv02403-RMU, Doc. 1 (Dec. 22, 2009); Related Case Notice, Autumn Journey Hospice, Inc. v. Sebelius, Case 1:09-cv-02403-RMU, Document 2-1 (Dec. 22, 2009); 753 F. Supp. 2d at 138.
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Moreover, in Medford v. District of Columbia, 691 F. Supp. 1473 (D.D.C. 1988), this Court held that three lawsuits seeking to collect attorneys’ fees and costs incurred in bringing successful administrative actions under the same federal law were related cases. Id. at 1474. This Court noted that the factual issues were quite similar (albeit not identical in all respects) and stated that the plaintiffs in the first case “were in essentially the same position as [the plaintiffs in the second case] find themselves now.” Id. at 1474-75; see also Assiniboine & Sioux Tribe of the Fort Peck Indian Reservation v. Norton, 211 F. Supp. 2d 157, 160 (D.D.C. 2002) (stating that “although differences may exist between the instant matter and Cobell, there are clearly issues of fact that are common to both cases that are sufficient” to establish them as related cases).
Furthermore, the three cases raised an identical legal issue. This Court stated that “[i]t would make no sense to have several different district court judges review the same legal issue— particularly when the matter is now on appeal.” 691 F. Supp. at 1475.4/ This Court also explained:
Even though defendants correctly contend that each individual handicapped child’s proceeding involves some separate “factual” issues, such variation is insufficient to undercut the efficiency rationale for finding these cases to be related. The fact that identical legal issues are involved in all three cases greatly outweighs any argument for splitting these cases up based on trivial factual variances between each handicapped child’s experience with the bureaucracy. . . .
[D]efendants have submitted briefs in these cases that are verbatim copies of briefs submitted in one or more of the earlier cases. . . .
Because treating these cases as related achieves great economies and preserves scarce judicial resources, defendants’ arguments must be rejected. The related case rule must be enforced.
4/ The Tyndale House decision concerning the plaintiffs’ motion for a preliminary injunction has been appealed. Tyndale House Publ’rs, Inc. v. Sebelius, No. 13-5018 (D.C. Cir. Jan. 18, 2013).
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Id. at 1475-76 & n.3; see also Assiniboine, 211 F. Supp. 2d at 157-59 (holding that lawsuits brought by Indian plaintiffs were related because, among other things, they alleged a breach of fiduciary duties that federal officials owed them, the plaintiffs shared the ultimate goal of receiving an accounting of funds held in trust by the United States, and this Court would have to determine in each case whether the government had properly managed the plaintiffs’ funds).
As in Medford, the plaintiffs in Tyndale House “[are] in essentially the same position as [Plaintiffs in the instant case] find themselves now.” See 691 F. Supp. at 1474-75. And as in Medford, the minimal variation between Tyndale House and the instant case “is insufficient to undercut the efficiency rationale for finding these cases to be related,” and “[t]he fact that identical legal issues are involved in [both] cases” is highly significant. Id. at 1475-76. Furthermore, as in Medford, the government’s briefs filed in various Mandate cases are substantially similar in many respects, further counseling in favor of a related case designation. See id. at 1475, n.3.
In addition, in Twist v. Ashcroft, Magistrate Judge Facciola stated, in recommending that two cases be treated as related cases, that
there is an interest in judicial efficiency that is advanced by a judge’s familiarity with certain central facts that, at least, spares another judge from having to start at ground zero. . . . Simply put, I am half way up the hill and I cannot see why another judge or magistrate judge should have to start at the bottom. 2002 U.S. Dist. LEXIS 4115, at *5-6 (D.D.C. Mar. 11, 2002) (magistrate judge’s report and recommendation), adopted by 2002 U.S. Dist. LEXIS 27600 (Mar. 27, 2002). Similarly, in light of the extensive factual and legal overlap between Tyndale House and the instant action, and the minimal meaningful differences between them, judicial efficiency counsels in favor of treating them as related cases.
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Case 1:13-cv-00104-EGS Document 18 Filed 02/06/13 Page 8 of 12
III. Review of Distinguishable Cases The instant case and Tyndale House are more directly and substantially related to each other than the cases in which this Court concluded that the criteria of Rule 40.5 were not met. For example, in Tripp, the Calendar Committee of this Court concluded that the Tripp litigation was not related to Alexander v. FBI, Nos. 96-2123 & 97-1288. 196 F.R.D. at 201. The plaintiff in Tripp alleged that the Department of Defense had released information from her security clearance application to a magazine reporter in violation of the Privacy Act. Id. at 201-02. Alexander was “a class action alleging that the Executive Office of the President improperly obtained the confidential files of more than 700 individuals formerly employed by the White House.” Id. at 202. In examining the scope and purposes of Rule 40.5, this Court stated that “[t]he exception to the general rule [requiring random assignment of cases], contained in LCvR 40.5, rests primarily on considerations of judicial economy. It will often prove wasteful of time and resources for two judges to be handling cases that are so related that they involve common factual issues or grow out of the same event or transaction.” Id. In concluding that Tripp and Alexander were not related, this Court explained:
Alexander is a class action alleging a broad pattern of White House and FBI abuse of privacy rights in 1993 and 1994. Tripp, on the other hand, involves a single plaintiff whose primary allegation is that her privacy rights were violated by one incident involving disclosures to a reporter for the New Yorker in 1998. The breadth of discovery in Alexander or its overlap with the discovery in Tripp is not thought to render the cases related. While it is certainly true that there have been numerous lengthy and contentious disputes in Alexander which related to the scope of discovery regarding the Tripp disclosure and which consumed much judicial time and effort, that circumstance cannot govern applicability of the related case rule. . . .
There is little doubt that the other criterion for invoking LCvR 40.5 is not satisfied, namely that the more recently filed case did not “grow out of the same event or transaction”. . . .
8

Case 1:13-cv-00104-EGS Document 18 Filed 02/06/13 Page 9 of 12
Finally, application of the broad reading of LCvR 40.5 requested by Plaintiff could well lead to one judge being inundated with cases which might have only a tangential discovery connection, but no direct factual nexus, to the central allegations of the primary case. Id. at 202-03 & n.1. Likewise, in Dale, this Court upheld the denial of related-case status, concluding that the criteria of Rule 40.5 had not been met. 121 F. Supp. 2d at 36. The plaintiff alleged a violation of the Privacy Act based on actions the White House took while he was employed in the White House Travel Office and asserted that his case was related to other cases pending in this Court (primarily Alexander). This Court relied upon a previously issued order in the case that stated:
Plaintiff’s F.B.I. file was allegedly obtained by the White House while plaintiff was employed at the White House Travel Office, so the issues presented in the Alexander case—involving the White House obtaining F.B.I. files of former political appointees or government employees under the Reagan and Bush Administrations—simply do not arise out of the same event or transaction. Any common issues of fact are minimal and completely insufficient to meet plaintiff’s burden of demonstrating that these two cases are related. Id. at 37 (citation omitted). Unlike in Tripp and Dale, there is a substantial “direct factual nexus” between Tyndale House and the instant case. See 196 F.R.D. at 203. While Tripp, Dale, and Alexander involved different unlawful acts committed at different times, the Mandate harms the plaintiffs in Tyndale House and the Plaintiffs in the instant action in the same way. As noted previously, there is a key difference between a defendant committing a number of individual, distinct acts, each of which injures one specific plaintiff in a unique way (as in Tripp and Dale), and a defendant doing one thing that injures numerous plaintiffs in the same way (as in Autumn Journey, Tyndale House, and the instant action). Although the former situation does not typically result in cases being related, as each distinct act may raise important unique factual issues, the latter situation typically does result in cases being related, as multiple plaintiffs experience a shared injury from
9

Case 1:13-cv-00104-EGS Document 18 Filed 02/06/13 Page 10 of 12
“the same event or transaction” which gives rise to “common issues of fact.” See LCvR 40.5(a)(3).
In this vein, there is far more commonality and relatedness between the instant action and Tyndale House than there was in those cases where this Court concluded that allegations of discrimination were not related because the alleged discriminatory acts were of a distinctly different nature, were perpetrated by different individuals or entities, etc. See, e.g., Boyd v. Farrin, 2012 U.S. Dist. LEXIS 174656 (Dec. 10, 2012) (class action lawsuit alleging racial discrimination in lending by the United States Department of Agriculture was not related to a breach of contract lawsuit brought by individuals seeking compensation for advocacy and lobbying work they had done in support of legislation that benefitted the class); Stewart v. O’Neill, 225 F. Supp. 2d 16, 20 (D.D.C. 2002) (case alleging discrimination against AfricanAmerican agents by the Bureau of Alcohol, Tobacco, and Firearms was not related to case alleging discrimination against Hispanic agents by the United States Customs Service); Keerseagle v. Glickman, 194 F.R.D. 1, 3 (D.D.C. 2000) (case brought by Native American farmers alleging racial discrimination by county commissions in the review of their credit or benefit applications was not related to a case brought by African-American farmers alleging racial discrimination committed by county commissions in different regions of the country).5/
5/ Furthermore, Tyndale House is still “pending on the merits” for purposes of Rule 40.5. No final judgment has been entered in that case, which has been stayed pending the resolution of the federal government’s appeal from this Court’s grant of a preliminary injunction in favor of plaintiffs.
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CONCLUSION Accordingly, for the foregoing reasons, the instant action is related to Tyndale House under Local Civil Rule 40.5. Respectfully submitted on this 6th day of February, 2013,

/s/ Edward L. White III Edward L. White III (adm. phv) American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Tel. 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
Francis J. Manion (adm. phv) Geoffrey R. Surtees (adm. phv) American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 Tel. 502-549-7020; Fax. 502-549-5252 fmanion@aclj.org gsurtees@aclj.org

/s/ Colby M. May Colby M. May D.C. Bar No. 394340 American Center for Law & Justice 201 Maryland Avenue, N.E. Washington, D.C. 20002 Tel. 202-546-8890; Fax. 202-546-9309 cmmay@aclj-dc.org
/s/ Erik M. Zimmerman Erik M. Zimmerman (adm. phv) American Center for Law & Justice 1000 Regent University Drive Tel. 757-226-2489; Fax. 757-226-2836 ezimmerman@aclj.org

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Case 1:13-cv-00104-EGS Document 18 Filed 02/06/13 Page 12 of 12

CERTIFICATE OF SERVICE

I hereby certify that on February 6, 2013, I caused the foregoing and exhibit to be

electronically filed with the clerk of court using the CM/ECF system, which will send

notification of such filing to the counsel of record in this case who are CM/ECF participants, and

I also caused to be sent by United States Mail, first-class postage prepaid, a true and correct copy

of the foregoing and exhibit to each of the following non-CM/ECF participants:

U.S. Department of Health & Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201 Defendant

U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Defendant

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201 Defendant

Seth D. Harris, Acting Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210 Defendant

U.S. Department of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220 Defendant

Eric Holder, Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

Neal Wolin, Acting Secretary U.S. Department of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220 Defendant

Civil-process clerk c/o Ronald C. Machen Jr. U.S. Attorney, District of Columbia 555 4th Street, N.W. Washington, D.C. 20530

/s/ Edward L. White III Edward L. White III (adm. phv) American Center for Law & Justice

12

 
 Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRANCIS A. GILARDI, JR.; PHILIP M. GILARDI; FRESH UNLIMITED, INC., d/b/a Freshway Foods; and FRESHWAY LOGISTICS, INC.,
Plaintiffs,

v.

Civil Action No. 1:13-cv-104-RBW

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF THE TREASURY; NEAL WOLIN, in his official capacity as Acting Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF LABOR; and SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor,
Defendants.1/ ________________________________________/

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION. ORAL ARGUMENT AND HEARING REQUESTED WITHIN 21 DAYS.
STATEMENT OF POINTS OF LAW AND AUTHORITY.

Plaintiffs move this Court for the entry of an order granting them a preliminary injunction

pursuant to Fed. R. Civ. P. 65 and LCvRs 7, 65.1, and 65.1.1. Because Plaintiffs face irreparable

harm on April 1, 2013, when they renew their self-insured employee health benefits plan, they

respectfully request oral argument and a hearing on this motion within twenty-one days of its

filing, pursuant to LCvRs 7(f) and 65.1(d), and respectfully request a ruling on this motion by

1/ The successors in office for the former Secretary of the Treasury, Timothy F. Geithner, and the former Secretary of Labor, Hilda L. Solis, have been listed in the caption. Successors in office are automatically substituted as parties when they replace a public officer sued in his or her official capacity. See Fed. R. Civ. P. 25(d).

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 2 of 39
March 15, 2013.2/ The facts set forth in this motion and in the attached statement of points of law and authority establish that expedition of this motion is essential to prevent irreparable harm to Plaintiffs.
1. Federal regulations will require Plaintiffs on April 1, 2013, contrary to their religious beliefs and under pain of penalty, to obtain and pay for employee group health coverage for contraceptives, including abortion-inducing drugs, sterilization procedures, and related education and counseling, which Plaintiffs have been specifically excluding from their employee health benefits plan for about the past ten years pursuant to their religious beliefs.
2. Plaintiffs’ motion for a preliminary injunction is based on Count I (Religious Freedom Restoration Act) of their complaint. (Doc. 1.) Plaintiffs preserve for further proceedings before this Court all other issues and claims raised in their complaint including those that comprise Counts II, III, and IV and a determination of attorneys’ fees and costs.
3. Plaintiffs move this Court for a preliminary injunction prohibiting Defendants, their officers, agents, servants, successors in office, employees, attorneys, and those acting in concert or participation with them, and including any insurance carriers or third party insurance plan administrators with whom Plaintiffs may contract for group health benefits, from applying and enforcing against Plaintiffs any statutes, rules, laws, or regulations that require Plaintiffs to include in their employee health benefit plan any coverage of all Food and Drug Administration
2/ Pending is the resolution of the related cases issue as raised in this Court’s order at docket entry 11. Even though that issue is pending, Plaintiffs face irreparable harm on April 1, 2013, absent an injunction. Plaintiffs are filing this motion and supporting papers at this time since, as of the afternoon of February 7, 2013, they have received proof that each Defendant, plus the Attorney General and the United States Attorney, has been served with a summons and with a copy of the complaint. (Docs. 7-10, 13-15, 20.) There was an apparent delay in the Postal Service’s delivery of the complaint and summons by certified mail to Defendant Department of the Treasury.
2

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 3 of 39
(“FDA”)-approved contraceptives methods, sterilization procedures, and related patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg13(a)(4), (“the Mandate”), as well as any penalties, fines, assessments, or enforcement actions for non-compliance, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d, and also prohibiting Defendants, their officers, agents, servants, employees, successors in office, attorneys and those acting in active concert or participation with them from applying and enforcing the Mandate against any insurance carriers or third party plan administrators with whom Plaintiffs may seek to contract with respect to the provision or administration of an employee health plan for Plaintiffs’ employees.
4. Plaintiffs rely on the more detailed reasons for granting this motion that are set forth in the attached statement of points of law and authority and exhibits, which show (1) that Plaintiffs are likely to succeed on the merits of their RFRA claim; (2) that Plaintiffs are likely to suffer irreparable harm in the absence of preliminary injunctive relief; (3) that the balance of equities tips in Plaintiffs favor because the harm Plaintiffs would suffer without an injunction outweighs any harm Defendants would suffer if the injunction were granted; and (4) that it is in the public’s interest for an injunction to be entered in favor of Plaintiffs.
5. A bond should not be imposed on Plaintiffs since there is no demonstrable harm, monetary or otherwise, to Defendants if the wrongful acts complained of herein are enjoined. The imposition of a bond, moreover, would further harm Plaintiffs’ rights by causing them to have to pay to assert and defend those rights.
6. On February 7, 2013, Plaintiffs’ counsel, Edward White, conferred with Defendants’ counsel, Benjamin Berwick, by telephone regarding this motion. The motion will be opposed by Defendants.
3

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 4 of 39
7. Each Defendant, along with the United States Attorney for the District of Columbia and the United States Attorney General, has been served with a summons and with a copy of the complaint. (Docs. 7-10, 13-15, 20.) Each of them will be served with a copy of this motion and supporting papers as noted in the certificate of service. Plaintiffs’ counsel, per an agreement with Defendants’ counsel, Benjamin Berwick, will serve him with a copy of this motion and supporting papers by electronic mail as noted in the certificate of service.
8. A proposed order accompanies this motion. Accordingly, for the above-stated reasons and those set forth in the supporting statement of points of law and authority and exhibits, Plaintiffs request that this Court grant this motion and enter a preliminary injunction in Plaintiffs’ favor prohibiting Defendants, their officers, agents, servants, successors in office, employees, attorneys, and those acting in concert or participation with them, and including any insurance carriers or third party insurance plan administrators with whom Plaintiffs may contract for group health benefits, from applying and enforcing against Plaintiffs any statutes, rules, laws, or regulations that require Plaintiffs to include in their employee health benefit plan any coverage of all Food and Drug Administration (“FDA”)approved contraceptives methods, sterilization procedures, and related patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4), (“the Mandate”), as well as any penalties, fines, assessments, or enforcement actions for noncompliance, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d, and also prohibiting Defendants, their officers, agents, servants, employees, successors in office, attorneys and those acting in active concert or participation with them from applying and enforcing the Mandate against any insurance carriers or third party plan administrators with
4

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 5 of 39

whom Plaintiffs may seek to contract with respect to the provision or administration of an employee health plan for Plaintiffs’ employees.
Respectfully submitted on this 8th day of February, 2013,

/s/ Edward L. White III Edward L. White III (adm. phv) American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Tel. 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
Francis J. Manion (adm. phv) Geoffrey R. Surtees (adm. phv) American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 Tel. 502-549-7020; Fax. 502-549-5252 fmanion@aclj.org gsurtees@aclj.org

/s/ Colby M. May Colby M. May D.C. Bar No. 394340 American Center for Law & Justice 201 Maryland Avenue, N.E. Washington, D.C. 20002 Tel. 202-546-8890; Fax. 202-546-9309 cmmay@aclj-dc.org
Erik M. Zimmerman (adm. phv) American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 Tel. 757-226-2489; Fax. 757-226-2836 ezimmerman@aclj.org

5

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 6 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRANCIS A. GILARDI, JR.; PHILIP M. GILARDI; FRESH UNLIMITED, INC., d/b/a Freshway Foods; and FRESHWAY LOGISTICS, INC.,
Plaintiffs,

v.

Civil Action No. 1:13-cv-104-RBW

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF THE TREASURY; NEAL WOLIN, in his official capacity as the Acting Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF LABOR; and SETH D. HARRIS, in his official capacity as the Acting Secretary of the United States Department of Labor,
Defendants. _______________________________________/

PLAINTIFFS’ STATEMENT OF POINTS OF LAW AND AUTHORITY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 7 of 39
TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................3
I. The Mandate, Its Exceptions, and Its Penalties.....................................................................3 II. The Plaintiffs .........................................................................................................................5 ARGUMENT .................................................................................................................................10 I. Plaintiffs Satisfy the Standard for Obtaining Preliminary Injunctive Relief.......................10
A. Plaintiffs are likely to succeed on the merits of their RFRA claim................................11 1. The Mandate substantially burdens Plaintiffs’ exercise of religion..........................11 2. RFRA imposes strict scrutiny on Defendants. ..........................................................17 a. Defendants cannot demonstrate that applying the Mandate to Plaintiffs furthers a compelling governmental interest. ......................................18 b. The Mandate is not the least restrictive means of achieving a compelling governmental interest.......................................................................21
B. Plaintiffs will Suffer Irreparable Harm Absent an Injunction.......................................22 C. The Balance of Equities Tips in Plaintiffs’ Favor. ........................................................23 D. The Public Interest Favors a Preliminary Injunction.....................................................23 II. No Bond Should be Imposed on Plaintiffs.........................................................................24 CONCLUSION ..............................................................................................................................25 CERTIFICATE OF SERVICE ......................................................................................................26 INDEX OF EXHIBITS Exhibit A: Declaration of Francis A. Gilardi, Jr. along with Exhibits A-1 and A-2. Exhibit B: Declaration of Philip M. Gilardi. Exhibit C: Triune Health Grp. v. U.S. Dep’t of Health & Human Servs.,
No.1:12-cv-06756, slip op. (N.D. Ill. Jan. 3, 2013).
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Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 8 of 39

TABLE OF AUTHORITIES

CASES

Page(s)

* Am. Pulverizer v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012) .............................................. 2, 19-20

Anderson v. Celebrezze, 460 U.S. 780 (1983).....................................................................................................................21

Annex Med., Inc. v. Sebelius, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) ....................................................................2

Ardire v. Tax Comm’r, 77 Ohio St. 3d 409, 674 N.E.2d 1155 (1997) ..............................................................................14

Autocam Corp. v. Sebelius, 2012 U.S. App. LEXIS 26736 (6th Cir. Dec. 28, 2012) ................................................................3

Autocam Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 184093 (W.D. Mich. Dec. 24, 2012) .......................................................3

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .................................................................................................................18

CAIR v. Gaubatz, 667 F. Supp. 2d 67 (D.D.C. 2009) ...............................................................................................24

* Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)......................................................................................................... 17, 19-20

Citizens United v. FEC, 130 S. Ct. 876 (2010) ...................................................................................................................11

City of Boerne v. Flores, 521 U.S. 507 (1997).....................................................................................................................17

Conestoga Wood Specialities Corp. v. Sebelius, 2013 U.S. App. LEXIS 2706 (3d Cir. Feb. 7, 2013) .....................................................................3

Conestoga Wood Specialties Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 4449 (E.D. Pa. Jan. 11, 2013) ..................................................................3

Consarc Corp. & Consarc Eng’g v. U.S. Treasury Dep’t, 71 F.3d 909 (D.C. Cir. 1997) .......................................................................................................23

ii

Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 9 of 39
Consol. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530 (1980).....................................................................................................................18
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ...................................................................................................10
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .......................................................................................................11
Elrod v. Burns, 427 U.S. 347 (1976).....................................................................................................................22
* Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)......................................................................................................... 17-19, 20
Grote Indus., LLC v. Sebelius, 2013 U.S. App. LEXIS 2112 (7th Cir. Jan. 30, 2013) ...................................................................2
Hobby Lobby Stores v. Sebelius, 2012 U.S. LEXIS 9594 (Dec. 26, 2012) ........................................................................................3
Hobby Lobby Stores v. Sebelius, 2012 U.S. App. LEXIS 26741 (10th Cir. Dec. 20, 2012) ........................................................3, 13
Hobby Lobby Stores v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okla. Nov. 19, 2012) .......................................................3
* In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 20120 ............................................................................................10, 22
Joelner v. Vill. of Washington Park, 378 F.3d 613 (7th Cir. 2004) .......................................................................................................23
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)...........................................................................................................22
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................................................... 11-12
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .....................................................................................................22
* Korte v. U.S. Dep’t of Health & Human Servs., 2012 U.S. App. LEXIS 26734 (7th Cir. Dec. 28, 2012) ..........................................................2, 13
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Korte v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 177101 (S.D. Ill. Dec. 14, 2012)...................................................... 14-15
Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Oct. 31, 2012) ...................................................2, 24
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C.), aff’d sub nom. Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).......................................................................15
Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) .................................................................................................................11
Monaghan v. Sebelius, 2012 U.S. Dist. LEXIS 182857 (E.D. Mich. Dec. 30, 2012)...................................................2, 15
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).....................................................................................................................11
Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008) ..................................................................................................................11
* Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012), appeal docketed, No. 12-1380 (10th Cir. Sept. 26, 2012) ..................................... 2, 19, 21, 23-24
O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012.) ..............................................................2
Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012) ...........................................................2
* Sherbert v. Verner, 374 U.S. 398 (1963)...............................................................................................................12, 18
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) .....................................................................................................10
Simms v. Dist. of Columbia, 2012 U.S. Dist. LEXIS 93052 (D. D.C. July 6, 2012).................................................................24
* Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...............................................................................................11, 14
Tetlak v. Vill. of Bratenahl, 92 Ohio St. 3d 46, 748 N.E.2d 51 (2001) ....................................................................................14
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Case 1:13-cv-00104-EGS Document 21 Filed 02/08/13 Page 11 of 39
* Thomas v. Review Bd., 450 U.S. 707 (1981)......................................................................................................... 12-13, 22
Triune Health Grp. v. U.S. Dep’t of Health & Human Servs., No.1:12-cv-06756, slip op. (N.D. Ill. Jan. 3, 2013) .......................................................................2
* Tyndale House Publ’rs v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012), appeal docketed, No. 13-5018 (D.C. Cir. Jan. 18, 2013)................................................. 2, passim
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................................15
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000)............................................................................................................... 21-22
United States v. Robel, 389 U.S. 258 (1967).....................................................................................................................21
W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77 (D.D.C. 1994) ....................................................................................................22
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).........................................................................................................................10
* Wisconsin v. Yoder, 406 U.S. 205 (1972)................................................................................................... 12, 18-19, 20
STATUTES
Consolidated Appropriations Act: 2012, Pub. L. 112-74, § 808, 125 Stat. 786 (Dec. 23, 2011) ......................................................................................................16
1 U.S.C. § 1....................................................................................................................................11
26 U.S.C. § 1132..............................................................................................................................5
26 U.S.C. § 1185d............................................................................................................................5
26 U.S.C. § 4980D ...........................................................................................................................5
26 U.S.C. § 4980H ...........................................................................................................................5
26 U.S.C. § 4980H(c)(2)(A) ............................................................................................................5
42 U.S.C. § 300a-7(b) ....................................................................................................................16
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42 U.S.C. § 300gg-13(a)(4) .............................................................................................................3 42 U.S.C. § 1395w-22(j)(3) ...........................................................................................................16 * 42 U.S.C. § 2000bb-1(a) ................................................................................................................11 * 42 U.S.C. § 2000bb-1(b)..........................................................................................................11, 22 * 42 U.S.C. § 2000bb-2(4)................................................................................................................11 42 U.S.C. § 2000cc-5(7)(A)...........................................................................................................11 * 42 U.S.C. § 18011............................................................................................................................4 42 U.S.C. § 18023..........................................................................................................................16 REGULATIONS 26 C.F.R. § 54.9815-1251T .............................................................................................................4 29 C.F.R. § 2590.715-1251..............................................................................................................4 45 C.F.R. § 147.130 .........................................................................................................................4 45 C.F.R. § 147.130(a)(1)(iv) ..........................................................................................................4 45 C.F.R. § 147.130(a)(1)(iv)(B).....................................................................................................5 * 45 C.F.R. § 147.140 .........................................................................................................................4 75 Fed. Reg. 34538 ...................................................................................................................... 4-5 75 Fed. Reg. 41726 ....................................................................................................................5, 19 76 Fed. Reg. 46621 ....................................................................................................................4, 17 77 Fed. Reg. 8725 ................................................................................................................4, 17, 18 77 Fed. Reg. 16501 ....................................................................................................................5, 17 78 Fed. Reg. 8456 ......................................................................................................................5, 17 RULES * Fed. R. Civ. P. 65 ...........................................................................................................................10
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Fed. R. Civ. P. 65(c) ......................................................................................................................24 LCvR 65.1.1...................................................................................................................................24 OTHER AUTHORITIES Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf ...................................................................5 Cong. Research Serv., RL 7-5700, Private Health Insurance Provisions in PPACA (May 4, 2012).............................................................................................4 Dep’t of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources/files/ prev-services-guidance-08152012.pdf ...........................................................................................5 Food and Drug Administration, Office of Women’s Health, Birth Control Guide, http://www.fda.gov/downloads/forconsumers/byaudience/forwomen/ freepublications/ucm282014.pdf ...................................................................................................4 Health Res. & Servs. Admin., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ ...........................................4 HHS Mandate Information Central, http://www.becketfund.org/hhsinformationcentral/...............2 * indicates the cases and authorities on which counsel chiefly relies. LCvR 7(a).
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INTRODUCTION Defendants have promulgated regulations that require certain employers to include coverage in their employee health benefit plans for contraceptives, including abortion-inducing drugs, sterilization, and related patient counseling and education (“the Mandate”). Not complying with the Mandate subjects an employer to significant annual fines and penalties. Plaintiffs—two Catholic individuals and two corporations that they own—seek a preliminary injunction that would prevent enforcement of the Mandate against them so they can continue to run their businesses consistent with their Catholic values and beliefs, which deem the use or subsidization of contraceptives, abortion, and sterilization gravely immoral. Pursuant to their religious beliefs and moral values, for about the last ten years Plaintiffs have specifically excluded from their employee health benefit plan any coverage for contraceptives, abortion, and sterilization, but the Mandate will require Plaintiffs to start providing coverage for these services, contrary to their religious beliefs and moral values, as of April 1, 2013, the renewal date of their employee health plan. Absent injunctive relief, Plaintiffs will face a stark choice that substantially burdens their religious exercise: abandon their beliefs to stay in business, or abandon their business to stay true to their beliefs. That is a choice no government actor bound by the Religious Freedom Restoration Act (“RFRA”) may lawfully impose upon them. This is especially true because Defendants have decided not to impose this same choice upon thousands of other employers (regardless of whether they share Plaintiffs’ religious beliefs), leaving millions of employees and their families not covered by the requirements of the Mandate. This intentional, massive underinclusiveness illustrates that Defendants cannot meet their burden of proving that applying the Mandate to Plaintiffs is the least restrictive means of achieving a compelling interest.
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There are currently more than forty federal lawsuits, including the instant action, challenging the Mandate that have been brought by both for-profit and non-profit employers. See HHS Mandate Information Central, http://www.becketfund.org/hhsinformationcentral/ (last visited Feb. 8, 2013). At present, for-profit plaintiffs are protected by injunctions preventing application of the Mandate to them in eleven cases, including in Tyndale House Publ’rs v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012), appeal docketed, No. 13-5018 (D.C. Cir. Jan. 18, 2013), while injunctive relief has been denied in three cases.
For-profit plaintiffs have received injunctive relief in the following eleven cases: Annex Med., Inc. v. Sebelius, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) (granting injunction pending appeal); Grote v. Sebelius, 2013 U.S. App. LEXIS 2112 (7th Cir. Jan. 30, 2013) (same); Korte v. U.S. Dep’t of Health & Human Servs., 2012 U.S. App. LEXIS 26734 (7th Cir. Dec. 28, 2012) (same); O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (same); Triune Health Grp. v. U.S. Dep’t of Health & Human Servs., No. 1:12-cv-06756, slip op. (N.D. Ill. Jan. 3, 2013) (granting preliminary injunction) (Ex. C); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012) (same); Tyndale House Publ’rs v. Sebelius, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012) (same); Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Oct. 31, 2012) (same); Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012) (same), appeal docketed, No. 12-1380 (10th Cir. Sept. 26, 2012); see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012) (granting temporary restraining order); Monaghan v. Sebelius, 2012 U.S. Dist. LEXIS 182857 (E.D. Mich. Dec. 30, 2012) (same).
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For-profit plaintiffs have been denied injunctive relief in the following three cases: Hobby Lobby Stores v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okla. Nov. 19, 2012) (denying preliminary injunction), appeal docketed, 2012 U.S. App. LEXIS 26741 (10th Cir. Dec. 20, 2012) (denying injunction pending appeal), and 2012 U.S. LEXIS 9594 (Dec. 26, 2012) (Sotomayor, J., in chambers) (same); Autocam Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 184093 (W.D. Mich. Dec. 24, 2012) (denying preliminary injunction), appeal docketed, 2012 U.S. App. LEXIS 26736 (6th Cir. Dec. 28, 2012) (denying injunction pending appeal); Conestoga Wood Specialities Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 4449 (E.D. Pa. Jan. 11, 2013) (denying preliminary injunction after granting temporary restraining order), appeal docketed, 2013 U.S. App. LEXIS 2706 (3d Cir. Feb. 7, 2013) (denying injunction pending appeal).
Without injunctive relief, Plaintiffs will be forced to decide whether to act contrary to the teachings of their faith by directly subsidizing products and services they believe are immoral or start incurring annual penalties in excess of $14 million. Plaintiffs, therefore, request the grant of a preliminary injunction for the same reasons that for-profit employers have received injunctions against the Mandate’s enforcement in eleven cases, including Tyndale House Publishers.
FACTUAL BACKGROUND I. The Mandate, Its Exceptions, and Its Penalties
The Patient Protection and Affordable Care Act (“Affordable Care Act”) requires nonexempt group health plans to provide coverage for preventative care and screening for women without cost-sharing in accordance with guidelines created by the Health Resources and Services Administration. 42 U.S.C. § 300gg-13(a)(4). These guidelines include, among other things, “[a]ll Food and Drug Administration [“FDA”] approved contraceptive methods, sterilization
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procedures, and patient education and counseling for women with reproductive capacity.1/ FDAapproved contraceptive methods include emergency contraception (such as “Plan B” and “Ella”), diaphragms, oral contraceptive pills, and intrauterine devices.2/ In February 2012, Defendants finalized an interim rule requiring all group health plans to provide coverage for all FDAapproved contraceptive methods and sterilization procedures as well as patient education and counseling about those services. 45 C.F.R. § 147.130; 77 Fed. Reg. 8725, 8729; 76 Fed. Reg. 46621, 46623. The Mandate applies to all non-exempt employers once their group health plans are renewed on or after August 1, 2012; as discussed herein, non-compliance will lead to significant annual penalties. 45 C.F.R. § 147.130(a)(1)(iv); 77 Fed. Reg. 8725.
Although the Mandate applies to Plaintiffs and their approximately 395 employees (about 340 work for Freshway Foods and about fifty-five work for Freshway Logistics), Defendants have exempted many employers from the Mandate. For example, grandfathered health plans, that is, plans in existence on March 23, 2010, that have not undergone any of a defined set of changes, are exempt from compliance with the Mandate. See 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. The government describes the rules for grandfathered health plans as preserving a “right to maintain existing coverage.” 42 U.S.C. § 18011; 45 C.F.R. § 147.140; 75 Fed. Reg. 34538, 34562, 34566.3/
1/ Health Res. & Servs. Admin., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited Feb. 8, 2013).
2/ Food and Drug Administration, Office of Women’s Health, Birth Control Guide, http://www.fda.gov/downloads/forconsumers/byaudience/forwomen/freepublications/ucm2820 14.pdf (last visited Feb. 8, 2013).
3/ According to the Congressional Research Service, “[e]xisting plans may continue to offer coverage as grandfathered plans in the individual and group markets. . . . Enrollees could continue and renew enrollment in a grandfathered plan indefinitely.” Cong. Research Serv., RL 7-5700, Private Health Insurance Provisions in PPACA (May 4, 2012) (emphasis added).
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Defendant HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726, 41732. On the other hand, many provisions of the Affordable Care Act do apply to grandfathered plans.4/ “Religious employers” are also exempt from the Mandate. 45 C.F.R. § 147.130(a)(1)(iv)(B); 78 Fed. Reg. 8456, 8461-62. And, a temporary enforcement safe harbor is currently in place for non-profit entities that satisfy certain criteria. 77 Fed. Reg. 16501, 16503; 78 Fed. Reg. at 8459-59; see Dep’t of Health & Human Servs., Guidance on the Temporary Enforcement Safe Harbor, http://cciio.cms.gov/resources/ files/prev-services-guidance-08152012.pdf (last visited Feb. 8, 2013).
In addition, employers with fewer than fifty full-time employees have no obligation to provide employee health insurance under the Affordable Care Act and can bypass the Mandate by not providing any group health plan. 26 U.S.C. § 4980H(c)(2)(A).
A non-exempt employer that provides health insurance that does not comply with the Mandate faces penalties of $100 per day for each employee not properly covered, 26 U.S.C. § 4980D, as well as potential enforcement lawsuits, 26 U.S.C. §§ 1132, 1185d. Moreover, nonexempt employers with fifty or more full-time employees that fail to provide any employee health insurance plan are subject to annual penalties of $2,000 for each full-time employee, not counting thirty of them. 26 U.S.C. § 4980H. II. The Plaintiffs
Plaintiffs Francis A. Gilardi, Jr. and Philip M. Gilardi are the sole owners of Plaintiffs Fresh Unlimited, Inc., d/b/a Freshway Foods (“Freshway Foods”), and Freshway Logistics, Inc. (“Freshway Logistics”). They each hold a 50% ownership stake in Freshway Foods and
4/ 75 Fed. Reg. 34538, 34542; Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/ grandfatherregtable.pdf (last visited Feb. 8, 2013).
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Freshway Logistics and, therefore, together own the full and controlling interest in both corporations. (Ex. A, F. Gilardi Decl. at ¶ 1; Ex. B, P. Gilardi Decl. at ¶ 1.) Francis Gilardi is the Chief Executive Officer and Treasurer of Freshway Foods and Freshway Logistics and Philip Gilardi is the President and Secretary. They are the only Directors of the two corporations, and together they set the policies governing the conduct of all phases of the two corporations. (Ex. A, F. Gilardi Decl. at ¶ 2; Ex. B, P. Gilardi Decl. at ¶ 2.)
Freshway Foods is a closely-held and family owned fresh produce processor and packer serving twenty-three states for over twenty-four years. It has approximately 340 full-time employees. Freshway Logistics is a closely-held and family owned for-hire carrier of mainly refrigerated products serving twenty-three states since 2003. It has approximately fifty-five fulltime employees. They are both Subchapter S corporations and are incorporated, and based, in the State of Ohio. (Ex. A, F. Gilardi Decl. at ¶¶ 3-4; Ex. B, P. Gilardi Decl. at ¶¶ 3-4.)
Francis and Philip Gilardi hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. They sincerely believe that actions intended to terminate an innocent human life by abortion are gravely sinful. They also sincerely hold to the Catholic Church’s teaching regarding the immorality of artificial means of contraception and sterilization. They manage and operate Freshway Foods and Freshway Logistics in a way that reflects the teachings, mission, and values of their Catholic faith, and they desire to continue to do so. (Ex. A, F. Gilardi Decl. at ¶¶ 5-6; Ex. B, P. Gilardi Decl. at ¶¶ 5-6.)
Examples of how Plaintiffs further their religious beliefs and moral values include the following:
• For approximately the last ten years, Francis and Philip Gilardi have directed that a sign be affixed to the back of the trucks they own, through a separate company, but which
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bear the name of Freshway Foods, stating “It’s not a choice, it’s a child,” as a way to promote their pro-life views to the public. (Ex. A, F. Gilardi Decl. at ¶ 7; Ex. A-1; Ex. B, P. Gilardi Decl. at ¶ 7); • Francis and Philip Gilardi strongly support their Catholic parish, schools, and seminary financially and otherwise. (Ex. A, F. Gilardi Decl. at ¶ 7; Ex. B, P. Gilardi Decl. at ¶ 7); • In or about 2004, Francis and Philip Gilardi drafted a statement listing values by which all their companies would be run. They listed “Ethics” first since that is their primary business value: “Ethics: Honest, Trustworthy and Responsible to: - Each Other; - Our Customers; - Our Vendors. Non-negotiable - Supersedes everything.” (Id.); • At the direction of Francis and Philip Gilardi, Freshway Foods makes annual monetary and/or in-kind donations, primarily food, to many community non-profit charitable organizations, including Agape, Compassionate Care, the YMCA, Holy Angel’s Soup Kitchen, United Way, Habitat for Humanity, American Legion, Bill McMillian’s Needy Children, Elizabeth’s New Life Center, and local schools. (Id.); • At the direction of Francis and Philip Gilardi, Freshway Logistics donates a trailer for use by the local Catholic parish for the annual parish picnic and uses its trucks to deliver the food donated by Freshway Foods to food banks outside the Sidney, Ohio, area. (Id.); • At the direction of Francis and Philip Gilardi, during Plaintiffs’ Monthly Associate Appreciation Lunches, Plaintiffs provide their employees with alternative foods to accommodate their religious dietary requirements. (Id.); and • At the direction of Francis and Philip Gilardi, Freshway Foods and Freshway Logistics provide their Muslim employees with space to pray during breaks and lunches, and Plaintiffs adjust break periods during Ramadan to allow their Muslim employees,
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pursuant to their religion, to eat after sundown. (Id.) Moreover, Freshway Foods and Freshway Logistics provide their full-time employees with a self-insured health plan that provides health insurance and prescription drug insurance through a third-party administrator and stop loss provider. Employees of the two corporations may choose a basic option or a premier option from the plan. The plan is renewed on April 1. For approximately the last ten years, at the direction of Francis and Philip Gilardi, Plaintiffs’ have specifically excluded coverage of all contraceptives, abortion, and sterilization in their employee health plan, because paying for such services as a part of a health plan would violate their sincerely-held religious beliefs and moral values. (Ex. A, F. Gilardi Decl. at ¶¶ 8-9; Ex. A-2 at pp. 1-5; Ex. B, P. Gilardi Decl. at ¶¶ 8-9.) Francis and Philip Gilardi consider the provision of employee health insurance to be an integral component of furthering the mission and values of their corporations and of their religious beliefs and moral values. Their sincerely-held religious beliefs and moral values do not allow them to direct, or allow, Freshway Foods and Freshway Logistics to arrange for, pay for, provide, or otherwise facilitate employee health plan coverage for contraceptives, including abortion-inducing drugs, sterilization, abortion, or related education and counseling. (Ex. A, F. Gilardi Decl. at ¶¶ 10-11; Ex. B, P. Gilardi Decl. at ¶¶ 10-11.) Freshway Foods and Freshway Logistics are not exempted from the Mandate. They each employ more than fifty full-time employees. They are not “religious employers,” as that term is defined by the Mandate. They do not fall within any “temporary enforcement safe harbor” provided by Defendants to certain non-profit entities, and their employee health plan is not “grandfathered.” (Ex. A, F. Gilardi Decl. at ¶¶ 12-13; Ex. B, P. Gilardi Decl. at ¶¶ 12-13.) To operate and manage Freshway Foods and Freshway Logistics consistent with their
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Catholic faith and values, Francis and Philip Gilardi want to continue to be able to provide high quality health insurance for their full-time employees that excludes coverage for things they believe are morally wrong for them and their corporations to arrange for, pay for, provide, facilitate, or otherwise support. (Ex. A, F. Gilardi Decl. at ¶ 14; Ex. B, P. Gilardi Decl. at ¶ 14.)
Absent injunctive relief, however, by April 1, 2013, which is the renewal date for the employee health benefit plan, the Mandate will require Francis and Philip Gilardi to direct Freshway Foods and Freshway Logistics contrary to their religious beliefs and moral values, to arrange for, pay for, provide, facilitate, or otherwise support a health plan that includes contraceptives, including abortion-inducing drugs, sterilization, and related patient education and counseling. (Ex. A, F. Gilardi Decl. at ¶¶ 15, 18-19; Ex. B, P. Gilardi Decl. at ¶¶ 15, 18-19.)
If Freshway Foods and Freshway Logistics fail to comply with the Mandate, or drop employee group health coverage entirely, then they would likely incur significant annual penalties payable to the federal government that would have a crippling impact on their ability to survive economically and, by extension, would greatly harm Francis and Philip Gilardi financially. Also, dropping the employee health plan altogether would have a severe impact on Plaintiffs’ ability to compete with other companies that offer health coverage and would also harm their employees who would have to find expensive individual policies in the private marketplace. (Ex. A, F. Gilardi Decl. at ¶¶ 16-17; Ex. B, P. Gilardi Decl. at ¶¶ 16-17.)
The Mandate requires Plaintiffs to choose between (a) complying with the Mandate and violating their religious beliefs and moral values and (b) not complying with the Mandate and paying annual penalties in order to conduct business consistent with their religious beliefs and moral values. The Mandate prevents Francis and Philip Gilardi from following the dictates of their Catholic faith in the operation and management of Freshway Foods and Freshway
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Logistics, and the Mandate violates the religious-based principles by which Freshway Foods and Freshway Logistics are run. Plaintiffs, therefore, request injunctive relief from this Court before April 1, 2013. (Ex. A, F. Gilardi Decl. at ¶¶ 18-19; Ex. B, P. Gilardi Decl. at ¶¶ 18-19.)
ARGUMENT The Mandate substantially burdens Plaintiffs’ religious exercise because, absent injunctive relief, the Mandate will require Plaintiffs to take actions that they believe are immoral—paying for and providing coverage of morally objectionable goods and services—on a continuing basis beginning on April 1, 2013; otherwise, they will incur substantial annual penalties for adhering to their religious and moral principles. Defendants cannot meet their burden of proving that the Mandate is the least restrictive means of achieving a compelling government interest and, as such, applying the Mandate to Plaintiffs violates their rights under RFRA. I. Plaintiffs Satisfy the Standard for Obtaining Preliminary Injunctive Relief. A plaintiff seeking a preliminary injunction under Fed. R. Civ. P. 65 “‘must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’” In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (quoting Winter v. Natural Resources Def. Council, 555 U.S. 7, 20 (2008)); accord Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). As demonstrated herein, Plaintiffs make a strong showing on each of the four factors, and this Court should grant their motion for a preliminary injunction.5/
5/ Historically, the D.C. Circuit has applied a “sliding scale” approach in evaluating the four preliminary injunction factors: “if the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). Recently, some D.C. Circuit judges have suggested, but have not decided, that the “sliding scale” approach should no longer be applied. See Sherley, 644 F.3d at 392-93. Whether or not this Court applies the “sliding
(Text of footnote continues on following page.)
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A. Plaintiffs are likely to succeed on the merits of their RFRA claim.
Under RFRA, the “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1(a).
RFRA defines religious exercise broadly to “include[] any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4), as amended
by 42 U.S.C. § 2000cc-5(7)(A). The only time the federal government may substantially burden
a person’s exercise of religion is if “it demonstrates that application of the burden to the person
(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b) (emphasis added).
By broadly protecting any religious exercise of “a person,” not just the exercise of a religious
person, RFRA protects the free exercise of all individuals, churches, non-profit organizations, companies, and other organizations that are considered “persons” under the law.6/
1. The Mandate substantially burdens Plaintiffs’ exercise of religion.
Under RFRA, Plaintiffs must show that a federal regulation or action substantially burdens
their sincerely held religious beliefs. See, e.g., Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C.
Cir. 2008). A law substantially burdens religious exercise when a person, whether an individual
scale,” Plaintiffs are entitled to a grant of a preliminary injunction because they make a sufficiently strong showing on each of the four factors.
6/ RFRA does not define the term “person.” Under accepted law, the term “person” includes a natural person and a corporation. See Dictionary Act, 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise. . . ‘person’ . . . include[s] corporations . . . as well as individuals.”); Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1707 (2012) (noting that the term “person” often includes organizations); Citizens United v. FEC, 130 S. Ct. 876, 899 (2010) (noting that corporations are legal persons that enjoy free speech rights); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 687 (1978) (“[B]y 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.”). Moreover, corporations may assert their own free exercise rights and/or the free exercise rights of their owners or employees. E.g., Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988); Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008).
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or corporation, must choose between (1) doing something their faith forbids or discourages (or not doing something their faith requires or encourages), and (2) incurring financial penalties, the loss of a government benefit, criminal prosecution, or other significant harm. A substantial burden is present when the government puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981); accord Kaemmerling, 553 F.3d at 678.
For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that a state’s denial of unemployment benefits to a Seventh-Day Adventist employee, whose religious beliefs prohibited her from working on Saturdays, substantially burdened her exercise of religion. The regulation “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. Also, in Thomas, the Court held that a state’s denial of unemployment benefits to a Jehovah’s Witness employee, whose religious beliefs prohibited him from participating in the production of armaments, substantially burdened his religious beliefs. “[T]he employee was put to a choice between fidelity to religious belief or cessation of work,” 450 U.S. at 717, and the Court noted that, “[w]hile the compulsion [of the denial of benefits] may be indirect, the infringement upon free exercise is nonetheless substantial.” Id. at 718. In addition, in Wisconsin v. Yoder, 406 U.S. 205, 208, 219 (1972), the Court held that a state compulsory school-attendance law substantially burdened the religious exercise of Amish parents who were fined five dollars after refusing to send their children to high school. The Court found the burden “not only severe, but inescapable,” requiring the parents “to perform acts undeniably at odds with fundamental tenets of their religious belief.” Id. at 218.
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Plaintiffs face a similar inescapable choice. Under the Mandate, they must facilitate, subsidize, and encourage the use of goods and services that they sincerely believe are immoral or suffer severe penalties. It is this forced subsidization, and not the manner in which employees may spend their own money or conduct their personal lives, to which Plaintiffs object. In recently granting an injunction preventing enforcement of the Mandate on appeal, the United States Court of Appeals for the Seventh Circuit correctly stated in Korte:
The government also argues that any burden on religious exercise is minimal and attenuated, relying on a recent decision by the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, No. 12‐6294 [2012 U.S. App. LEXIS 26741] (10th Cir. Dec. 20, 2012). . . . [T]he Tenth Circuit denied an injunction pending appeal, noting that “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s’] religion.” Id. at 7. With respect, we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services. 2012 U.S. App. LEXIS 26734, at *8-9 (citation omitted) (emphasis in original). Similarly, in Tyndale House Publishers, this Court wrote that “[b]ecause it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as ‘indirect,’ the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.” 2012 U.S. Dist. LEXIS 163965, at *44 (quoting Thomas, 450 U.S. at 718); see also id. at *38 (“[T]he contraceptive coverage mandate affirmatively compels the plaintiffs to violate their religious beliefs in order to comply with the law and avoid the sanctions that would be imposed for their noncompliance. Indeed, the pressure on the plaintiffs to violate their religious beliefs is ‘unmistakable.’”).
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The substantial burden that the Mandate imposes on Freshway Foods and Freshway Logistics is the same as the substantial burden imposed on Francis and Philip Gilardi. Freshway Foods and Freshway Logistics are closely-held, family-owned corporations governed by Francis and Philip Gilardi, and the beliefs of the Gilardis extend to, and are reflected in, the actions of the two corporations.7/ The Gilardis wish to continue to run their family businesses based on the tenets of their sincerely-held Catholic faith. A corporation does not think, act, and establish business values and practices except through human agency. It is the human agency of the corporation that defines the purposes of the corporation, gives it its character, and gives shape to its ethos— in addition to shaping and fulfilling the business’s commercial mission.
For purposes of substantial burden analysis, requiring the two corporations to provide group health coverage that the Gilardis consider immoral is the same as requiring the Gilardis themselves to provide such immoral coverage. Ultimately, it is Francis and Philip Gilardi who face, and have to make, the difficult decision, absent relief from this Court: either direct their two corporations to comply with the Mandate, in violation of their religious beliefs, or incur more than $14 million in annual penalties that will cripple their two corporations.8/ See Stormans, 586 F.3d at 1120 (explaining that a family-owned corporation’s beliefs were an extension of the family’s beliefs such that the corporation did not “present any free exercise rights of its own different from or greater than its owners’ rights”); Korte v. U.S. Dep’t of Health & Human
7/ Freshway Foods and Freshway Logistics are Subchapter S corporations, incorporated under Ohio law. “The taxable income of an S corporation is computed essentially as if the corporation were an individual. Items of income, loss, deduction, and credit are then passed through to the shareholders on a pro rata basis and are added to or subtracted from each shareholder’s gross income.” Ardire v. Tax Comm’r, 77 Ohio St. 3d 409, 674 N.E.2d 1155 n.1 (1997) (citing 26 U.S.C. §§ 1363, 1366); accord Tetlak v. Vill. of Bratenahl, 92 Ohio St. 3d 46, 49, 748 N.E.2d 51, 54 (2001).
8/ The two corporations have a total of about 395 employees. A daily penalty of $100 per employee amounts to $39,500 per day and over $14 million per year.
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Servs., 2012 U.S. Dist. LEXIS 177101, at *17 (S.D. Ill. Dec. 14, 2012) (explaining that “[b]ecause K&L is a family-owned S corporation, the religious and financial interests of the Kortes are virtually indistinguishable”); Monaghan, 2012 U.S. Dist. LEXIS 182857, at *9 (noting that a corporation cannot “act (or sin) on its own” and that a court should not dispute an owner’s assertion that the Mandate’s requirement that he direct his company to provide the required immoral coverage will cause him to commit a “grave sin”).
Of course, the protections afforded by RFRA do not give a business, run consistent with its owner’s religious principles, the unbounded right to ignore anti-discrimination laws, or, for that matter, refuse to pay payroll taxes, violate OSHA requirements, etc. Any such claims—assuming that a substantial burden was present—should be resolved based on whether the law or regulation at issue satisfies strict scrutiny as applied to the claimant, not on the grounds that the employer could never have its religious exercise substantially burdened. Under RFRA, a business operated with religious values may challenge a law that substantially burdens its religious exercise: a kosher deli may have a claim against a mandate that it sell pork, and a medical practice operated by pro-life doctors may have a claim against a mandate that it perform abortions. See United States v. Lee, 455 U.S. 252, 257 (1982) (holding that participation in the social security system substantially burdened the for-profit employer’s religious exercise before holding that the burden was justified in that case); Tyndale House Publ’rs, 2012 U.S. Dist. LEXIS 163965, at *31-33 n.13 (rejecting the government’s argument that allowing a for-profit corporation to assert a RFRA claim would undermine the enforcement of anti-discrimination laws, such as Title VII).9/
9/ This Court’s decision in Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C.), aff’d sub nom. Seven Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), is inapplicable, as this Court explained in Tyndale House Publ’rs., 2012 U.S. Dist. LEXIS 163965, at *45-48. Plaintiffs here, unlike the plaintiffs in Mead, have no alternative but to violate the Mandate and be subjected to severe
(Text of footnote continues on following page.)
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Plaintiffs’ objection to the requirements of the Mandate is not novel; federal law recognizes that many Americans have religious and moral objections to providing or paying for certain goods and services, such as contraceptives and abortion. For example, there are many federal laws that provide exemptions, in various contexts, for providers of health care, insurance, and prescription drug coverage as well as for other individuals and entities who do not want to provide, pay for, or cover by insurance certain goods and services to which they object on religious and moral grounds. See, e.g., Consolidated Appropriations Act: 2012, Pub. L. 112-74, § 808, 125 Stat. 786, Dec. 23, 2011 (requiring any D.C. regulation concerning the provision of contraceptive coverage to “include a ‘conscience clause’ which provides exceptions for religious beliefs and moral convictions”); id § 727 (exempting carriers of prescription drug coverage plans that object to the provision of contraceptive coverage “on the basis of religious beliefs” from a ban on the use of appropriated funds to provide prescription drug coverage that excludes contraceptives); 42 U.S.C. § 18023 (stating that health plans offered through an Exchange may not discriminate against health care providers or facilities due to their “unwillingness to provide, pay for, provide coverage of, or refer for abortions”).10/
With regard to the Mandate, Defendants have expressly acknowledged the burden it imposes upon the religious exercise of many. Recognizing that paying for, providing, or subsidizing contraceptive and sterilization services would conflict with “the religious beliefs of certain
financial penalties “and, therefore, the pressure to violate their religious beliefs remains undiminished.” Id. at *47.
10/ See also 42 U.S.C. § 300a-7(b) (stating that the government may not mandate that individuals or entities perform, assist in the performance of, or make their facilities available for the performance of, any abortion or sterilization procedure solely due to their receipt of federal funds if doing so would violate their religious or moral convictions); 42 U.S.C. § 1395w-22(j)(3) (providing an exemption for organizations offering a Medicare + Choice plan that object on moral or religious grounds to providing, reimbursing for, or providing coverage for a counseling or referral service).
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religious employers,” 77 Fed. Reg. 8725, 8726, Defendants have granted a wholesale exemption for a class of employers, including churches and their auxiliaries, from complying with the Mandate. 76 Fed. Reg. 46621, 46623; 78 Fed. Reg. 8456, 8462-64. In addition, the government has provided a temporary enforcement safe harbor for any employer, group health plan, or group health insurance issuer that fails to cover some or all recommended contraceptive services and that is sponsored by a non-profit organization that meets certain criteria. 77 Fed. Reg. 16501, 16503; 78 Fed. Reg. at 8458-59. This temporary safe harbor period runs until the first plan year beginning on or after August 1, 2013. Id.
Defendants have also recently proposed rules that will attempt to accommodate “eligible” non-profit religious organizations that oppose providing coverage for some or all of the contraceptive services required by the Mandate on account of their religious objections. 78 Fed. Reg. at 8461-62.
In sum, Plaintiffs have established that the Mandate substantially burdens their religious exercise. The burden now shifts to Defendants to satisfy the high demands of strict scrutiny, something Defendants are unable to do as will be explained in the next section of this brief.
2. RFRA imposes strict scrutiny on Defendants. RFRA requires application of the “strict scrutiny test.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). This test, which requires “the most rigorous of scrutiny,” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993), “is the most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). As noted above, the strict scrutiny test imposed by RFRA must be conducted “through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-
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31 (emphasis added). Indeed, in both Sherbert and Yoder, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431. It is therefore not enough for Defendants to describe a compelling interest in an abstract or categorical fashion; they must demonstrate that the interest “would be adversely affected by granting an exemption” to the religious claimant. Id. In this case, Defendants must demonstrate that exempting Plaintiffs and their approximately 395 full-time employees from the Mandate would jeopardize Defendants’ asserted interests even though Defendants have already willingly exempted thousands of other employers (who employ tens of millions of employees) from the Mandate.
a. Defendants cannot demonstrate that applying the Mandate to Plaintiffs furthers a compelling governmental interest.
Just two years ago, the Supreme Court described a compelling state interest as a “high degree of necessity,” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011), noting that “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of [the asserted right] must be actually necessary to the solution.” See id. at 2738 (citations omitted). The “[m]ere speculation of harm does not constitute a compelling state interest.” Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 543 (1980).
Here, Defendants have proffered two compelling governmental interests for the Mandate: health and gender equality. 77 Fed. Reg. 8725, 8279. Defendants’ invocation of the promotion of health and gender equality as compelling interests, without more, is insufficient to meet the demands of strict scrutiny. While recognizing “the general interest in promoting public health and safety,” the Supreme Court has held that “invocation of such general interests, standing alone, is not enough.” O Centro, 546 U.S. at 438. Defendants must demonstrate “some
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substantial threat to public safety, peace, or order,” or an equally compelling interest, that would be posed by exempting the claimant. See Yoder, 406 U.S. at 230. Also, “a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal quotation marks omitted).
What radically undermines Defendants’ claim that the Mandate is needed to address a compelling harm to its asserted interests is the massive number of employees, tens of millions in fact, whose employers are not subject to the Mandate and whose health and equality interests are completely unaffected by it. For example, Defendants cannot explain how these interests can be of the highest order when the Mandate does not apply to plans grandfathered under the Affordable Care Act. The court in Newland v. Sebelius found, based on government estimates, that “191 million Americans belong to plans which may be grandfathered under the [Affordable Care Act],” 2012 U.S. Dist. LEXIS 104835, at *4 (emphasis added), and the government has estimated that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726, 41732 (emphasis added).
This broad exemption leaves appreciable damage to the government’s asserted interests untouched and indicates the lack of any compelling need to apply the Mandate to Plaintiffs in violation of their consciences. See Newland, 2012 U.S. Dist. LEXIS 104835, at *23 (“[T]his massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.”); Tyndale House Publ’rs, 2012 U.S. Dist. LEXIS 163965, at *61 (“[C]onsidering the myriad of exemptions . . . the defendants have not shown a compelling interest in requiring the plaintiffs to provide the specific contraceptives to which they object.”); Am. Pulverizer, 2012 U.S. Dist. LEXIS 182307, at *14 (explaining that the significant
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exemptions to the Mandate “undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs”).
Indeed, Defendants’ alleged interests are further undermined by the fact that though grandfathered plans have a right to indefinitely ignore the Mandate, they must comply with other provisions of the Affordable Care Act. For example, Defendants’ decision to impose the Affordable Care Act’s prohibition on excessive waiting periods on grandfathered plans, but not the Mandate, indicates that the government itself does not believe that the Mandate is necessary to protect an interest of the highest order. See Lukumi, 508 U.S. at 547. Defendants, moreover, cannot explain how their asserted interests can be compelling when employers with fewer than fifty employees have no obligation to provide health insurance for their employees (and thus no obligation to directly subsidize contraception). Defendants cannot explain how there is a compelling need to coerce Plaintiffs into violating their religious beliefs and moral values when businesses with fewer than fifty employees can avoid the Mandate entirely by not providing a group health plan. See O Centro, 546 U.S. at 432-37 (granting relief under RFRA to a church to allow its approximately 130 members to use a Schedule I drug in their religious ceremonies because the government allowed hundreds of thousands of Native Americans to use a different Schedule I drug in their religious ceremonies).
Thus, Defendants cannot demonstrate a compelling need to require Plaintiffs to comply with the Mandate for their approximately 395 full-time employees when that same Mandate does not apply to the employers of tens of millions of employees nationwide. In short, Defendants cannot show a “substantial threat” to their asserted interests should Plaintiffs be exempted from the Mandate, Yoder, 406 U.S. at 230, and Defendants cannot satisfy their strict scrutiny burden.
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b. The Mandate is not the least restrictive means of achieving a compelling governmental interest.
The existence of a compelling interest in the abstract does not give Defendants carte blanche to promote that interest through any regulation of their choosing particularly where, as here, a fundamental right is substantially burdened. See, e.g., United States v. Robel, 389 U.S. 258, 263 (1967) (noting that compelling interests “cannot be invoked as a talismanic incantation to support any [law]”). If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).
Assuming arguendo that the interests proffered by Defendants were compelling in this context, the Mandate is not the least restrictive means of furthering those interests. Defendants could directly further their interest in providing free access to contraceptive services in a myriad of ways without violating Plaintiffs’ consciences. For example, the government could (1) offer tax deductions or credits for the purchase of contraceptive services; (2) provide these services to citizens itself; (3) allow citizens who pay to use contraceptives to submit receipts to the government for reimbursement; or (4) provide incentives for pharmaceutical companies that manufacture contraceptives to provide such products to pharmacies, doctor’s offices, and health clinics free of charge. See Newland, 2012 U.S. Dist. LEXIS 104835, at *26-27 (“‘[T]he government already provides free contraception to women.’. . . Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women.”). Even if the government claims these options would not be as effective as the Mandate, “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 824
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(2000). In fact, if a less restrictive alternative would serve the government’s purposes, “the legislature must use that alternative.” Id. at 813.
Accordingly, for the above-stated reasons, Plaintiffs are likely to succeed on the merits of their RFRA claim, see In re Navy Chaplaincy, 697 F.3d at 1178, because they have established that the Mandate places substantial pressure on them to modify their behavior and violate their religious beliefs, and Defendants cannot demonstrate that application of the Mandate to Plaintiffs is the least restrictive means to further a compelling governmental interest. See 42 U.S.C. § 2000bb-1(b); Thomas, 450 U.S. at 718.
B. Plaintiffs will Suffer Irreparable Harm Absent an Injunction. It is well settled that even the momentary loss of First Amendment freedoms constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373 (1976). The same is true regarding a violation of RFRA because it protects the same type of religious exercise as the First Amendment. See Tyndale House Publ’rs, 2012 U.S. Dist. LEXIS 163965, at *61-62; see also Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“[A] plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“Courts have persuasively found that irreparable harm accompanies a substantial burden on an individual’s rights to the free exercise of religion under RFRA.”); W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77, 79 (D.D.C. 1994) (granting a preliminary injunction against a zoning ordinance prohibiting a church’s feeding of the homeless based on likely violations of the First Amendment and RFRA). Thus, a preliminary injunction should be issued in favor of Plaintiffs. Absent an injunction, Plaintiffs’ rights will be violated on a continuing basis beginning on April 1, 2013, as discussed previously.
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C. The Balance of Equities Tips in Plaintiffs’ Favor. A grant of a preliminary injunction would preserve the status quo. The enactment and imminent enforcement of the Mandate against Plaintiffs created the present controversy between the parties. Before this controversy arose, Plaintiffs exercised a freedom to fashion a health plan in accordance with their religious beliefs and principles, which is what Plaintiffs have been doing for about the last ten years. See, e.g., Consarc Corp. & Consarc Eng’g v. U.S. Treasury Dep’t, 71 F.3d 909, 913 (D.C. Cir. 1997) (“Judicial precedent confirms that the status quo is the last uncontested status which preceded the pending controversy.”) (internal quotations marks and citations omitted). Moreover, a preliminary injunction preventing Defendants’ enforcement of the Mandate against Plaintiffs will not harm Defendants’ interests. This is especially true because, as discussed previously, Defendants already have exempted thousands of employers of millions of employees from the Mandate. See Newland, 2012 U.S. Dist. LEXIS 104835, at *14-15 (noting that the government’s asserted interests regarding the Mandate were undermined by the existence of numerous exemptions); see also Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (explaining that there is no legitimate governmental interest to be furthered by violating someone’s rights). Accordingly, the balance of the equities tips in Plaintiffs’ favor. D. The Public Interest Favors a Preliminary Injunction. As this Court explained in Tyndale House Publishers, Where, as here, the regulations at issue include exemptions and other provisions excluding a large number of people from the scope of the regulations, and the government has failed to show a compelling interest furthered by the enforcement of those regulations as to the plaintiffs in this case, the public has little interest in the ‘uniform application’ of the regulations. The public interest instead weighs in favor of the plaintiffs.
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2012 U.S. Dist. LEXIS 163965, at *66-67. Furthermore, the public has a strong interest in the preservation of religious freedom, as Congress recognized in enacting RFRA. See Newland, 2012 U.S. Dist. LEXIS 104835, at *14-15 (stating that the government’s asserted interests regarding the Mandate were “countered, and indeed outweighed, by the public interest in the free exercise of religion”); Legatus, 2012 U.S. Dist. LEXIS 156144, at *44 (“The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.”). Consequently, the public interest favors the grant of a preliminary injunction in favor of Plaintiffs. See Simms v. Dist. of Columbia, 2012 U.S. Dist. LEXIS 93052, at *43 (D.D.C. July 6, 2012) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”) (internal quotation marks and citations omitted).11/ II. No Bond Should be Imposed on Plaintiffs.
A bond requirement would further harm Plaintiffs by causing them to have to pay to assert and defend their rights. Also, enjoining the enforcement of the Mandate against Plaintiffs will impose no monetary requirements on Defendants. See Fed. R. Civ. P. 65(c); LCvR 65.1.1. Therefore, Plaintiffs request that this Court exercise its discretion and not impose a bond. See CAIR v. Gaubatz, 667 F. Supp. 2d 67, 81 (D.D.C. 2009) (exercising discretion under Rule 65(c) and imposing no bond).
11/ Granting Plaintiffs a preliminary injunction will not harm their employees. For about the last ten years, their employees have been covered by health insurance that has specifically excluded contraceptives, abortion, and sterilization. (Ex. A, F. Gilardi Decl. at ¶ 9; Ex. A-2 at pp. 1-5; Ex. B, P. Gilardi Decl. at ¶ 9.) In addition, allowing Plaintiffs to continue offering such insurance would place their employees in the same position as the millions of employees and their families covered by grandfathered plans or by plans otherwise exempt from the Mandate.
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CONCLUSION Federal courts have granted injunctive relief to for-profit employers in eleven cases, preventing application of the Mandate to them. Plaintiffs seek the same relief. Plaintiffs have made a sufficiently strong showing on each of the four preliminary injunction factors to obtain that relief. Accordingly, for the foregoing reasons, Plaintiffs respectfully request that this Court grant their motion for a preliminary injunction and allow them to continue to follow their religious beliefs and moral values when they renew their employee health plan on April 1, 2013. Respectfully submitted on this 8th day of February, 2013,

/s/ Edward L. White III Edward L. White III (adm. phv) American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Tel. 734-662-2984; Fax. 734-302-1758 ewhite@aclj.org
Francis J. Manion (adm. phv) Geoffrey R. Surtees (adm. phv) American Center for Law & Justice 6375 New Hope Road New Hope, Kentucky 40052 Tel. 502-549-7020; Fax. 502-549-5252 fmanion@aclj.org gsurtees@aclj.org

/s/ Colby M. May Colby M. May D.C. Bar No. 394340 American Center for Law & Justice 201 Maryland Avenue, N.E. Washington, D.C. 20002 Tel. 202-546-8890; Fax. 202-546-9309 cmmay@aclj-dc.org
Erik M. Zimmerman (adm. phv) American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 Tel. 757-226-2489; Fax. 757-226-2836 ezimmerman@aclj.org

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CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2013, I caused the foregoing motion, statement of points

of law and authority, exhibits, and proposed order to be electronically filed with the clerk of

court using the CM/ECF system, which will send notification of such filing to the counsel of

record for Plaintiffs, and I also caused to be sent by United States Mail, first-class postage

prepaid, true and correct copies of the above-referenced documents to each of the following non-

CM/ECF participants:

U.S. Department of Health & Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201 Defendant

U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. 20210 Defendant

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201 Defendant

Seth D. Harris, Acting Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210 Defendant

U.S. Department of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220 Defendant

Eric Holder, Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

Neal Wolin, Acting Secretary U.S. Department of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, D.C. 20220 Defendant

Civil-process clerk c/o Ronald C. Machen Jr. U.S. Attorney, District of Columbia 555 4th Street, N.W. Washington, D.C. 20530

Moreover, I certify that on February 8, 2013, I caused true and correct copies of the above-

referenced documents to be sent to Defendants’ counsel, Benjamin Berwick, by electronic mail

to the following address: Benjamin.L.Berwick@usdoj.gov.

/s/ Edward L. White III Edward L. White III (adm. phv) American Center for Law & Justice

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 Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA (WASHINGTON, DC)

FRANCIS A. GILARDI, et al., Plaintiff, v.
KATHLEEN G. SEBELIUS, et al., Defendant.

: : : Case No. 1:13-cv-00104-EGS : : Judge Emmet G. Sullivan : : : :

AMICUS BRIEF OF THE STATE OF OHIO IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Respectfully submitted,
MICHAEL DEWINE (OH-0009181) OHIO ATTORNEY GENERAL

/s/ Frederick D. Nelson FREDERICK D. NELSON (OH-0027977) Senior Advisor [A.G. designee per LCvR 83.2(f)] Ohio Attorney General’s Office 30 E. Broad St., 17th Floor Columbus, Ohio 43215 Tel: 614-728-4947 frederick.nelson@ohioattorneygeneral.gov
Counsel for Amicus Curiae State of Ohio

Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 2 of 33
TABLE OF CONTENTS Table of Authorities .................................................................................................. ii Amicus Interest of the State of Ohio..........................................................................1 Introduction And Framework ....................................................................................4 Argument....................................................................................................................8
I. The federal Mandate requiring Freshway to pr ovide insurance for contraception, sterilization, abortifacients and related products and services violates religious liberties protected by RFRA..................................................................8 A. The federal Mandate as appl ied here substantially burdens the free exercise of religion...........................................9 B. The federal government cannot show a compelling interest in applying this mandate to Freshway, as witness the widespread exemptions for oth er businesses, and there are less restrictive means by which the federal government may achieve its goals. .........................................................................................16 C. RFRA protections extend to “persons,” and the mandate is not immune from RFRA scrutiny as applied to Freshway’s for-profit family owned businesses operated in accordance with religious principles as permitted under organizing Ohio law..................19
Conclusion ...............................................................................................................26 Certificate Of Service...............................................................................................27
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TABLE OF AUTHORITIES

CASES

PAGE(S)

*American Pulverizer Co. v. U.S. Dep’t of HHS, 2012 U.S. Dist. Lexis 182307 (W.D. Mo. Dec. 20, 2012) ...........................10, 18

Annex Medical, Inc. et al. v. Sebelius, No. 13-1118, 2013 U.S. App. Lexis 2497 (8th Cir., Feb. 1, 2013) .......................9

Autocam Corp. v. Sebelius, 2012 U.S. Dist. Lexis 184093 (W.D. Mich., Dec. 24, 2012) ...............3, 7, 12, 14

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)............................................................................................20

Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876 (2010)...................................................................24

Conestoga Wood Specialties v. U.S. Dep’t HHS, 2013 U.S. App...............................................................................................22, 11

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 .........................................................................................................6

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)............................................................................................24

*Gonzales v. O Centro Espitita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)............................................................................6, 16, 17, 19

*Grote, et al. v. Sebelius, No. 13-1077, 2013 U.S. App. Lexis 2112 (Jan. 30, 2013) .....................10, 18, 21

Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. App. LEXIS 26741 (10th Cir. Dec. 20, 2012 )...................................12

Holy Land Foundation v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003)...................................................................20

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CASES

PAGE(S)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 649 (2012)..........................................................................................24

Humphrey v. Lane, 728 N.E.2d 1039 (Ohio S. Ct. 2000) ....................................................................2

Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378 (1990)............................................................................................20

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)............................................................................10

*Korte, et al. v. Sebelius, No. 10-14944, 2012 U.S. App. Lexis 26734 (7th Cir., Dec. 28, 2012) ............................................................................................................passim

Legatus v. Sebelius, No. 12-12061, 2012 U.S. Dist. Lexis 156144 (E.D. MI., Oct 31, 2012) ............... .................................................................................................................10, 14, 18

*Monahan & Domino’s Farm Corp. v. Sebelius, No. 12-15488, 2012 U.S. Dist. Lexis 182857 (E.D. MI., Dec. 30, 2012) .................................................................................................................14, 21, 22

Newland v. Sebelius, 2012 U.S. Dist. Lexis 10483 (D.Colo. 2012) .....................................................17

O’Brien v. U.S. Dep’t HHS, No. 12-3357, 2012 U.S. App. Lexis 26633 (8th Cir., Nov. 28 , 2012) .....................................................................................................................9

*Sharpe Holdings, Inc. v. U.S. Dep’t of HHS, No. 2:12-cv-92, 2012 U.S. Dist. Lexis 182942 (E.D. Mo., Dec. 31, 2012) .............................................................................................................10, 21

*Sherbert v. Verner, 374 U.S. 398 ...................................................................................................6, 16

*Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .............................................................................25

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CASES

PAGE(S)

*Thomas v. Review Bd. Of Ind. Employ. Sec. Div., 450 U.S. 707 (1981)................................................................................11, 14, 15

*Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 U.S. Dist. Lexis 163965 (D. D.C., Nov. 16, 2012) ............................................................................................................passim

Vill. of Bensenville v. FAA, 457 F.3d 52 ...........................................................................................................6

*Wisconsin v. Yoder, 406 US. 205 ..............................................................................................6, 15, 16

STATUTES

PAGE(S)

*1 U.S.C. § 1............................................................................................................19

26 U.S.C. § 4980D ...................................................................................................15

26 U.S.C. § 4980H ...................................................................................................15

*42 U.S.C. § 2000bb-1(a) ....................................................................................6, 19

*42 U.S.C. § 2000bb-2.............................................................................................11

*42 U.S.C. § 2000bb(b)(2) ......................................................................................19

42 U.S.C. § 2000cc-5 ...............................................................................................11

Ohio Rev. Code § 109.02...........................................................................................3

*Ohio Rev. Code § 1701.03(A) .......................................................................4, 5, 23

*Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. .................passim

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OTHER AUTHORTIES

PAGE(S)

76 Fed. Reg. 46621-01 (August 3, 2011) ..................................................................7

78 Fed. Reg. 8456 (2013-02-06)............................................................................7, 8

First Amendment................................................................................................20, 24

Ohio Const. art. I, sec. 7.............................................................................................2

State Constitutional Law, R. Holland, S. McAllister, J. Shaman, & J. Sutton (West pub. 2010) .......................................................................................2

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The State of Ohio, through its Attorney General Mike DeWine, respectfully submits this amicus brief in support of t he Motion for a Preliminary Injunction filed by Ohio Plaintiffs Francis and Philip Gilardi and their closely held O hio companies Freshway Foods an d Freshway Logistics (together, “Plaintiffs,” or “Freshway”). Freshway employs about 400 Ohioans full time and calculates that the penalties threatened by the Mandate at issue here could approach $15 million annually: T hese penalties could have a “crippling impact” on the businesses’ “ability to survive economically,” with a commensurate effect on their employees and their communities. See Declarations of Francis and Philip Gilardi, docs. 21-2 and 21-3 at ¶ 16. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) requires strict scrutiny of any federal requirement that compels persons to set aside sincerely held religious principles or face such punitive consequences, and the federal Mandate cannot satisfy that scrutiny in these circumstances. The State of Ohio asks this Court to vindicate the religious liberty rights protected by Congress in RF RA by granting the requested preliminary injunction.
AMICUS INTEREST OF THE STATE OF OHIO The State of Ohio seeks to foster a robust business climate in which diverse employers can succeed to the benefit of their fellow Ohioans and expand the number of good, well-paying jobs within our S tate. O hio also is committed to
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preserving for its citizens the traditions of religious tolerance and pluralism that have served our nation so well and that have informed the enactment and application of RFRA. Indee d, our State Constitution provides more expansive protections of religious liberties than does the federal charter. See Ohio Const. art. I, sec. 7 ( prohibiting “any interference with the r ights of conscience”); see also, e.g., Humphrey v. Lane, 728 N.E.2d 1039, 1045 (Ohio S. Ct . 2000) (“the Ohio Constitution’s free ex ercise protection is broader …. We adhere to the standard long held in Ohio regarding free ex ercise claims – that the state enactment must serve a com pelling state interest and must be the least restrictive means of furthering that interest. That protection applies to direct and indirect encroachments upon religious freedoms”); State Constitutional Law, R. Holland, S. McAllister, J. Shaman, & J. Sutton (West pub. 2010) at 523-24 (noting breadth and specifics of Ohio protections). Ohio’s Constitution, that is, in this context provides at the state level roughly the same measure of protection of religious liberties that RFRA adopts as a matter of federal statutory law.
Ohio therefore has a very strong interest in opposing application of a federal Mandate on local family businesses in a way that would contravene RFRA and exact devastating penalties that would injure the citizens of our State. O hio’s interest in this matter is fu rther underscored by any reading of the Ma ndate that could pressure Ohio employers to drop group employee coverage altogether, as has
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been (incorrectly) suggested as a r emedial option by at lea st one Court, thereby subjecting the businesses to other fines while also further burdening religious principle and denying Ohio employees the benefits of val uable group health coverage. Cf. Autocam Corp. v. Seb elius, 2012 U.S. Di st. Lexis 184093 (W.D. Mich., Dec. 24, 2012) at *35, appeal pending, stay pend. ap. den. 2012 U.S. App. Lexis 26736 (6th Cir. Dec. 28, 2012) (“The net result of this scenario would seem to be a loss for everyone – for the Autocam Plaintiffs, for the Autocam employees, and for t he Defendants – all of w hom would presumably prefer t o see a t least continuation of existing group coverage, rather than termination of all group coverage. But such a result is traceable directly to the policy decisions of Congress and the Executive branch in selecting the substance, the timing, and enforcement incentives of the rules at issue”). O hio has been a party in o ther litigation challenging the legality of the same federal Mandate in other applications. State of Nebraska, et al. v. US Dep’t of HHS, et al. (pending in the 8th Circuit as ca se number 12-3238).
Attorney General Mike DeWine is the chief legal officer of the State of Ohio. Ohio Rev. Code § 109.02. He represents the State in urging this Court to recognize the significant religious liberty interests at stake here, where the federal Mandate that is being applied so as substantially to burden the religious practice of
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Ohioans has not been narrowly tailored as the least restrictive means of advancing a compelling federal interest.
INTRODUCTION AND FRAMEWORK This case involves whether the federal government legally can force the Freshway employers to abandon sincerely held religious principles under threat of severe financial penalty, even when the federal aims could be acc omplished through other less infringing and repressive means. The a nswer is ‘ no,’ because Congress enacted RFRA to g uard against the imposition of the heavy-handed, undifferentiated approach reflected by the Mandate at issue here. T he Mandate cannot satisfy RFRA’s strict scrutiny. It exempts millions upon millions – yet does not tolerate deviation by the G ilardis and their family-owned and controlled Freshway businesses. Ohio corporate law expressly permits the formation of such companies “for any purpose or combination of purposes for which individuals lawfully may associate themselves,” Ohio Rev. Code § 1701.03(A). Ohio law does not require closely heldcorporate entities to pursue profit to the exclusion of all other values: our law by design allows Ohioans to combine in corporate form to advance various lawful purposes that they elect to pursue. A s applied here, however, the federal Mandate thwarts the s worn purpose of the Gilardis to “ manage and ope rate
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Freshway Foods and Freshway Logistics in a way that reflects [their sincerely held understanding of] the teachings, mission, and values of [their] Catholic faith.” See Gilardi Declarations, docs. 21-2, 21-3 at ¶ 6; see also id. at ¶ 11.
The record in support of Freshway’s motion for preliminary injunction evidences religious belief sincerely held. A ccording to the sw orn declarations, Freshway: makes annual donations to many community non-profit charities, including Agape, Compassionate Care, United Way, Elizabeth’s New Life Center, and the like; accommodates the diverse religious needs of employees; and has established its employee health insurance program “to be an integral component of furthering the mission and values of [t he Freshway] corporations and of [the] religious beliefs and moral values” of the two Gilardi brothers who together wholly own and control the Freshway companies. Id. at ¶¶ 1, 7, 10. Thos e religious beliefs do not permit the Gilardis “to direct, or allow, Freshway Foods and Freshway Logistics to arrange for, pay for, provide, or facilitate employee health plan coverage for contraceptives, sterilization, abortion, or r elated education and counseling.” Id. at ¶ 11. Yet that is precisely what the federal Mandate requires, in violation of RFRA.
This Court has had occasion recently to review the interplay between RFRA and the Mandate at issue here. Tyndale House Publishers, Inc. v. Sebelius, No. 12-
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1635, 2012 U.S. Dist. Lexis 163965 (D. D.C., Nov. 16, 2012) (Judge Walton). As
the Court understands:
The RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government can “demonstrate[ ] that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42. U.S.C. § 2000bb-1(a), (b). Congress enacted the RFRA in response to the Supreme Court’s decision in Employment Division, Department of H uman Resources of Oregon v. Smith, 494 U.S. 872 … (1990)…. The str ingent requirements imposed by the RFRA reflec t Congress’s judgment that “governments should not substantially burden religious exercise without compelling justification” and are intended “to restore the com pelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 … (1963) and Wisconsin v. Yoder, 406 US. 205 … (1972).” Id. §§ 2000bb(a)(3), (b)(1). Acc ordingly, courts look to pre-Smith free exercise jurisprudence in assessing RFRA c laims. See Vill. of Bensenville v. FAA, 457 F.3d 52, 62 … (D.C. Cir. 2006).
Id. at ** 33-34 (quoting statute).
Thus, except in those narrowly drawn circumstances:
Government shall not substantially burden a per son’s exercise of rel igion even if the burden results from a rule of general applicability[.] 42 U.S.C. § 2000bb-1(a); Gonzales v. O Centro Espitita Beneficente Uniao Do
Vegetal, 546 U.S. 418 , 424 (2006) (“Under RFRA, th e Federal Government may
not … s ubstantially burden a person’s exercise of rel igion, ‘even if t he burden
results from a rule of general applicability’”). “It is an exacting standard, and the
government bears the burden of satisfying it.” Korte, et al. v. Sebeli us,
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No. 10-14944, 2012 U.S. App. Lexis 26734 (7th Cir., Dec. 28, 2012), at *7 (staying Mandate application pending appeal).
As the Court further explained in Tyndale House, the Mandate that triggers this RFRA scrutiny was promulgated by Defendant Department of Health and Human Services through regulations “under which all health insurance plans and policies (except those grandfathered or otherwise exempt) are required to comply with the contraceptive coverage mandate starting with plan years beginning on or after August 1, 2012. 76 Fed. Reg. 46621-01 (August 3, 2011).” 2012 U.S. Dist. Lexis 163965 at * 5. Co urts have noted that this federal regulatory Mandate requires non-exempt employers to provide their employees with insurance coverage that includes “without limitation, diaphragms, oral contraceptives, intrauterine devices, and … the ‘morning after pill’ … and … the ‘week after pill’,” in addition to sterilization procedures and to related counseling. See, e.g., Autocam, 2012 U.S. Dist. Lexis 184093 at ** 6-7.
And although (amidst the controversies these regulations have engendered) federal authorities now have announced new proposed amendments to their previously published “final rules,” those amendments explicitly would not address or accommodate in any way the religious convictions of for-profit employers such as the Gilar dis. See 78 F.R. 8456 (2013-02-06). I ndeed, the federal regulators have published that they “believe that this proposal would not expand the universe
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of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules,” and that they intentionally mean to “limit any [purported] accommodation [only] to nonprofit organizations that hold themselves out as religious…. The Departments do not propose that the definition of eligible organization extend to for-profit secular employers.” Id.; see also, e.g., “Latest Birth-Control Offer ‘Falls Short,’” Wall Street Journal 2/08/13 (quoting President of the US Conference of Catholic Bishops, Cardinal Timothy Dolan, in noting teachings that instruct Catholics to “live their lives during the week to reflect the same beliefs that they proclaim on t he Sabbath,” and adding: “We cannot now abandon them to be forced to violate their morally well-informed consciences”).
ARGUMENT I. The federal Mandate requiring Freshway to provide insurance for
contraception, sterilization, abortifacients and related products and services violates religious liberties protected by RFRA. This case thus presents a clea r clash between the Ma ndate and the fre e exercise of religion that RFRA is meant to protect. The Mandate and the guiding religious principles that animate Freshway stand in direct conflict: th e federal Goliath here brooks no deviation from (non-“grandfathered,” non-exempt) businesses like Fr eshway operated on religious conviction. The Gilardis believe that to operate their companies “consistent with [their] Catholic faith and values,” they must “continue to be able to provide high quality, broad coverage health
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insurance for … full-time employees that excludes coverage for things [they] believe are m orally wrong … to a rrange for, pay for, provid e, facilitate, or otherwise support.” Thus, the Mandate prevents them “from following the dictates of … Catholic faith in the operation and management of Freshway Foods and Freshway Logistics, [and] violates the religious-based principles by which [the companies] are run….” Declarations, Docs. 21-2, 21-3 at ¶¶ 14, 19. As applied to Freshway, this federal insistence on subjugating religious values to bureaucratic mandate cannot withstand strict scrutiny.
A. The federal Mandate as ap plied here substantially burdens the free exercise of religion.
To describe the undisputed conflict between the Mandate’s strictures and the religious beliefs that inform the o peration of F reshway is es sentially to e stablish the substantial burden prong of the RFRA test. T he Court in Tyndale House recognized that the Mandate “substantially burdens” the religious exercise of the plaintiffs considered there, 2012 U.S. Di st. Lexis 163965 at * 48, and that conclusion finds strong support in similar determinations by several other federal courts. Both the Seventh Circuit and the Eighth Circuit very recently have found a likelihood of “substantial burden” in this context sufficient to support appeals court issuance of injunctions pending appeal. Annex Medical, Inc. et al. v. Sebelius, No. 13-1118, 2013 U.S. App. Lexis 2497 (8th Cir., Feb. 1, 2013); O’Brien v. U.S.
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Dep’t HHS, No. 12-3357, 2012 U.S. App. Lexis 26633 (8th Cir., Nov. 28 , 2012); Grote, et al. v. Sebelius, No. 13-1077, 2013 U.S. App. Lexis 2112 (Jan. 30, 2013); Korte, supra. And various other federal district courts have granted preliminary relief in the context of the operation of for-profit enterprises that otherwise would be compelled by the Mandate to violate guiding religious principles. See, e.g., Sharpe Holdings, Inc. v. U.S. Dep’t of HHS, No. 2:12-cv-92, 2012 U.S. Dist. Lexis 182942 (E.D. Mo., Dec. 31, 2012) at *13 (dairy corporation; “plaintiffs have shown that the enforcement of the … mandate, and its substantial financial penalties, on their health plan would substantially burden their religious beliefs”); American Pulverizer Co. v. U.S. Dep’t of HHS, 2012 U.S. Di st. Lexis 182307 (W.D. Mo. Dec. 20, 2012); Legatus v. Sebelius, No. 12-12061, 2012 U.S. Di st. Lexis 156144 (E.D. MI., Oct 31, 2012) (“the court assumes that [family-owned outdoor power equipment company and its President] are likely to show at trial that the … Mandate substantially burdens the observance of th e tenets of Catholicism”); others as catalogued in Freshway’s Points of Law and Authority, doc. 21, at 2.
“To determine whether the contraceptive coverage mandate substantially burdens the plaintiffs’ religious exercise, the Court must consider whether the government action puts ‘substantial pressure on [the] adherent[s] to modify [their] behavior and to violate [their] beliefs’.” Tyndale House, 2012 U.S. Di st. Lexis
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163965 at * 36, quoting Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008), quoting Thomas v. Review Bd. Of Ind. Employ. Sec. Div., 450 U.S. 707, 718 (1981). In making this assessment, of course, courts should not succumb to any temptation to evalua te what they may consider the tr ue doctrinal significance of sincerely held religious beliefs. Doctrines of any religion can appear intricate, especially when viewed by civil authorities in a non-religious context, and perhaps at times may even appear to be based more on faith than on legal logic. To enmesh the courts in making religious distinctions as to what matters of doctrine adherents are justified in regarding as significant and what m atters the belie vers see as important but really should not is to embark on a dangerous course that RFRA helps deter.
Thus in RFRA, Congress defined the “exercise of religion” as “any exercise of religion, whether or n ot compelled by, or cen tral to, a s ystem of re ligious belief.” 42 U.S.C. § 2000bb-2 (referencing 42 U.S.C. § 2000cc-5) (emphasis added). The Supreme Court has underscored this fundamental point: “Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716.
The Supreme Court’s warning is very apt in this context, where some Courts have found the Mandate’s burden is too “attenuated” to be substantial because its massive (and distinctly not attenuated) penalties attach to the failure to insure for products or services that will be used (or not) by third parties instead of the
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providers of the insurance. See Conestoga Wood Specialties Crop. Secretary of U.S. Dep’t of HHS, 2013 U.S. App. LEXIS 2706 (3rd Cir. 2013)(denying stay pending appeal) at *7; Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. App. LEXIS 26741 (10 th Cir. Dec. 20 , 2012 ) at *9; Autocam, supra. These limited opinions appear improperly to ha ve arrogated to the Courts the religious determination of whether the leap to compelling employers to purchase insurance for abortifacients and contraceptives is of s ufficiently significant theological moment properly to offend religious sensibilities. (They also appear to have gotten the third party direct/indirect role backwards: in paying salaries, the employer is not purchasing anything that he views as religiously problematic, but direct purchase of the mandated insurance would violate Plaintiffs’ sincerely held religious beliefs. See Gilardi Declarations, docs. 21-2, 21-3 at ¶ 11.)
Thus, when the Autocam Court finds “no functional difference” between paying salaries and paying for contraceptive insurance, and hence that the Mandate likely imposes no “substantial burden” on religion, 2012 U.S. Dist. Lexis 184093 at *18, not all theologians would agree. The Na tional Conference of Catholic Bishops, for e xample, has stated that that the regulation affronts Catholic conscience in mandating “sponsoring of, and payment for, insurance as employers … without even the semblance of an exemption.” “ March 14 S tatement on Religious Freedom and HHS Mand ate,” A Statement of the Administrative
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Committee of the United States Conference of Catholic Bishops.2 And certainly in other contexts, secular laws recognize a clear distinction between payment of a salary by one party and the subsequent use of that money by another.
The Seventh Circuit has explained the point precisely: the federal government’s attenuation argument “misunderstands the substance of the claim. The religious liberty violation at issue here inh eres in the coerced coverage of contraception, abortifacients, sterilization, and re lated services, not – or perhaps more precisely, not only – in the later purchase or use of contraception or related services.” Korte, No. 10-14944, 2012 U.S. App. Lexis 26754, at *3 (emphasis in original). Again, Plaintiffs’ proof here is that their guiding religious principles do not permit them to direct, arrange for, provide, or pay for insurance covering contraceptives or abortifacients. Declarations, docs. 21-2, 21-3 at ¶ 11. But that is precisely what the Mandate – directly – commands.
Courts should not second guess sincerely held rel igious principles that inform Plaintiffs’ operations. Rec ognizing that under our pluralistic system, “religious beliefs need not be acc eptable, logical, consistent, or comprehensible to others in order to merit” protection, and that “it is not within the judicial function and judicial competence to inquire” into the a ccuracy of religious conceptions,
2 This document may be found at: http://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religiousfreedom-and-hhs-mandate.cfm (last visited on February 18, 2013).
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Thomas, 450 U.S. at 714, 716, other courts too have recognized the likelihood that the Mandate at issue imposes a substantial burden on the free exercise of those whose views are similar to P laintiffs here. See, e.g., Legatus, 2012 U.S. Dis t. Lexis 156144, at *20 (following lead of “courts [that] often simply assume that a law substantially burdens a person’s exercise of reli gion when that person so claims,” citing extensive authority); Monahan & Domino’s Farm Corp. v. Sebelius, No. 12-15488, 2012 U.S. Dist. Lexis 182857, at *9 (E.D. MI., Dec. 30, 2012) (“the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate.… Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions…. [Therefore], the Court will assume that abiding by the m andate would substantially burden … ad herence to Ca tholic teachings”).
Nor would it b e an answer to suggest that the Mandate imposes no substantial burden on the exercise of religion because Freshway has the option simply of discontinuing its employee group insurance entirely and paying penalties at a level lower than the fines that apply to providing group insurance without the mandated abortifacient and contraception coverage. Cf. Autocam, 2012 U.S. Dist. Lexis 184093 at * 34 (noting “an irony: namely, one very real possibility … is that Plaintiffs will choose to t erminate their existing coverage and run the risk of a
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shared responsibility payment obligation under Section 4980H, rather than the more draconian financial consequences under Section 4980D for non-compliant group plans. T his would, of course, leave Autocam’s employees without group coverage of any kind….”). The testimony is that either the 26 U.S.C. § 498 0D penalty of $100 per employee per day for not covering the mandated products and services in a group plan (which would approach $15 million a year for Freshway), or the $2,000 per employee annual assessment under 26 U.S.C. § 4980H for not providing coverage at all (approaching some $800,000 and exacting obvious labor relations costs) “would have a crippling impact.” Declarations, docs. 21-2 and 213 at ¶ 16. Even more significantly, forcing the companies to discontinue all group coverage would again be to coerce Freshway to depart from guiding religious principles. Id. at ¶ 10 (provision of employee group health insurance is “integral component” in furthering the mission of the guiding religious principles).
The Supreme Court itself has made clear that: Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Thomas, 450 U.S. at 718-19. Indeed, in the Yoder case cited by RFRA’s text, the Supreme Court found a substantial burden in a $5.00 fine for violation of the
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compulsory school attendance law at issue there. 406 U.S. at 208, 219. And the Court in Tyndale House, too, underscored that: “Government action can substantially burden a plaintiff’s religious exercise even if the law only results in the plaintiff being forced to forgo a government benefit [citing Sherbert]. … As in Yoder, the contraceptive coverage mandate affirmatively compels the plaintiffs to violate their religious beliefs in order to comply with the law and avoid the sanctions that would be imposed for their noncompliance. Indeed, the pressure on the plaintiffs to violate their religious beliefs is ‘unmistakable’”. 2012 U.S. Dist. Lexis 163965, at *37-40 (D. D.C., Nov . 16, 2012). T he Mandate’s substantial burden on free exercise is clear beyond peradventure.
B. The federal government cannot show a c ompelling interest in applying this mandate to Freshway, as witness the wide spread exemptions for other businesses, and there are less restrictive means by which the federal government may achieve its goals.
The federal government is required under RFRA’s strict scrutiny to demonstrate that the mandate’s burden as a pplied to Freshway furthers a compelling governmental interest through the least restrictive means. T he Supreme Court has held both that “the burden is placed squarely on th e Government by RFRA,” and that “the burdens at the preliminary injunction stage track the burdens at trial.” O Centro, 546 U.S. at 429. T he government cannot meet that burden here.
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In O Centro, the Supreme Court explained that “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” 546 U.S. at 430-31. This is a “ more focused inquiry” under which the sta tute commands that courts look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[ ] the asserted harm of gra nting specific exemptions to particular religious claimants.” Id. at 432, 431.
This sharpened inquiry undercuts the federal government’s compelling interest position that no exception can be made for employers such as Freshway. There is no dispute that the Mandate already does not apply to any employer with fewer than 50 employees, or to employers with “grandfathered” plans covering tens of millions more plan participants. Just as the Court found in Tyndale House, 2012 U.S. Di st. Lexis 163965, at **60, 61: “ The existence of these exemptions significantly undermines the defendants’ interest in applying the contraceptive coverage mandate to the plaintiffs. Thus, [given the lack of proof regarding a harm for exemption of the particular claimants], and considering the myriad of exemptions to the contraceptive coverage mandate already granted by the government, the defendants have not shown a compelling interest in requiring the plaintiffs to provide the specific contraceptives to which they object.” See also,
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e.g, Newland, 2012 U.S. Dist. Lexis 104835, *23 (“this massive exemption [for grandfathered plans] completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs”); Legatus, 2012 U.S. Di st. Lexis 156144, *20; American Pulverizer Co. v. U.S. Dep’t of HHS, 2012 U.S. Dist. Lexis 182307 (W.D. Mo. Dec. 20), *14 (“significant exemptions … ex ist. Accordingly, these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs”).
Dispositive, too, under st rict scrutiny analysis, the federal government has other less restrictive means available by which to accomplish its desired ends. Courts have observed that those alternatives range fr om direct purchase and distribution to tax incentives. See, e.g., Newland, 2012 U.S. Dist. Lexis 104835 (D. Co.), *24 (referencing options including “creation of a [government-provided] contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, [and] creation of a tax credit or deduction for contraceptive purchases ….”).
The Seventh Circuit twice has held in similar cases that “the government has not … demonstrated that requiring re ligious objectors to provide cost-free contraception coverage is the least restrictive means of increasing access to contraception.” Grote, 2013 U.S. Ap p. Lexis 2112, *11; Korte, 2012 U.S. App. Lexis 26734, *13. The demands of t he federal government that particular
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 25 of 33
employers with particular religious scruples subordinate those values to the government’s mandated approach is the least restrictive alternative only if th e desired governmental end somehow would include the objective of establishing certain religious principles as misguided under a “your religious values are wrong, and we’re going to show you who’s boss” approach that we cannot assume the federal government intends. I n any event, RFRA does not permit such heavyhanded, undifferentiated impositions.
C. RFRA protections extend to “persons,” and the mandate is n ot immune from RFRA scrutiny as applied to Freshway’s for-profit family owned businesses operated in accordance with religious principles as permitted under organizing Ohio law.
Congress deliberately chose to extend the protections of RFRA not only to individuals, but to “persons.” 42 U.S.C. § 2 000bb(b)(2) (purpose of RFRA is “to provide a cla im or defense to persons whose religious exercise is substantially burdened by government”). T hus RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the test of strict scrutiny is sa tisfied. 4 2 U.S.C. § 2000bb-1(a ). A nd Congress ha s made itself clear – in the very first section of the first Chapter of the United States Code – that unless otherwise indicated by context, “the word[ ] ‘person’ … include[s] corporations, companies,
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 26 of 33
associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1.
It would seem beyond dispute that RFRA protections can extend beyond individuals to combinations, see, e.g., O Centro, 546 U.S. at 425 (U.S. branch of plaintiff church numbered more than 100 people), and that religion can be exercised through the corporate form, see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 528 (1993) (upholding free exercise rights of church and its President in § 1983 action); c.f. Holy Land Foundation v. Ashcroft,333 F.3d 156, 167 (D .C. Cir. 2003) (questioning but not deciding whether corporation is a RFRA person; “no free exercise right to fund terrorists”). The Court in Tyndale House noted: “ Nor is there any dispute” that non-profit religious organizations can exercise religion in their “own right…; indeed, the case law is r eplete with exam ples of such organizations asserting cognizable free exercise and RFRA challenges.” 2012 U.S. Dist. Lexis 163965 at * 24 (citing, for example, Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 381, 384 (1990)). And the holding of Tyndale House that the for-profit Tyndale entity there ha d standing to assert the free exercise r ights of its owners both directly and u nder the doctrine of third party standing, id. at ** 15, 24, 33, as a closely held corporation owned by a Foundation and three trusts, only enhances the position of the Freshway companies here because the businesse s are ow ned
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entirely by the two Gilardi brothers whose First Amendment and RFRA rights are unassailable, see id. at ** 20, 24 and n. 10, and Declarations, docs. 21-2, 21-3 at ¶ 1 (Gilardi brothers with 100% ownership stake).
Nonetheless, the federal government has taken the position in related cases that where the Mandate is applied to “a secular, for-profit enterprise, no rights under RFRA are implicated at all.” See, e.g., Korte, 2012 U.S. App. Lexis 26734. That position has no basis either in the language of RFRA, or in l ogic. RFRA in no way categorizes the e nterprises to wh ich it applies or draws the sorts of distinctions that the federal government’s argument implies. See id. at **8-9 (“That the Kortes operate their business in the corporate form is not dispositive of their claim. … Th e contraception mandate applies to K&L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to o perate their company in compliance with it”) ; Grote, No. 13-1077, 2013 U.S. App. Lexis 2112, at **5, 9 ( Korte “considered the likelihood of success of a claim brought by a secular, for-profit corporation owned and operated by a Catholic family in accordance with the teachings of the Catholic faith…. If anything, the Grote family and Grote Industries have a more compelling case …. [ because] the Grote Industries health plan is se lf-insured and has never provided contraception coverage”); Sharpe Holdings, Inc., 2012 U.S. Dis t. Lexis 182942 at ** 9, 13 (Plaintiffs dairy corporation and owner have made “sufficient
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 28 of 33
initial showing of standing to sue,” and “have shown that the enforcement of the … mandate, and its substantial financial penalties, on their health plan would substantially burden their religious beliefs”); cf., Monahan, No. 12-15488, 2012 U.S. Dist. Lexis 182857, at *9 (“For purposes of the instant Motion, it is sufficient for the Court to find that Monaghan may bring a claim under the RFRA based on his argument that the mandate requires him to perform an act th at is at odds with his religious beliefs”).
The notion that RFRA excludes fr om its covera ge the oper ation of certain types of corporations (for-profit entities deemed secular), despite the lack of any such carve-out in the statute’s text, is perhaps most forcefully expressed in the concurrence in Conestoga Wood Specialties v. U.S. Dep’t HHS, 2013 U.S. App. Lexi 2706 (3rd Cir. Feb. 7, 2013) (Garth, J., concurring). The c oncurrence argues that “[u]nlike religious non-profit corporations or organizations, the religious liberty relevant in the context of for-profit corporations is the liberty of it s individuals, not of a profit-seeking corporate entity.” Id. at *14 (emphasis in original). But the rationale for that distinction is left unclear – for all corporations, non-profit as w ell as for-profit, ultimately are organ ized by and ac t through individuals, and the concurrence’s point that for-profit companies “’do not pray, worship, [or] observe sacraments’” appears to have no greater force with regard to for-profit entities than it would as applied to the non-profit groups that all concede
22

Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 29 of 33
receive RFRA coverage. The essence of the conc urrence’s claimed distinction really is captured in its exclamation that “the purpose – and only purpose – of the plaintiff [there] Conestoga is to make money!” Id. at *15. But whatever validity that conclusion may have under Pennsylvania law (and the concurrence provides no citation), that simply is not a fa ir statement of the requirements found in the Ohio law of corporations.
The Ohio law under which the family-owned Freshway companies are organized recites that (with certain exceptions not relevant here): “A corporation may be formed … fo r any purpose or combination of purposes for which individuals lawfully may associate themselves.” Ohio Rev. Code § 1701.03(A). In keeping with that law, the approved Articles of I ncorporation of Fresh Unlimited, Inc. as found at the official public website of the Ohio Secretary of State3 set forth that the purpose for which the company is formed is “[t]o engage in any lawful act or activity for which corporations may be formed under Sections 1701.01 to 1701.98 inclusive, of the Ohio Revised Code.” Absolutely nothing in those or other Code sections restricts, requires (or guarantees) Freshway “to make money!” Under Ohio law, the pursuit of profit need not be the exclusive or even the primary reason for the corporate existence. Just as “profit” is not a dirty word
3 http://www2.sos.state.oh.us/reports/rwservlet?imgc&Din=G298_1231(last visited on F ebruary 20, 2013).
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 30 of 33
that should discredit the values by which an enterprise is operated, neither is it necessarily the a nimating or e xclusive reason for corporate existence of closely held enterprises organized as the Freshway companies are. Fam ily-owned companies that provide needed products and cre ate good jobs with significant benefits surely can be operated according to agreed guiding religious principles of their owners regardless of whether they are organized under the general or the nonprofit sections of Title 17 of the Ohio Revised Code (Ohio’s corporations chapter).
Freedom of speec h and the other freedoms encompassed by the F irst Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, and the Court has not identified a separate source for the right when it has been asserted by corporations. First National Bank of Boston v. Bell otti, 435 U.S. 765, 780 (1978) (citations omitted; emphasis added); see also Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) (“The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under th e First Am endment simply because such associations are not ‘natural persons’”); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 649 (2012) (vindicating free exercise rights of religious organizations). The federal government’s argument in similar cases that some blanket rule excludes secular for-profit entities from RFRA protection, while their owners at
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the same time are precluded from advancing their own RFRA claims because the mandate applies only to the corporate entity, posits a Catch 22 that is contrary to the purpose and the text of the Religious Freedom Restoration Act with its deliberate choice to cover “persons” as defined expansively in Code. Moreover, in similar circumstances, where the businesses do not “present any free exe rcise rights … different from or greater than” the rights of the owners, courts have held that they “have standing to assert the f ree exercise rights of [their] owners.” Stormans, Inc. v. Selecky , 586 F.3d 1109, 1120 (9th Cir. 2009) (state mandate of pharmacy sale of contraceptive drugs); Tyndale House, No. 12-1635, 2012 U.S. Dist. Lexis 163965, at *17-20. Fu rther still, where there is injury and a “congruence of interests” between company and owner, and where the challenged regulation applies to the company and not directly against the owners, the company has standing to assert any free exerc ise rights that the government may argue cannot be advanced by the i ndividuals. See, Tyndale House, at **27-33 (noting there that federal defendants had urged that no Tyndale entity would have standing to challenge the Mandate).
RFRA’s protections are designedly broad, and operate to focus strict scrutiny on the Mandate as applied here to Freshway.
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 32 of 33
CONCLUSION Because the Mandate at issue as applied to Freshway cannot withstand the strict scrutiny commanded by RFRA, the State of Ohio respectfully urges this Court to grant Plaintiffs’ Motion for a Preliminary Injunction.
Respectfully submitted, MICHAEL DEWINE (OH-0009181) OHIO ATTORNEY GENERAL /s/ Frederick D. Nelson FREDERICK D. NELSON (OH-0027977) Senior Advisor [A.G. designee per LCvR 83.2(f)] Ohio Attorney General’s Office 30 E. Broad St., 17th Floor Columbus, Ohio 43215 Tel: 614-728-4947 frederick.nelson@ohioattorneygeneral.gov Counsel for Amicus Curiae State of Ohio
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Case 1:13-cv-00104-EGS Document 27 Filed 02/22/13 Page 33 of 33

CERTIFICATE OF SERVICE I hereby certify that the foregoing was submitted to the Clerk’s office by

email pursuant to the Courts’ Supplemental Civil Filing Procedures, Part II,

F(2)(g), F(3)(a), and was served by email and regular U.S. mail upon counsel for

all parties of record on this 21st day of February, 2013.

Edward L. White American Center for Law & Justice 5068 Plymouth Road Ann Arbor, Michigan 48105 Email: ewhite@aclj.org

Benjamin Leon Berwick U.S. Department of Justice Civil Division, Fe deral Programs Branch 20 Massachusetts Avenue, NW Washington DC 20530 Email: Benjamin.l.berwick@usdog.gov

Counsel for Defendants

/s/ Frederick D. Nelson
FREDERICK D. NELSON (OH-0027977) Senior Advisor [A.G. designee per LCvR 83.2(f)] Ohio Attorney General’s Office

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

FRANCIS A. GILARDI, JR., et al. )

)

Plaintiffs,

)

) Civil Action No. 13-104(EGS)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

)

MEMORANDUM OPINION

Plaintiffs Francis A. Gilardi, Jr., Philip M. Gilardi,

Fresh Unlimited, Inc., d/b/a Freshway Foods, and Freshway

Logistics, Inc. filed a complaint on January 24, 2013 seeking

declaratory and injunctive relief against defendants United

States Department of Health and Human Services, Kathleen

Sebelius, United States Department of the Treasury, Timothy F.

Geithner, United States Department of Labor, Hilda L. Solis, and

their successors in office. Plaintiffs allege several causes of

action. Count I alleges a violation of the Religious Freedom

Restoration Act, 42 U.S.C. §§ 2000bb, et seq. Count II alleges

a violation of the First Amendment’s free exercise clause.

Count III alleges a violation of the First Amendment’s free

speech clause. Finally, Count IV alleges a violation of the

Administrative Procedure Act.

Pending before the Court is plaintiffs’ motion for a preliminary injunction. Plaintiffs seek injunctive relief as to Count I and allege that certain federal regulations promulgated under the Patent Protection and Affordable Care Act (“Affordable Care Act” or “ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), violate plaintiffs statutory rights under the Religious Freedom Restoration Act (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb-1). Upon consideration of the motion, the opposition and reply thereto, the Amicus Curiae Brief of the State of Ohio, the entire record, and for the reasons explained below, plaintiffs’ motion is DENIED.
I. BACKGROUND Francis A. Gilardi, Jr. and Philip M. Gilardi (collectively
the “Gilardis”), are Ohio residents and “adherents of the Catholic faith” who “hold to the Catholic Church’s teachings regarding the immorality of artificial contraceptives, sterilization, and abortion.” Compl. ¶ 3. The Gilardis are the sole owners of plaintiffs Fresh Unlimited, Inc., d/b/a Freshway Foods (“Freshway Foods”) and Freshway Logistics, Inc. (“Freshway Logistics”) (collectively the “Freshway Corporations”), both of which are Subchapter S corporations and are incorporated under the laws of the State of Ohio. The Freshway Corporations are engaged in the processing, packing, and shipping of produce and other refrigerated products, Compl. ¶¶ 16-18, and have a total
2

of about 400 employees between the companies, id. ¶¶ 17-18. The Gilardis each own a 50% share in the Freshway Corporations. They state that “[a]s the two owners with controlling interests in the two corporations, they conduct their businesses in a manner that does not violate their sincerely-held religious beliefs or moral values, and they wish to continue to do so.” Compl. ¶ 3. The Freshway Corporations provide their full-time employees with a self-insured employee health benefits plan that provides employees with health insurance and prescription drug coverage through a third-party administrator and stop-loss provider. Compl. ¶ 29. The plan is to be renewed on April 1, 2013. Id.
Plaintiffs’ claims arise out of certain regulations promulgated in connection with the Affordable Care Act. The Affordable Care Act requires that all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, for “women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HSRA”)].” 42 U.S.C. § 300gg-13(a)(4). The HSRA, an agency within the Department of Health and Human Services (“HHS”), commissioned the Institute of Medicine (“IOM”) to conduct a study on preventive services
3

necessary to women’s health. On August 1, 2011, HSRA adopted IOM’s recommendation to include “the full range of Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Mar. 2, 2013).
Several exemptions and safe-harbor provisions excuse certain employers from providing group health plans that cover women’s preventive services as defined by HHS regulations. First, the mandate does not apply to certain “grandfathered” health plans in which individuals were enrolled on March 23, 2010, the date the ACA was enacted. 75 Fed. Reg. 34538-01 (June 17, 2010). Second, certain “religious employers” are excluded from the mandate. 76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A); see 78 Fed. Reg. 8456, 8459 (Feb. 6, 2013) (proposing to broaden the August 2011 definition of religious employer to ensure that “an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths”). Third, a temporary enforcement safe-harbor provision applies to
4

certain non-profit organizations not qualifying for any other exemption. 77 Fed. Reg. 8725, 8726-77 (Feb. 15, 2012).
The parties agree that the Freshway Corporations do not qualify for any of these exemptions. As secular, for-profit employers, Freshway Foods and Freshway Logistics do not satisfy the definition of “religious employer” and are not eligible for the protection of the safe-harbor. The grandfathered plans provision also does not protect the corporations because the current health insurance plan has undergone material changes since 2010, including an increase in the cost of doctor visit co-pays. See Decl. of Francis A. Gilardi, Jr., ECF No. 21-2, at ¶ 13.
The Gilardis state that they “have concluded that complying with the Mandate would require them to violate their religious beliefs and moral values because the Mandate requires them and/or the corporations they own and control to arrange for, pay for, provide, and facilitate contraception methods, sterilization procedures, and abortion because certain drugs and devices such as the ‘morning-after pill,’ ‘Plan B,’ and ‘Ella’ come within the Mandate’s . . . definition of ‘Food and Drug Administration-approved contraceptive methods’ despite their known abortifacient1 mechanisms of action.” Compl. ¶ 5.
1 Plaintiffs use the word “abortifacient” to refer to drugs such as Plan B and Ella that they allege cause abortions. See, e.g.,
5

On February 8, 2013, plaintiffs moved for a preliminary injunction as to Count I, which alleges a violation of the Religious Freedom Restoration Act (“RFRA”). Plaintiffs argue that they satisfy the standard for a preliminary injunction because they are likely to succeed on the merits because the RFRA “substantially burdens” plaintiffs’ free exercise of religion and defendants cannot establish that the regulations survive strict scrutiny. Furthermore, plaintiffs argue, they will suffer irreparable harm absent a preliminary injunction, the balance of equities tips in plaintiffs’ favor, and the public interest favors a preliminary injunction.
II. STANDARD OF REVIEW A plaintiff seeking a preliminary injunction must establish
(1) a substantial likelihood of success on the merits; (2) that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenish, 451 U.S. 390, 395 (1981). It is “an extraordinary and drastic
Compl. ¶ 5. Plaintiffs do not allege that the regulations will require them to provide insurance coverage for the medical procedure of abortion.
6

remedy” and “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). In this Circuit, these four factors have typically been evaluated on a “sliding scale,” such that if “the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). The Circuit has recently stated, without holding, that existing Supreme Court precedent suggests “that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (citing Winter but finding that preliminary injunction was not appropriate even under less stringent sliding-scale analysis). Because this Court finds that plaintiffs have failed to establish a likelihood of success, a preliminary injunction is not appropriate under either standard, and the Court need not reach the issue raised in Sherley. See, e.g., In re Akers, --B.R. ----, 2012 WL 5419318, at *4 (D.D.C. 2012) (stating that, “[w]hichever way Winter is read, it is clear that a failure to show a likelihood of success on the merits alone is sufficient to defeat a preliminary injunction motion”); Arkansas Dairy Coop Ass’n, Inc. v. U.S. Dep’t of Agr., 573 F.3d 815, 832 (D.C. Cir. 2009) (declining to proceed to review remaining preliminary
7

injunction factors when plaintiff had shown no likelihood of success on the merits); see Apotex, Inc. v. FDA, 449 F.3d 1249, 1253 (D.C. Cir. 2006) (determining movant was not likely to succeed on the merits and declining to address the other factors).
III. DISCUSSION A. Likelihood of Success on the Merits
The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb1, provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” Subsection (b) provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Congress enacted the RFRA in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), in which the Court held that the right to free exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and of general applicability, and explicitly disavowed the test used in earlier decisions, which prohibited the
8

government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a compelling interest and was the least restrictive means to achieve that interest. 42 U.S.C. § 2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). Id.
The RFRA does not define “substantial burden” but because the RFRA intends to restore Sherbert v. Verner and Wisconsin v. Yoder, those cases are instructive in determining the meaning of “substantial burden.” In Sherbert, plaintiff’s exercise of her religion was impermissibly burdened when plaintiff was forced to choose between following the precepts of her religion” resting and not working on the Sabbath and forfeiting certain unemployment benefits as a result, or “abandoning one of the precepts of her religion in order to accept work.” 374 U.S. at 404. In Yoder, the “impact of the compulsory [school] attendance law on respondents’ practice of the Amish religion [was found to be] not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with
9

fundamental tenets of their religious beliefs.” 406 U.S. at 218.2
Plaintiffs argue that their exercise of religion is substantially burdened because “they must facilitate, subsidize, and encourage the use of goods and services that they sincerely believe are immoral or suffer severe penalties.” Pls.’ Mot. for Prelim. Injunction (“Pls.’ Br.”) at 13. Plaintiffs argue that the substantial burden imposed on the Freshway Corporations is the same as that imposed upon the Gilardis because the “beliefs of the Gilardis extend to, and are reflected in, the actions of the two corporations.” Id. at 14.
As an initial matter, the Court is troubled by plaintiffs’ apparent disregard of the corporate form in this case. Plaintiffs argue that “requiring the two corporations to provide group health coverage that the Gilardis consider immoral is the same as requiring the Gilardis themselves to provide such immoral coverage.” Id. at 14. The Court strongly disagrees. The Gilardis have chosen to conduct their business through corporations, with their accompanying rights and benefits and limited liability. They cannot simply disregard that same
2 In a recent case, the government conceded that the Controlled Substances Act placed a “substantial burden” on the “sincere exercise of religion” by a religious sect that would be prohibited from engaging in their traditional communion in which they used a hallucinogenic tea. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418, 426 (2006).
10

corporate status when it is advantageous to do so. In a recent
case dealing with similar issues, Autocam Corp. v. Sebelius, the
court noted that
[a]s corporate owners, [plaintiffs] quite properly enjoy the protections and benefits of the corporate form. But the legal separation of the owners from the corporate enterprise itself also has implcations at the enterprise level. A corporate form brings obligations as well as benefits. “When followers of a particular sect enter into commercial activities as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” United States v. lee, 455 U.S. 252, 263, n.3 (1982). Whatever the ultimate limits of this principle may be, at a minimum it means the corporation is not the alter ego of its owners for purposes of religious belief and exercise.
No. 12-1096, 2012 WL 6845677, at *7 (W.D. Mich. Dec. 24, 2012)
(denying motion for preliminary injunction on similar facts),
injunction pending appeal denied, No. 12-2673 (6th Cir. Dec. 28,
2013). Similarly, the court in Conestoga Wood Specialties, Inc.
v. Sebelius stated that
‘[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.’ Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). . . . It would be entirely inconsistent to allow [individual plaintiffs] to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose to challenge these regulations. We agree with the Autocam court, which stated that this separation between a corporation and its owners “at a minimum [ ] means the corporation is not the alter ego of its owners for the purposes of religious belief and exercise.”
11

No. 12-6744, 2013 WL 140110, at *8 (E.D. Pa. Jan. 11, 2013), injunction pending appeal denied, No. 13-1144 (3d Cir. Jan. 29, 2013).
The Court agrees with the Autocam and Conestoga courts and finds that the Gilardis cannot simply impute their views onto the corporation such that requiring the corporation to provide preventive services coverage is the same as requiring the Gilardis personally to provide preventive services coverage. The Freshway Corporations are legally separate from the Gilardis. As such, their religious views, legal and statutory obligations, and benefits cannot be imputed to each other. Accordingly, they must be evaluated separately for purposes of the RFRA.
1. The Freshway Corporations’ RFRA Claim Plaintiffs argue that the substantial burden imposed on the Freshway Corporations is the same as that imposed upon the Gilardis because the “beliefs of the Gilardis extend to, and are reflected in, the actions of the two corporations.” Pls.’ Br. at 14. Plaintiffs contend that “requiring the two corporations to provide group health coverage that the Gilardis consider immoral is the same as requiring the Gilardis themselves to provide such immoral coverage.” Pls.’ Br. at 13. Defendants respond that the coverage regulations do not substantially burden any exercise of religion because secular, for-profit
12

corporations do not exercise religion. Defs.’ Opp. to Pls.’ Mot. for Prelim. Injunction (“Defs.’ Br.”) at 11-12.
As explained above, the Court declines to disregard the corporate form by imputing the religious beliefs of the Gilardis to the corporations they own. Accordingly, the Court must evaluate whether providing preventive services coverage will cause a substantial burden on the religious exercise of the Freshway Corporations.
(a) Substantial Burden The RFRA states that “[g]overnment shall not substantially
burden a person’s exercise of religion . . . .” 42 U.S.C. §§ 2000bb-1(a). Accordingly, a threshold issue is whether the Freshway Corporations “exercise” religion. For the reasons explained below, the Court finds that they do not.3
The Freshway Corporations are secular, for-profit corporations that are engaged in the processing, packing, and shipping of produce and other refrigerated products, Compl. ¶¶ 16-18, and have a total of about 400 employees between the companies, id. ¶¶ 17-18. The complaint states the following allegations regarding the religious activities of the Freshway Corporations: Freshway Foods makes annual monetary and/or inkind donations, primarily food, to many community non-profit
3 Because the Court finds that the Freshway Corporations do not exercise religion, the Court does not reach the question of whether they are “persons” within the scope of the RFRA.
13

charitable organizations, including the YMCA, Habitat for Humanity, the American Legion, and Holy Angel’s Soup Kitchen. Compl. ¶ 28(d). Freshway Logistics donates a trailer for use by the local Catholic parish for its annual picnic and uses its trucks to deliver food donated by Freshway Foods to food banks. Compl. ¶ 28(e). During monthly employee appreciation lunches, the Freshway Corporations provide alternative foods for their employees to accommodate restrictions posed by their various religions. Compl. ¶ 28(f). They also provide their Muslim employees with space to pray during breaks, and during Ramadan, employees are permitted to adjust break periods in order to eat after sundown in accordance with their religion. Compl. ¶ 28(g).
Several allegations in the complaint allege the Gilardis’ religious activities taken in connection with the company. The complaint states that, for the last ten years “Francis and Philip Gilardi have affixed to the back of the trucks they own through a separate company, but which bear the name of Freshway Foods, a sign stating ‘It’s not a choice, it’s a child,’ as a way to promote their pro-life views to the public.” Compl. ¶ 28(a). The Gilardis also drafted a values statement listing values by which the Freshway Companies would be run. The statement lists “Ethics: Honest, Trustworthy and Responsible to:
14

-Each Other; -Our Customers; -Our Vendors. Non-negotiable – Supersedes everything.” Compl. ¶ 28(c).4
The Court is not persuaded that it must consider the Gilardis’ actions in drafting values statements and in affixing a slogan to their delivery trucks. Even considering these actions, however, the court finds that they are insufficient to establish religious activity taken by the Freshway Corporations. The statement of values drafted by the Gilardis does not mention religion at all, and the affixing of a slogan to the back of a delivery truck is incidental, at most, to the activities of the corporations.
That leaves the Court with the stated activities of the Freshway Corporations. The corporations’ charitable activities and accommodations of their employees who practice other religions, while commendable, do not establish that the Freshway Corporations themselves “exercise religion.” Rather, the Court finds that the Freshway Corporations are engaged in purely commercial conduct and do not exercise religion under the RFRA.
The cases cited by plaintiffs do not compel a different result. For example, in Tyndale House Publishers, Inc. v. Sebelius, the court noted the “unique” structure of the
4 The complaint also alleges that the Gilardis “strongly support financially and otherwise their Catholic parish, schools, and seminary.” Compl. ¶ 28(b). The complaint does not allege any connection between this activity and the Freshway Corporations.
15

plaintiff corporation, which was formed to publish religious books and Bibles and was owned in large part by a non-profit religious entity. No. 12-1635, 2012 U.S. Dist. LEXIS 163965, at *24 n.10. In deciding whether Tyndale’s owners had standing to assert a free exercise claim on Tyndale’s behalf—a different issue than the issue currently before this Court—the court held that “when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter ego of its owners for religious purposes.” Id. at *25. In this case, two large produce distribution companies are owned by two people who are members of the Catholic faith. The religious beliefs of the Gildardis cannot fairly be said to be “inseparable” from the religious beliefs of the Freshway Corporations. Indeed, on the record before the Court, there is nothing to suggest that the corporations have any religious beliefs. Accordingly, the Court finds Tyndale to be distinguishable from this case.
Plaintiffs also argue that the religious beliefs of the Gilardis should be taken into account because “corporations do not run themselves or comply with legal mandates except through human agency.” Pls.’ Reply in Supp. of Mot. for Prelim. Injunction (“Pls.’ Reply”) at 11. They further contend, citing the recent decision of Korte v. United States Department of Health and Human Services, that the Gilardis would have to
16

operate the companies in a manner that they believe to be immoral in order to comply with the preventive services requirement. Id. at 11 (citing No. 12-3841, 2012 U.S. App. LEXIS 26734, at *9 (7th Cir. Dec. 28, 2012)). In Korte, the district court denied injunctive relief on an RFRA claim to a secular, for-profit construction company that challenged the preventive services coverage requirement. No. 12-1072, 2012 WL 6553996 (S.D. Ill. Dec. 14, 2012). In that case, the district court found that any burden on the individual owners’ religious beliefs caused by the corporation’s coverage of contraceptive services was “too distant to constitute a substantial burden.” Id. at *10. The Seventh Circuit granted an injunction pending appeal. 2012 U.S. App. LEXIS 26734, at *9. The Seventh Circuit held that the corporate form was not dispositive of the individual plaintiffs’ claim because in order for the company to comply with the mandate, the individual plaintiffs would be required to violate their religious beliefs. Id. For the reasons stated above, the Court finds that the corporate form is dispositive in this case and should not be disregarded. In this respect, the court relies on several recent decisions. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (distinguishing between the “purely personal” matter of religious exercise by a corporation’s owners and the actions of a corporation), injunction pending appeal denied, No.
17

12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012); Conestoga, No. 12-6744, 2013 WL 140110, at *10 (E.D. Pa. Jan. 11, 2013) (treating corporation and its owners separate for purposes of RFRA and finding that the secular, for-profit corporation did not exercise religion); see also Conestoga, No. 13-1144, slip. op. at 3 (3d. Cir. Jan. 29, 2013) (adopting district court’s reasoning that plaintiff corporation did not exercise religion under RFRA). To the extent that Korte suggests a different result, the Court declines to follow it.
The Court declines to reach the question of whether any secular, for-profit corporation can exercise religion. Cf. Hobby Lobby Stores, 870 F. Supp. 2d at 1291 (holding that plaintiff corporations lacked standing to pursue an RFRA claim and stating that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiouslymotivated actions separate and apart from the intention and direction of their individual actors.”); Briscoe v. Sebelius, No. 13-285, 2013 U.S. Dist. LEXIS 26911, at *15 (D. Colo. Feb. 27, 2013) (“Secular, for-profit corporations neither exercise nor practice religion.”). Rather, under the facts of this case, the Freshway Corporations do not exercise religion and therefore
18

cannot succeed on the merits of a claim that the regulations substantially burden their exercise of religion.
2. The Gilardis’ RFRA Claim The Gilardis allege that the regulations create a substantial burden on the Gilardis’ exercise of religion because the regulations require them to “facilitate, subsidize, and encourage the use of goods and services that they sincerely believe are immoral or suffer severe penalties. It is this forced subsidization, and not the manner in which the employee may spend their own money or conduct their personal lives, to which plaintiffs object.” Pls.’ Br. at 13. With respect to the Gilardis, defendants argue that the regulations do not create a substantial burden because they only apply to the corporations, not their owners. Defs.’ Br. at 18. Defendants also argue that even if the regulations did create a burden on the Gilardis’ exercise of their religion, that burden is too attenuated and indirect to be substantial. Id. at 23.
(a) Substantial Burden As an initial matter, the Court declines to follow several recent cases suggesting that a plaintiff can meet his burden of establishing that a law creates a “substantial burden” upon his exercise of religion simply because he claims it to be so. See Monaghan v. Sebelius, No. 12-15488, 2012 U.S. Dist. LEXIS 182857, at *10-11 (E.D. Mich. Dec. 30, 2012) (stating that
19

because Monaghan claimed that “taking steps to have [the company] provide contraception coverage violates his beliefs as a Catholic,” the court “will assume that abiding by the mandate would substantially burden Monaghan’s adherence to the Catholic Church’s teachings); Legatus v. Sebelius, No. 12-12061, 2012 U.S. Dist. LEXIS 156144, at *20 (E.D. Mich. Oct. 31, 2012) (stating that plaintiff shows a substantial burden simply by saying so). The Court agrees with the reasoning of the court in Conestoga, in stating that “[w]hile we wholeheartedly agree that ‘courts are not arbiters of scriptural interpretation,’” the RFRA still imposes the requirement on courts to determine “whether the burden a law imposes on a plaintiff’s stated religious belief is ‘substantial.’” Conestoga, 2013 WL 140110, at *12 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). Determining whether the impact of the regulation on plaintiffs’ religious exercise is “substantial” thus necessarily requires an understanding of the nature of the religious exercise. Otherwise, as the Conestoga court noted, “[i]f every plaintiff were permitted to unilaterally determine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed it was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Id. at *13 (citing
20

Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007)); see Autocam, 2012 WL 6845677, at *7 (stating that if a court cannot look beyond plaintiffs’ assertion of religious belief, every governmental regulation would be subject to a “private veto”). Accordingly, the Court finds that it is necessary to determine the nature of plaintiffs’ religious exercise in order to determine whether it has been “substantially burdened.”
Here, plaintiffs have made several arguments regarding the nature of their religious exercise. The Gilardis “hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. They sincerely believe that actions intended to terminate an innocent human life by abortion are gravely sinful.” Compl. ¶ 25. The Gilardis “also sincerely believe in the Catholic Church’s teaching regarding the immorality of artificial means of contraception and sterilization.” Id. ¶ 26. The Gilardis state that they “have concluded that complying with the Mandate would require them to violate their religious beliefs and moral values because the Mandate requires them and/or the corporations they own and control to arrange for, pay for, provide, and facilitate contraception methods, sterilization procedures, and abortion because certain drugs and devices [come within the scope of the HRSA guidelines] despite their known abortifacient mechanisms of action.” Id. ¶ 5. “Plaintiffs cannot arrange for, pay for,
21

provide, or facilitate employee health plan coverage for contraceptives, sterilization, abortion, or related education and counseling without violating their sincerely-held religious beliefs and moral values.” Id. ¶ 32.
Having set forth the nature of the Gilardis’ religious exercise, the Court must next determine whether the requirement that the Freshway Corporations comply with the regulations constitutes a “substantial burden” on the Gilardis’ exercise of religion. The Court finds that it does not.
The regulations do not compel the Gilardis to personally “arrange for, pay for, provide or facilitate” health coverage. See Hobby Lobby, 870 F. Supp. 2d at 1294 (“The mandate in question applies only to Hobby Lobby and Marden, not to its officers or owners.”). The regulations do not require the Gilardis to “personally support, endorse, or engage in proabortion or pro-contraception activity.” Briscoe, 2013 U.S. Dist. LEXIS 26911, at *16. Rather, the regulations are imposed on the Freshway Corporations. For the reasons explained above, the Court declines to disregard the corporate form. Specifically, the Court finds that the Freshway Corporations are not the alter egos of the Gilardis for the limited purpose of asserting the Gilardis’ religious beliefs.5 The Gilardis remain
5 Plaintiffs have not requested, nor does the Court understand their argument to be, that the Court find that the Freshway
22

free to personally oppose contraception and, indeed, even the regulations that are the subject of this lawsuit. Accordingly, the Court finds that the regulations do not impose a substantial burden on the Gilardis’ exercise of religion.
The plaintiffs argue that “indirectness” is not a barrier to finding a substantial burden. Pls.’ Br. at 13 (citing Thomas, 450 U.S. at 718). Plaintiffs argue that Thomas established that the impact of a “substantial burden” need not be direct. Pls.’ Reply at 11. Plaintiffs misread Thomas. In that case, the Supreme Court held that Indiana’s denial of unemployment compensation benefits to claimant, who quit his job because his religious beliefs forbade participation in the production of armaments, violated his First Amendment right to free exercise of religion. In that case, however, the burden of the denial of benefits rested with the person exercising his religion, not a separate person or corporate entity, as is the case here. The compulsion was indirect, rather than the burden, as in this case. See Conestoga, 2013 WL 140110, at *14 n.15 (distinguishing Thomas). The Court therefore finds Thomas to be distinguishable.
The Court also does not find the fact that the health insurance provided by the Freshway Corporations is through a
Corporations are the alter egos of the Gilardis for all purposes.
23

“self-insurance” mechanism compels a different result. Compare Tyndale, 2012 U.S. Dist. LEXIS 163965, at *42-43 (finding that a self-insured plan differed materially from a group policy because in a self-insurance scheme the plaintiff “directly pays for the services used by its plan participants, thereby removing one of the ‘degrees’ of separation that the court deemed relevant in O’Brien”) with Briscoe, 2013 U.S. Dist. LEXIS 26911, at *15 (denying injunctive relief under RFRA for plaintiff corporation that provided self-insured plan) and Grote Industries, LLC v. Sebelius, No. 12-134, 2012 WL 6725905, at *7 (S.D. Ind. Dec. 27, 2012) (same), injunction granted pending appeal, No. 13-1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013). The Court finds that self-insurance, as is the case here, is not dispositive. The Freshway Corporations are providing the insurance, not the Gilardis. Accordingly, the Court finds that the Gilardis have failed to demonstrate a likelihood of success in establishing a “substantial burden” on their exercise of religion.
IV. CONCLUSION For all of the foregoing reasons, the Court finds that
plaintiffs have failed to demonstrate a likelihood of success on the merits, and plaintiffs’ motion for a preliminary injunction is DENIED. Because the Court has decided the motion on the papers pursuant to Local Civil Rule 65.1(d), the motions hearing
24

currently scheduled for March 6, 2013 is hereby CANCELED. An appropriate Order accompanies this Memorandum Opinion.

Signed:

Emmet G. Sullivan United States District Judge March 3, 2013

25

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 13-5069

September Term, 2012

1:13-cv-00104-EGS

Filed On: March 29, 2013

Francis A. Gilardi, et al.,

Appellants

v.

United States Department of Health and Human Services, et al.,

Appellees

BEFORE: Rogers, Tatel, and Brown, Circuit Judges
O R D E R
The panel has reconsidered its order filed March 21, 2013, which denied appellants’ emergency motion for an injunction pending appeal. Accordingly it is
ORDERED, on the court’s own motion, that the motion for an injunction pending appeal be granted.
The portion of the March 21, 2013 order setting forth the briefing schedule and scheduling the case for oral argument remains in effect.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Timothy A. Ralls Deputy Clerk

 
 Case 1:13-cv-00104-EGS Document 44 Filed 08/18/14 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

FRANCIS A. GILARDI, JR., et al. )

)

Plaintiffs,

)

) Civil Action No. 13-104(EGS)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

et al.

)

)

Defendants.

)

)

ORDER

In accordance with [43] the joint status report filed by

the parties on August 18, 2014, it is hereby

ORDERED that Defendants, their employees, agents, and

successors in office are hereby preliminarily ENJOINED until

further order of the Court from enforcing against Plaintiffs,

and their employee health plans, the group health coverage

provided in connection with such plans, and/or their insurers,

the statute and regulations that require Plaintiffs to provide

their employees insurance coverage for “[a]ll Food and Drug

Administration approved contraceptive methods, sterilization

procedures, and patient education and counseling for all women

with reproductive capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012),

as well as any penalties, fines, assessments, or any other

enforcement actions for noncompliance, including but not limited

Case 1:13-cv-00104-EGS Document 44 Filed 08/18/14 Page 2 of 2

to those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d; and it is
FURTHER ORDERED that that no bond is required; and it is FURTHER ORDERED that all proceedings are STAYED until September 17, 2014, so that the individual Plaintiffs can determine how they would like to proceed in light Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The parties shall submit a joint status report, including a recommendation for further proceedings, by no later than that same date. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge August 18, 2014

 
 Case 1:13-cv-00104-EGS Document 49 Filed 10/20/14 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

FRANCIS A. GILARDI, JR., et al. )

)

Plaintiffs,

)

) Civil Action No. 13-104(EGS)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

et al.

)

)

Defendants.

)

)

ORDER

In light of the Supreme Court’s decision in Burwell v.

Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon the

consent of the Plaintiffs and Defendants, it is hereby

ORDERED that Defendants, their employees, agents, and

successors in office are permanently ENJOINED

a) from enforcing

1) the “June 30, 2014 Contraceptive Coverage

Requirement,” defined here to include those

provisions of federal law in existence on June

30, 2014, when the Supreme Court decided Hobby

Lobby, that require Plaintiffs Fresh Unlimited,

Inc., d/b/a Freshway Foods, and Freshway

Logistics, Inc. (hereafter “the Freshway

Companies”) to provide their employees with

health coverage for contraceptive methods,

sterilization procedures, and related patient

Case 1:13-cv-00104-EGS Document 49 Filed 10/20/14 Page 2 of 3
education and counseling to which Plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and 2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against Plaintiffs Freshway Companies, their employee health plan(s), the group health coverage provided in connection with such plan(s), and/or the Freshway Companies’ health insurance issuers and/or third-party administrators with respect to the Freshway Companies’ health plan(s); and it is FURTHER ORDERED that judgment is entered in favor of Plaintiffs and against Defendants on Plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is FURTHER ORDERED that all other claims against Defendants are DISMISSED; and it is
2

Case 1:13-cv-00104-EGS Document 49 Filed 10/20/14 Page 3 of 3

FURTHER ORDERED that, pursuant to Local Civ. R. 54.2, the parties are directed to confer and attempt to reach agreement on attorneys’ fees and costs. The parties are further directed to file a joint status report, including a recommendation for further proceedings, by no later than December 12, 2014. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. A status conference will be held on December 17, 2014 at 2:00 p.m. in Courtroom 24A, to discuss the matter pursuant to Local Civ. R. 54.2. If there is no resolution of the attorneys’ fees and costs matter at the status conference, Plaintiffs may file a motion for attorneys’ fees and costs within thirty days of that status conference, pursuant to Fed. R. Civ. P. 54, unless a different schedule is ordered at that conference; and it is
FURTHER ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents Plaintiffs from filing a new civil action to challenge any such future changes.
SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge October 20, 2014

3

 
 Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 1 of 10
APPEAL,CLOSED,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−00104−EGS

GILARDI et al v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Assigned to: Judge Emmet G. Sullivan Case in other court: 13−05069 Cause: 42:2000 Religion
Plaintiff

Date Filed: 01/24/2013 Date Terminated: 03/12/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

FRANCIS A. GILARDI

represented by Edward L. White , III AMERICAN CENTER FOR LAW & JUSTICE 3001 Plymouth Road Suite 203 Ann Arbor, MI 48105 (734) 680−8007 Fax: (734) 680−8006 Email: ewhite@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Francis J. Manion AMERICAN CENTER FOR LAW & JUSTICE P. O. Box 60 New Hope, KY 40052 (502) 549−7020 Fax: (502) 549−5252 Email: fmanion@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Geoffrey R. Surtees AMERICAN CENTER FOR LAW & JUSTICE P. O. Box 60 New Hope, KY 40052 (502) 549−7020 Fax: (502) 549−5252 Email: gsurtees@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Erik M. Zimmerman AMERICAN CENTER FOR LAW & JUSTICE P. O. Box 60 New Hope, KY 40052 (757) 226−2489 Fax: (757) 226−2826 Email: ezimmerman@aclj.org ATTORNEY TO BE NOTICED

Colby Mims May AMERICAN CENTER FOR LAW & JUSTICE 201 Maryland Avenue NE

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 2 of 10

Washington, DC 20002 (202) 546−8890 Fax: (202) 546−9309 Email: cmmay@aclj−dc.org ATTORNEY TO BE NOTICED

Plaintiff PHILIP M. GILARDI

represented by Edward L. White , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Erik M. Zimmerman (See above for address) ATTORNEY TO BE NOTICED

Colby Mims May (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
FRESH UNLIMITED INCORPORATED doing business as FRESHWAY FOODS

represented by Edward L. White , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Erik M. Zimmerman (See above for address) ATTORNEY TO BE NOTICED

Colby Mims May (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
FRESHWAY LOGISTICS INCORPORATED

represented by Edward L. White , III (See above for address)

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 3 of 10
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Geoffrey R. Surtees (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erik M. Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Colby Mims May (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant KATHLEEN SEBELIUS In her official capacity as Secretary of United States Department of Health and Human Services Defendant U.S. DEPARTMENT OF TREASURY
Defendant TIMOTHY F. GEITHNER In his official capacity as Secretary of the United States Department of the Treasury Defendant U.S. DEPARTMENT OF LABOR

represented by Benjamin Leon Berwick PROTECT DEMOCRACY 2020 Pennsylvania Avenue, NW #163 Washington, DC 20006 (202) 599−0466 Email: ben.berwick@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 4 of 10

Defendant
HILDA L. SOLIS In her official capacity as Secretary of United States Department of Labor

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus STATE OF OHIO

represented by Frederick Dickson Nelson OHIO ATTORNEY GENERAL Administration 30 East Broad Street 17th Floor Columbus, OH 43215 (614) 728−4947 Email: frederick.nelson@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/24/2013
01/24/2013
01/24/2013 01/25/2013 01/25/2013 01/25/2013
01/25/2013 01/29/2013

# Docket Text
1 COMPLAINT against U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, KATHLEEN G. SEBELIUS, U.S. DEPARTMENT OF TREASURY, TIMOTHY F. GEITHNER, U.S. DEPARTMENT OF LABOR, HILDA L. SOLIS ( Filing fee $ 350 receipt number 0090−3197361) filed by Francis A Gilardi, Freshway Logistics, Inc., Fresh Unlimited, Inc., d/b/a Freshway Foods, Philip M Gilardi. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet & Related Cases, # 2 Summons Geithner Summons, # 3 Summons Sebelius Summons, # 4 Summons Solis Summons, # 5 Summons Attorney General Summons, # 6 Summons U.S. Attorney Summons, # 7 Summons HHS Summons, # 8 Summons Labor Dept. Summons, # 9 Summons Treasury Dept. Summons)(May, Colby) (Entered: 01/24/2013)
2 Proposed MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Edward L. White III, :Firm− American Center for Law & Justice, :Address− 5068 Plymouth Road, Ann Arbor, MI 48105. Phone No. − 734−662−2984. Fax No. − 734−302−1758 by Fresh Unlimited, Inc., d/b/a Freshway Foods, Freshway Logistics, Inc., Francis A Gilardi, Philip M Gilardi (Attachments: # 1 Text of Proposed Order PHV Proposed Order)(May, Colby) (Entered: 01/24/2013)
Case Assigned to Judge Reggie B. Walton. (ls, ) (Entered: 01/25/2013)
3 Corporate Disclosure Statement by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (May, Colby) (Entered: 01/25/2013)
4 NOTICE OF RELATED CASE by All Plaintiffs. Case related to Case No. 12−cv−1635. (May, Colby) (Entered: 01/25/2013)
5 ELECTRONIC SUMMONS (8) Issued as to TIMOTHY F. GEITHNER, KATHLEEN G. SEBELIUS, HILDA L. SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Consent Notice)(ls, ) (Entered: 01/25/2013)
MINUTE ORDER granting 2 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by Edward L. White III, and finding good cause to grant the motion, the motion is hereby GRANTED. Edward L. White III may appear and be heard in the above−captioned matter. Signed by Judge Reggie B. Walton on 1/25/2013. (lcrbw2) (Entered: 01/25/2013)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Erik M. Zimmerman, :Firm− American Center for Law & Justice, :Address− 1000 Regent University Drive, Virginia Beach, VA 23464. Phone No. − 757−226−2489. Fax No. − 757−226−2836 by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 5 of 10

01/29/2013 01/29/2013 01/29/2013 01/29/2013 01/29/2013
01/30/2013 01/30/2013 01/30/2013 01/30/2013 01/30/2013
01/31/2013 01/31/2013
01/31/2013
01/31/2013

Text of Proposed Order Zimmerman PHV Proposed Order)(May, Colby) (Entered: 01/29/2013)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/29/2013. Answer due for ALL FEDERAL DEFENDANTS by 3/30/2013. (White, Edward) (Entered: 01/29/2013)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/29/2013. (White, Edward) (Entered: 01/29/2013)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF LABOR served on 1/29/2013 (White, Edward) (Entered: 01/29/2013)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA L. SOLIS served on 1/29/2013 (White, Edward) (Entered: 01/29/2013)
11 ORDER. Per the attached Order, it is hereby ORDERED that the plaintiffs shall show cause in writing on or before February 8, 2013 why this case is related to Tyndale House Publishers, Inc. v. Sebelius, Civ. No. 12−1635 (RBW). It is further ORDERED that the defendants shall respond in writing on or before February 18, 2013. Signed by Judge Reggie B. Walton on 1/29/2013. (lcrbw2) (Entered: 01/29/2013)
12 CERTIFICATE OF SERVICE by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI re 11 Order, Service of Order (Doc. 11) on Defendants, Attorney General, and U.S. Attorney. (May, Colby) (Entered: 01/30/2013)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY F. GEITHNER served on 1/30/2013 (May, Colby) (Entered: 01/30/2013)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KATHLEEN G. SEBELIUS served on 1/29/2013 (May, Colby) (Entered: 01/30/2013)
15 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 1/29/2013 (May, Colby) (Entered: 01/30/2013)
MINUTE ORDER granting 6 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by Erik M. Zimmerman, and finding good cause to grant the motion, the motion is hereby GRANTED. Erik M. Zimmerman may appear and be heard in the above−captioned matter. Signed by Judge Reggie B. Walton on 1/30/2013. (lcrbw2) (Entered: 01/30/2013)
NOTICE OF ERROR re 12 Certificate of Service; emailed to cmmay@aclj−dc.org, cc'd 3 associated attorneys −− The PDF file you docketed contained errors: 1. Do not file Discovery (LcvR 5.2) (jf, ) (Entered: 01/31/2013)
16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Francis J. Manion, :Firm− American Center for Law & Justice, :Address− P. O. Box 60, New Hope, KY 40052. Phone No. − 502−549−7020. Fax No. − 502−549−5252 by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1 Text of Proposed Order Manion PHV Proposed Order)(May, Colby) (Entered: 01/31/2013)
17 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Geoffrey R. Surtees, :Firm− American Center for Law & Justice, :Address− P. O. Box 60, New Hope, KY 40052. Phone No. − 502−549−7020. Fax No. − 502−549−5252 by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1 Text of Proposed Order Surtees PHV Proposed Order)(May, Colby) (Entered: 01/31/2013)
MINUTE ORDER granting 16 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by Francis J. Manion, and finding good cause to grant the motion, the motion is hereby GRANTED. Francis J. Manion may appear and be heard in the above−captioned matter. Signed by Judge

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 6 of 10

01/31/2013 02/04/2013 02/06/2013 02/06/2013 02/07/2013 02/08/2013 02/08/2013
02/11/2013
02/12/2013 02/12/2013 02/12/2013
02/12/2013 02/12/2013

Reggie B. Walton on 1/31/2013. (lcrbw2) (Entered: 01/31/2013)
MINUTE ORDER granting 17 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by Geoffrey R. Surtees, and finding good cause to grant the motion, the motion is hereby GRANTED. Geoffrey R. Surtees may appear and be heard in the above−captioned matter. Signed by Judge Reggie B. Walton on 1/31/2013. (lcrbw2) (Entered: 01/31/2013)
Set/Reset Deadlines: Show Cause in Writing by 2/8/2013; Respond to Show Cause by 2/18/2013. (mpt) (Entered: 02/04/2013)
18 RESPONSE TO ORDER OF THE COURT re 11 Order, filed by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (Attachments: # 1 Exhibit A−−Gov't Motion to Assign Related Appeals in Newland v. Sebelius and Hobby Lobby Stores v. Sebelius)(White, Edward) (Entered: 02/06/2013)
19 NOTICE of Appearance by Erik M. Zimmerman on behalf of All Plaintiffs (Zimmerman, Erik) (Main Document 19 replaced on 2/7/2013) (td, ). (Entered: 02/06/2013)
NOTICE OF ERROR re 19 Notice of Appearance; emailed to ezimmerman@aclj.org, cc'd 7 associated attorneys −− The PDF file you docketed contained errors: 1. When doing fillable documents, please save as a pdf first and then file. (td, ) (Entered: 02/07/2013)
20 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF TREASURY served on 2/6/2013 (May, Colby) (Entered: 02/08/2013)
21 MOTION for Preliminary Injunction and request for oral argument and hearing within 21 days pursuant to LCvR 65.1(d) by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1 Index of Exhibits, # 2 Exhibit A−−Declaration of Francis Gilardi, # 3 Exhibit B−−Declaration of Philip Gilardi, # 4 Exhibit C−−Triune Health Grp v. HHS, No. 1:12−cv−6756, slip op, (N.D. IL 1/3/13), # 5 Text of Proposed Order)(White, Edward). Added MOTION for Order on 2/11/2013 (td, ). (Entered: 02/08/2013)
22 ORDER. Per the attached Order, it is hereby ORDERED that this case is TRANSFERRED to the Calendar and Case Management Committee for reassignment. It is further ORDERED that the portion of this Court's January 29, 2013 Order requiring the defendants to respond to that Order in writing on or before February 18, 2013 is VACATED. Signed by Judge Reggie B. Walton on 2/11/2013. (lcrbw2) (Entered: 02/11/2013)
23 Case randomly reassigned to Judge Ellen S. Huvelle. Judge Reggie B. Walton has determined that this case is not related to 12cv1635 and is no longer assigned to the case. (gt, ) (Entered: 02/12/2013)
24 Case randomly reassigned to Judge Emmet G. Sullivan. Judge Ellen S. Huvelle is in a protracted criminal trial and is no longer assigned to the case. (gt, ) (Entered: 02/12/2013)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 2/12/2013. Defendant's Response to Preliminary Injunction due by 2/25/2013 at 12:00 PM. Plaintiff's Reply due by 2/28/2013 at 12:00 PM. Motion Hearing set for 3/6/2013 at 10:30 AM in Courtroom 24A before Judge Emmet G. Sullivan. Order To Be Presented. (Court Reporter SUSAN TYNER) (mac) (Entered: 02/12/2013)
25 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 02/12/2013)
MINUTE ORDER. The parties are hereby directed to comply with the following briefing schedule. Plaintiffs are directed to deliver to the chambers of the Honorable Emmet G. Sullivan by no later than February 19, 2013 at 3:00 p.m. two copies of their pleadings and exhibits as well as binders containing one copy of the principal points

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 7 of 10

02/21/2013 02/22/2013
02/22/2013 02/25/2013 02/25/2013
02/25/2013 02/28/2013 02/28/2013 03/01/2013 03/03/2013

and authorities relied upon (i.e., counsel should provide copies of principal cases, statutes, regulations, etc. but need not provide copies of cases relied upon merely for the standard of review or other well−established principles). Defendants' opposition to the motion for a preliminary injunction shall be filed by no later than February 25, 2013 at 12:00 p.m. Defendants are directed to deliver to chambers two copies of their pleadings and exhibits and one copy of the principal points and authorities relied upon as described above by no later than February 25, 2013 at 3:00 p.m. Plaintiffs' reply in further support of their motion shall be filed by no later than February 28, 2013 at 12:00 p.m. Plaintiffs shall deliver to chambers two copies of their pleadings and exhibits and one copy of the principal points and authorities relied upon, to the extent not previously provided to the Court, by no later than February 28, 2013 at 3:00 p.m. In view of the Court's finding that a hearing date later than 21 days from the filing of the motion for a preliminary injunction would not prejudice the parties under Local Civil Rule 65.1(d), the Court will hold a hearing on the motion for a preliminary injunction on March 6, 2013 at 10:30 a.m. in Courtroom 24A. Signed by Judge Emmet G. Sullivan on February 12, 2013. (lcegs2) (Entered: 02/12/2013)
26 MOTION for Leave to File AMICUS CURIAE BRIEF by STATE OF OHIO (rdj) (Entered: 02/21/2013)
MINUTE ORDER granting 26 Motion for Leave to File. The amicus curiae brief attached to the motion is hereby deemed filed. It is FURTHER ORDERED that by no later than 3:00 p.m. on February 26, 2013, the State of Ohio shall cause to be delivered to chambers two copies of its pleadings and exhibits as well as binders containing one copy of the principal points and authorities relied upon (i.e., counsel should provide copies of principal cases, statutes, regulations, etc. but need not provide copies of cases relied upon merely for the standard of review or other well−established principles). Signed by Judge Emmet G. Sullivan on February 22, 2013. (lcegs2) (Entered: 02/22/2013)
27 AMICUS BRIEF by STATE OF OHIO. (jf, ) (Entered: 02/25/2013)
Set/Reset Deadlines: Movant (State Of Ohio) to provide Judge's chambers two copies of its pleadings and exhibits as well as binders containing one copy of the principal points and authorities relied upon due by 2/26/2013 at 3:00pm. (mac) (Entered: 02/25/2013)
28 Memorandum in opposition to re 21 MOTION for Preliminary Injunction and request for oral argument and hearing within 21 days pursuant to LCvR 65.1(d) MOTION for Order filed by TIMOTHY F. GEITHNER, KATHLEEN G. SEBELIUS, HILDA L. SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Berwick, Benjamin) (Entered: 02/25/2013)
29 NOTICE of Submission by STATE OF OHIO re Order on Motion for Leave to File,, (Nelson, Frederick) (Entered: 02/25/2013)
30 REPLY to opposition to motion re 21 MOTION for Preliminary Injunction and request for oral argument and hearing within 21 days pursuant to LCvR 65.1(d) MOTION for Order filed by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 02/28/2013)
31 NOTICE OF SUPPLEMENTAL AUTHORITY by TIMOTHY F. GEITHNER, KATHLEEN G. SEBELIUS, HILDA L. SOLIS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Exhibit Briscoe v. Sebelius)(Berwick, Benjamin) (Entered: 02/28/2013)
32 REPLY re 31 NOTICE OF SUPPLEMENTAL AUTHORITY, filed by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (Zimmerman, Erik) (Entered: 03/01/2013)
33 ORDER denying 21 Motion for Preliminary Injunction and canceling March 6, 2013 hearing. Signed by Judge Emmet G. Sullivan on March 3, 2013. (lcegs2) (Entered: 03/03/2013)

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 8 of 10

03/03/2013 03/04/2013
03/05/2013 03/07/2013 03/07/2013
03/11/2013
03/12/2013 03/12/2013 03/14/2013 03/15/2013 03/29/2013
07/05/2013 08/11/2014
08/12/2014

34 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on March 3, 2013. (lcegs2) (Entered: 03/03/2013)
35 NOTICE OF INTERLOCUTORY APPEAL as to 34 Memorandum & Opinion, 33 Order on Motion for Preliminary Injunction, Order on Motion for Order by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. Filing fee $ 455, receipt number 0090−3238619. Fee Status: Fee Paid. Parties have been notified. (White, Edward) (Entered: 03/04/2013)
36 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 35 Notice of Interlocutory Appeal,. (jf, ) (Entered: 03/05/2013)
USCA Case Number 13−5069 for 35 Notice of Interlocutory Appeal, filed by PHILIP M. GILARDI, FRESHWAY LOGISTICS INCORPORATED, FRESH UNLIMITED INCORPORATED, FRANCIS A. GILARDI. (jf, ) (Entered: 03/07/2013)
37 Joint MOTION to Stay district court proceedings pending resolution of Plaintiffs' interlocutory appeal from denial of their motion for a preliminary injunction and issuance of appellate court mandate or until further order of this court by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1 Text of Proposed Order)(White, Edward) (Entered: 03/07/2013)
MINUTE ORDER granting 37 consent motion to stay pending appeal. It is hereby ORDERED that this case is STAYED and ADMINISTRATIVELY CLOSED pending the Circuit Court's resolution of plaintiffs' appeal of this Court's March 3, 2013 Order. Signed by Judge Emmet G. Sullivan on March 11, 2013. (lcegs2) (Entered: 03/11/2013)
Case Stayed (mac) (Entered: 03/12/2013)
38 Supplemental Record on Appeal transmitted to US Court of Appeals re Order on Motion to Stay, ;USCA Case Number 13−5069. (jf, ) (Entered: 03/12/2013)
39 DESIGNATION of Record on Appeal by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI re 35 Notice of Interlocutory Appeal, (jf, ) (Entered: 03/15/2013)
40 Supplemental Record on Appeal transmitted to US Court of Appeals re 39 Designation of Record on Appeal ;USCA Case Number 13−5069. (jf, ) (Entered: 03/15/2013)
41 ORDER of USCA as to 35 Notice of Interlocutory Appeal, filed by PHILIP M. GILARDI, FRESHWAY LOGISTICS INCORPORATED, FRESH UNLIMITED INCORPORATED, FRANCIS A. GILARDI ; USCA Case Number 13−5069. ORDERED, on the court's own motion, that the motion for an injunction pending appeal be granted. (kb, ) (Entered: 04/03/2013)
42 NOTICE of Change of Address by Edward L. White, III (White, Edward) (Entered: 07/05/2013)
MINUTE ORDER. In light of the United States Court of Appeals for the District of Columbia Circuit's mandate, see Case No. 13−5069, Doc. No. 1506830, the parties are directed to file a joint status report. The joint status report shall include the proposed language of the preliminary injunction to be entered by this Court and a recommendation for further proceedings as to the United States Court of Appeals for the District of Columbia Circuit's order that this Court "reconsider the denial of the preliminary injunction as to the individual owners in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)." The parties shall file their joint status report by no later than August 18, 2014. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on August 11, 2014. (lcegs4) (Entered: 08/11/2014)
Set/Reset Deadlines: Individual Recommendation or Joint Status Report due by 8/18/2014. (mac) (Entered: 08/12/2014)

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 9 of 10

08/18/2014 08/18/2014 08/25/2014 09/15/2014 09/16/2014
09/16/2014 09/26/2014 10/03/2014
10/03/2014 10/17/2014 10/20/2014 10/20/2014 12/11/2014

43 STATUS REPORT JOINTLY FILED by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 08/18/2014)
44 ORDER. Signed by Judge Emmet G. Sullivan on August 18, 2014. (lcegs4) (Entered: 08/18/2014)
Set/Reset Deadlines: Joint Status Report due by 9/17/2014. (mac) (Entered: 08/25/2014)
45 STATUS REPORT on behalf of all parties regarding Court Order at Docket Entry 44 by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 09/15/2014)
MINUTE ORDER. The Court has reviewed 45 the parties' joint status report, in which the parties represented that this case should continue to be stayed through September 26, 2014, so that the Plaintiffs have sufficient time to consider Defendants' recent proposal "on how this case should be resolved." In light of this representation, it is hereby ORDERED that all proceedings are STAYED until September 26, 2014. The parties shall submit a joint status report, including a recommendation for further proceedings, by no later than that same date. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on September 16, 2014. (lcegs4) (Entered: 09/16/2014)
Set/Reset Deadlines: Joint Status Report or Individual Recommendation due by 9/26/2014. (mac) (Entered: 09/16/2014)
46 STATUS REPORT filed jointly by the parties in response to Court Minute Order of 9/16/14 by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 09/26/2014)
MINUTE ORDER. The Court has reviewed 46 the joint response filed by the parties. The parties agree that plaintiffs are entitled to judgment in their favor on their RFRA claim, that a permanent injunction of some kind should be entered, and that attorneys' fees and costs should be resolved pursuant to Local Rules 54.1, 54.2. There is a "significant" dispute, however, concerning the nature and scope of the permanent injunction that this Court should enter. The parties both provided their respective positions and proposed orders concerning this dispute. In light of this, the parties are directed to file supplemental memorandum in support of their position. The parties should, among other things, identify the specific language in each proposed permanent injunction that they object to, and provide all relevant authority in support of their position. The parties' supplemental memorandums are due by no later than October 24, 2014. Signed by Judge Emmet G. Sullivan on October 3, 2014. (lcegs4) (Entered: 10/03/2014)
Set/Reset Deadlines: Parties Supplemental Memorandums due by 10/24/2014. (mac) (Entered: 10/03/2014)
47 Joint MOTION for Permanent Injunction and Judgment and Joint Response to Court Order of October 3, 2014, by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI (Attachments: # 1 Text of Proposed Order)(White, Edward) (Entered: 10/17/2014)
48 RESPONSE re Order,,,, filed by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (Attachments: # 1 Text of Proposed Order)(White, Edward) (Entered: 10/20/2014)
49 ORDER granting 47 joint motion for permanent injunction and judgment. Signed by Judge Emmet G. Sullivan on October 20, 2014. (lcegs4) (Entered: 10/20/2014)
Set/Reset Hearings: Status Conference set for 12/17/2014 at 2:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (mac) (Entered: 12/11/2014)

Case: 1:13-cv-104 As of: 03/05/2018 10:33 PM EST 10 of 10

12/11/2014 12/11/2014
01/13/2015 03/27/2015

50 STATUS REPORT Filed Jointly By Plaintiffs and Defendants by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 12/11/2014)
MINUTE ORDER. The Court has reviewed the 50 joint status report filed by the parties, in which the parties recommended that the Court cancel the status hearing scheduled for December 17, 2014. In light of this recommendation, the status hearing scheduled for December 17, 2014 is hereby VACATED. It is FURTHER ORDERED that the parties file a joint status report, including a recommendation for further proceedings, by no later than January 16, 2015. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on December 11, 2014. (lcegs4) (Entered: 12/11/2014)
51 STATUS REPORT Jointly Filed By The Parties by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 01/13/2015)
52 STATUS REPORT Filed Jointly By The Parties by FRESH UNLIMITED INCORPORATED, FRESHWAY LOGISTICS INCORPORATED, FRANCIS A. GILARDI, PHILIP M. GILARDI. (White, Edward) (Entered: 03/27/2015)

 
 General Docket United States Court of Appeals for District of Columbia Circuit

Court of Appeals Docket #: 13-5069 Francis Gilardi, et al v. HHS, et al Appeal From: United States District Court for the District of Columbia Fee Status: Fee Paid

Docketed: 03/05/2013 Termed: 11/01/2013

Case Type Information: 1) Civil US 2) United States 3)

Originating Court Information:

District: 0090-1 : 1:13-cv-00104-EGS

Court Reporter: Susan Tyner

Trial Judge: Emmet G. Sullivan, U.S. District Judge

Date Filed: 01/24/2013

Date Order/Judgment:

Date NOA Filed:

03/03/2013

03/04/2013

Lead: 1:13-cv-00104-EGS

Prior Cases: None

Current Cases: None

Panel Assignment: Panel: JRB HTE ARR Date of Hearing: 09/24/2013

Date of Decision: 11/01/2013

Date Completed: 11/01/2013

Francis A. Gilardi

Plaintiff - Appellant

Carly F. Gammill, Litigation Counsel Direct: 615-415-4822 Email: cgammill@aclj-dc.org Fax: 615-599-5189 [COR NTC Retained] American Center for Law and Justice 625 Bakers Bridge Avenue Suite 105-21 Franklin, TN 37064
Francis J. Manion Direct: 502-549-7020 Email: fmanion@aclj.org [COR NTC Pro Hac Vice]

Philip M. Gilardi

Plaintiff - Appellant

Fresh Unlimited Incorporated, doing business as Freshway Foods
Plaintiff - Appellant

American Center for Law and Justice Firm: 502-549-7020 PO Box 60 New Hope, KY 40052
Colby M. May, Esquire Direct: 202-546-8890 Email: cmmay@aclj-dc.org Fax: 202-544-5172 [COR NTC Retained] American Center for Law and Justice Firm: 202-546-8890 201 Maryland Avenue, NE Washington, DC 20002-5703
Carly F. Gammill, Litigation Counsel Direct: 615-415-4822 [COR NTC Retained] (see above)
Francis J. Manion Direct: 502-549-7020 [COR NTC Pro Hac Vice] (see above)
Colby M. May, Esquire Direct: 202-546-8890 [COR NTC Retained] (see above)
Carly F. Gammill, Litigation Counsel Direct: 615-415-4822 [COR NTC Retained] (see above)
Francis J. Manion Direct: 502-549-7020 [COR NTC Pro Hac Vice] (see above)
Colby M. May, Esquire Direct: 202-546-8890 [COR NTC Retained] (see above)

Freshway Logistics Incorporated Plaintiff - Appellant
v. United States Department of Health and Human Services
Defendant - Appellee

Carly F. Gammill, Litigation Counsel Direct: 615-415-4822 [COR NTC Retained] (see above)
Francis J. Manion Direct: 502-549-7020 [COR NTC Pro Hac Vice] (see above)
Colby M. May, Esquire Direct: 202-546-8890 [COR NTC Retained] (see above)
Alisa B. Klein, Attorney Email: alisa.klein@usdoj.gov [COR LD NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division, Appellate Staff Firm: 202-514-2000 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Mark B. Stern, Attorney Email: mark.stern@usdoj.gov [COR LD NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division, Appellate Staff Firm: 202-514-2000 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Beth S. Brinkmann, Esquire Email: BBrinkmann@cov.com [COR NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division, Appellate Staff Firm: 202-514-2000 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Stuart F. Delery

[COR NTC Gvt US DOJ] U.S. Department of Justice (DOJ) Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] U.S. Attorney's Office (USA) Appellate Division Firm: 202-252-6829 555 4th Street, NW Washington, DC 20530

Kathleen Sebelius, In her official capacity as Secretary of United States Department of Health and Human Services Terminated: 07/02/2014
Defendant - Appellee

Sylvia Mathews Burwell, In her official capacity as Secretary of United States Department of Health and Human Services
Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Gvt US DOJ] (see above)
Mark B. Stern, Attorney [COR LD NTC Gvt US DOJ] (see above)

Beth S. Brinkmann, Esquire [COR NTC Gvt US DOJ] (see above)

Stuart F. Delery [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] (see above)

United States Department of the Treasury Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Gvt US DOJ] (see above)

Mark B. Stern, Attorney [COR LD NTC Gvt US DOJ] (see above)
Beth S. Brinkmann, Esquire [COR NTC Gvt US DOJ] (see above)
Stuart F. Delery [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] (see above)

Jacob J. Lew, In his official capacity as Secretary of the United States Department of the Treasury
Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Gvt US DOJ] (see above)

Mark B. Stern, Attorney [COR LD NTC Gvt US DOJ] (see above)

Beth S. Brinkmann, Esquire [COR NTC Gvt US DOJ] (see above)

Stuart F. Delery [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] (see above)

Department of Labor

Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Gvt US DOJ] (see above)
Mark B. Stern, Attorney [COR LD NTC Gvt US DOJ]

(see above)
Beth S. Brinkmann, Esquire [COR NTC Gvt US DOJ] (see above)
Stuart F. Delery [COR NTC Gvt US DOJ] (see above)
Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] (see above)

Thomas E. Perez, In his official capacity as Secretary Alisa B. Klein, Attorney

of United States Department of Labor

[COR LD NTC Gvt US DOJ]

Defendant - Appellee

(see above)

Mark B. Stern, Attorney [COR LD NTC Gvt US DOJ] (see above)

Beth S. Brinkmann, Esquire [COR NTC Gvt US DOJ] (see above)

Stuart F. Delery [COR NTC Gvt US DOJ] (see above)

Ronald C. Machen, Jr., Esquire, U.S. Attorney [COR NTC Gvt US Attorney] (see above)

Seth D. Harris, In his official capacity as Acting Secretary of United States Department of Labor Terminated: 07/23/2013
Defendant - Appellee
------------------------------

Liberty, Life, and Law Foundation Amicus Curiae for Appella
nt

Deborah Jane Dewart, Attorney Direct: 910-326-4554 Email: debcpalaw@earthlink.net Fax: 877-326-4585 [COR LD NTC Retained] Deborah J. Dewart, Attorney At Law Firm: 910-326-4554 620 East Sabiston Drive Swansboro, NC 28584-4585

National Womens Law Center Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 Email: cdavidow@paulweiss.com [COR LD NTC Retained] Paul, Weiss, Rifkind, Wharton & Garrison LLP Firm: 202-223-7300 2001 K Street, NW Washington, DC 20006

Marcia Devins Greenberger Direct: 202-588-5180 Email: mgreenberger@nwlc.org [COR LD NTC Retained] National Women's Law Center Firm: 202-588-5180 11 Dupont Circle, NW Suite 800 Washington, DC 20036

Archdiocese of Cincinnati Amicus Curiae for Appella
nt

Noel Francisco Direct: 202-879-5485 Email: njfnjf123123@gmail.com Fax: 202-626-1700 [COR LD NTC Retained] Jones Day Firm: 202-879-3939 51 Louisiana Avenue, NW Washington, DC 20001-2113

American Association of University Women Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Association of American Physicians and Surgeons Amicus Curiae for Appella
nt

William Lee Saunders, Jr. Direct: 202-741-4917 Email: william.saunders@aul.org [COR LD NTC Retained] Americans United for Life 655 15th Street, NW Suite 410 Washington, DC 20005

American Federation of State, County and Municipal Employees
Amicus Curiae for Appelle e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

American Association of Pro-Life Obstetricians and Gynecologists
Amicus Curiae for Appella nt

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

Black Women's Health Imperative Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Martha Jane Perkins Direct: 919-968-6308 Email: perkins@healthlaw.org Fax: 919-968-8855 [COR LD NTC Retained] National Health Law Program

200 North Greensboro Street Suite D-13 Carrboro, NC 27510

Christian Medical Association Amicus Curiae for Appella
nt

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

Ibis Reproductive Health Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Catholic Medical Association Amicus Curiae for Appella
nt

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

MergerWatch e

Amicus Curiae for Appelle

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

National Catholic Bioethics Center Amicus Curiae for Appella
nt

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

NARAL Pro-Choice America Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Physicians for Life nt

Amicus Curiae for Appella

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

NARAL Pro-Choice Ohio Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

National Association of Pro Life Nurses Amicus Curiae for Appella
nt

William Lee Saunders, Jr. Direct: 202-741-4917 [COR LD NTC Retained] (see above)

National Organization for Women Foundation Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

State of Ohio nt

Amicus Curiae for Appella

Jennifer L. Pratt, Assistant Attorney General Direct: 614-466-4328 Email: jennifer.pratt@ohioattorneygeneral.go v Fax: 614-995-0266 [COR LD NTC Gvt Non-Federal] Office of the Attorney General, State of Ohio

150 East Gay Street 20th Floor Columbus, OH 43215-0000

Population Connection e

Amicus Curiae for Appelle

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Breast Cancer Prevention Institute Amicus Curiae for Appella
nt

Dorinda Bordlee, Esquire Direct: 504-231-7234 Email: dbordlee@gmail.com [COR LD NTC Retained] Bioethics Defense Fund Firm: 480-483-3597 6811 East Voltaire Avenue Scottsdale, AZ 85254

Planned Parenthood Federation of America Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Polycarp Research Institute Amicus Curiae for Appella
nt

Dorinda Bordlee, Esquire Direct: 504-231-7234 [COR LD NTC Retained] (see above)

Planned Parenthood of Greater Ohio Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180

[COR LD NTC Retained] (see above)

Abortion Breast Cancer Coalition Amicus Curiae for Appella
nt

Dorinda Bordlee, Esquire Direct: 504-231-7234 [COR LD NTC Retained] (see above)

Planned Parenthood Southwest Ohio Region Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Christian Legal Society nt

Amicus Curiae for Appella

Kimberlee Wood Colby Direct: 703-894-1087 Email: kcolby@clsnet.org [COR LD NTC Retained] Christian Legal Society Firm: 855-257-9800 8001 Braddock Road Suite 302 Springfield, VA 22151

Raising Women's Voices for the Health Care We Need
Amicus Curiae for Appelle e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Association of Rescue Gospel Missions Amicus Curiae for Appella
nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

Service Employees International Union Amicus Curiae for Appelle
e

Charles Edward Davidow, Attorney Direct: 202-223-7380 [COR LD NTC Retained] (see above)

Marcia Devins Greenberger Direct: 202-588-5180 [COR LD NTC Retained] (see above)

Prison Fellowship Ministries Amicus Curiae for Appella
nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

Physicians for Reproductive Health Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 Email: bschneider@stroock.com Fax: 212-806-2636 [COR LD NTC Retained] Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038

Association of Christian Schools International Amicus Curiae for Appella
nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

American College of Obstetricians and Gynecologists Bruce Harvey Schneider

Amicus Curiae for Appelle Direct: 212-806-5636

e

[COR LD NTC Retained]

(see above)

National Association of Evangelicals Amicus Curiae for Appella
nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

American Society for Emergency Contraception Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Ethics and Religious Liberty Commission of the Southern Baptist Convention
Amicus Curiae for Appella nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

Association of Reproductive Health Professionals Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

The C12 Group nt

Amicus Curiae for Appella

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

American Society for Reproductive Medicine Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Institutional Religious Freedom Alliance Amicus Curiae for Appella
nt

Kimberlee Wood Colby Direct: 703-894-1087 [COR LD NTC Retained] (see above)

Society for Adolescent Health and Medicine Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Life Legal Defense Foundation Amicus Curiae for Appella
nt

Michael Francis Smith Direct: 202-454-2860 Email: smith@smithpllc.com Fax: 202-747-5630 [COR LD NTC Retained] The Smith Appellate Law Firm Suite 1025 1717 Pennsylvania Avenue, NW Washington, DC 20006

American Medical Womens Association Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Nicanor Pier Austriaco nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 Email: dduncan@umassd.edu Fax: 508-998-9564 [COR LD NTC Retained] 333 Fauce Corner Road North Dartmouth, MA 02747-1252

National Association of Nurse Practitioners in Womens Health
Amicus Curiae for Appelle e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Gregory R Beabout nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Society of Family Planning Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Francis J. Beckwith nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

International Association of Forensic Nurses Amicus Curiae for Appelle
e

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Brian J Benestad nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

James Trussell e

Amicus Curiae for Appelle

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Thomas V. Berg nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Susan F. Wood e

Amicus Curiae for Appelle

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Christopher O. Blum nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Don Downing e

Amicus Curiae for Appelle

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Holly Taylor Coolman nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Kathleen Besinque e

Amicus Curiae for Appelle

Bruce Harvey Schneider Direct: 212-806-5636 [COR LD NTC Retained] (see above)

Patrick G. Derr nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Center for Reproductive Rights Amicus Curiae for Appelle
e

Lisa Schiavo Blatt, Attorney Email: lisa.blatt@apks.com [COR LD NTC Retained] Arnold & Porter Kaye Scholer LLP Firm: 202-942-5000 601 Massachusetts Avenue, NW Washington, DC 20001-3743

Julianna Susan Gonen

Email: jgonen@reprorights.org [COR LD NTC Retained] Center for Reproductive Rights 1634 Eye Street, NW Suite 550 Washington, DC 20006
Robert J. Katerberg Direct: 202-942-5000 Email: Robert.Katerberg@aporter.com [COR LD NTC Retained] Arnold & Porter Kaye Scholer LLP Firm: 202-942-5000 601 Massachusetts Avenue, NW Washington, DC 20001-3743
Andrew Scot Macurdy Email: andrew.macurdy@aporter.com [COR LD NTC Retained] Arnold & Porter Kaye Scholer LLP Firm: 202-942-5000 601 Massachusetts Avenue, NW Washington, DC 20001-3743

John Finley nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

American Public Health Association

Lisa Schiavo Blatt, Attorney

Amicus Curiae for Appelle [COR LD NTC Retained]

e

(see above)

Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy

[COR LD NTC Retained] (see above)

Michael P. Foley nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Guttmacher Institute e

Lisa Schiavo Blatt, Attorney Amicus Curiae for Appelle [COR LD NTC Retained]
(see above)
Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy [COR LD NTC Retained] (see above)

Alfred J. Freddoso nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Family Planning & Reproductive Health Association
Amicus Curiae for Appelle e

Lisa Schiavo Blatt, Attorney [COR LD NTC Retained] (see above)
Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy

[COR LD NTC Retained] (see above)

Michael Gorman nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Latina Institute for Reproductive Health

Lisa Schiavo Blatt, Attorney

Amicus Curiae for Appelle [COR LD NTC Retained]

e

(see above)

Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy [COR LD NTC Retained] (see above)

John S. Grabowski nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Women's Health Network

Lisa Schiavo Blatt, Attorney

Amicus Curiae for Appelle [COR LD NTC Retained]

e

(see above)

Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy

[COR LD NTC Retained] (see above)

Joshua P. Hochschild nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Reproductive Health Technologies Project

Lisa Schiavo Blatt, Attorney

Amicus Curiae for Appelle [COR LD NTC Retained]

e

(see above)

Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy [COR LD NTC Retained] (see above)

Leroy Huizenga nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Lambda Legal Defense and Education Fund, Inc. Amicus Curiae for Appelle
e

Jennifer Carol Pizer Direct: 213-382-7600 Email: jpizer@lambdalegal.org [COR NTC Retained] Lambda Legal Defense and Education Fund, Inc. Firm: 213-382-7600 4221 Wilshire Boulevard Suite 280 Los Angeles, CA 90010-3512

Camilla Bowen Taylor Direct: 312-663-4413 Email: ctaylor@lambdalegal.org Fax: 312-663-4307

[COR NTC Retained] Lambda Legal Defense & Education Fund Firm: 312-663-4413 105 W. Adams Suite 2600 Chicago, IL 60603

Thomas William Ude, Jr., Esquire Email: tude@lambdalegal.org [COR NTC Retained] Lambda Legal Defense and Education Fund, Inc. Firm: 212-809-8585 120 Wall Street 19th Floor New York, NY 10005-3919

Angela McKay Knobel nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Health Law Program Amicus Curiae for Appelle
e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Matthew Levering nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Mexican American Legal Defense and Educational Fund
Amicus Curiae for Appelle e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Bradley V. Lewis nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Asian Pacific American Legal Center Amicus Curiae for Appelle
e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Steven A. Long nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Bruce D. Marshall nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Forward Together e

Amicus Curiae for Appelle

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

William E. May nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Hispanic Medical Association Amicus Curiae for Appelle
e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Kevin T. McMahon nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Ipas

Martha Jane Perkins

Amicus Curiae for Appelle Direct: 919-968-6308

e

[COR LD NTC Retained]

(see above)

Michael Pakaluk nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Sexuality Information and Education Council of the U.S.
Amicus Curiae for Appelle e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Alexander R. Pruss nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Campaign to End AIDS e

Amicus Curiae for Appelle

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Michael Root nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

HIV Law Project e

Amicus Curiae for Appelle

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Christopher O. Tollefsen Amicus Curiae for Appella
nt

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

National Women and AIDS Collective Amicus Curiae for Appelle
e

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Lawrence J. Welch nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Housing Works e

Amicus Curiae for Appelle

Martha Jane Perkins Direct: 919-968-6308 [COR LD NTC Retained] (see above)

Christopher Wolfe nt

Amicus Curiae for Appella

Dwight Gerard Duncan Direct: 800-213-0061 [COR LD NTC Retained] (see above)

Americans United for Separation of Church and State Amicus Curiae for Appelle
e

Ayesha N. Khan, Esquire, Attorney Email: akhan@potomaclaw.com [COR NTC Retained] Americans United for Separation of Church and State Firm: 202-466-3234 1310 L Street, NW Suite 200 Washington, DC 20005

Gregory Michael Lipper, Partner Direct: 202-466-3234 Email: glipper@clintonbrook.com [COR NTC Retained] Americans United for Separation of Church and State Firm: 202-466-3234 1310 L Street, NW Suite 200 Washington, DC 20005

Daniel Mach Direct: 202-548-6604 Email: dmach@aclu.org Fax: 202-546-0738 [COR NTC Retained] American Civil Liberties Union National Legislative Office Firm: 202-544-1681 915 15th Street, NW Washington, DC 20005

Eagle Forum Education & Legal Defense Fund Amicus Curiae for Appella
nt

Lawrence J. Joseph, Attorney Direct: 202-355-9452 Email: ljoseph@larryjoseph.com Fax: 202-318-2254 [COR LD NTC Retained] Law Office of Lawrence J. Joseph Firm: 202-747-1790 1250 Connecticut Avenue

Suite 200 Washington, DC 20036

American Civil Liberties Union

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Anti-Defamation League

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Catholics for Choice e

Ayesha N. Khan, Esquire, Attorney Amicus Curiae for Appelle [COR NTC Retained]
(see above)
Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)
Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Central Conference of American Rabbis

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Hadassah, The Womens Zionist Organization of American, Inc.
Amicus Curiae for Appelle e

Ayesha N. Khan, Esquire, Attorney [COR NTC Retained] (see above)
Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Hindu American Foundation

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Interfaith Alliance Foundation

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)
Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

National Coalition of American Nuns

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

National Council of Jewish Women

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Religious Coalition for Reproductive Choice

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234

[COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Religious Institute e

Ayesha N. Khan, Esquire, Attorney Amicus Curiae for Appelle [COR NTC Retained]
(see above)
Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)
Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Union for Reform Judaism

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Unitarian Universalist Womens Federation

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Women of Reform Judaism

Ayesha N. Khan, Esquire, Attorney

Amicus Curiae for Appelle [COR NTC Retained]

e

(see above)

Gregory Michael Lipper, Partner Direct: 202-466-3234 [COR NTC Retained] (see above)

Daniel Mach Direct: 202-548-6604 [COR NTC Retained] (see above)

Ovarian Cancer National Alliance Amicus Curiae for Appelle
e

Michelle A. Kisloff, Attorney Direct: 202-637-5600 Email: michelle.kisloff@hoganlovells.com Fax: 202-637-5910 [COR LD NTC Retained] Hogan Lovells US LLP Firm: 202-637-5600 Columbia Square 555 13th Street, NW Washington, DC 20004-1109

National Ovarian Cancer Coalition Amicus Curiae for Appelle
e

Michelle A. Kisloff, Attorney Direct: 202-637-5600 [COR LD NTC Retained] (see above)

Bright Pink e

Amicus Curiae for Appelle

Michelle A. Kisloff, Attorney Direct: 202-637-5600 [COR LD NTC Retained] (see above)

Anil K. Sood e

Amicus Curiae for Appelle

Michelle A. Kisloff, Attorney Direct: 202-637-5600 [COR LD NTC Retained] (see above)

R. Alta Charo e

Lisa Schiavo Blatt, Attorney Amicus Curiae for Appelle [COR LD NTC Retained]
(see above)

Julianna Susan Gonen [COR LD NTC Retained] (see above)

Robert J. Katerberg Direct: 202-942-5000 [COR LD NTC Retained] (see above)

Andrew Scot Macurdy [COR LD NTC Retained] (see above)

Francis A. Gilardi; Philip M. Gilardi; Fresh Unlimited Incorporated, doing business as Freshway Foods; Freshway Logistics Incorporated,
Plaintiffs - Appellants
v.
United States Department of Health and Human Services; Sylvia Mathews Burwell, In her official capacity as Secretary of United States Department of Health and Human Services; United States Department of the Treasury; Jacob J. Lew, In his official capacity as Secretary of the United States Department of the Treasury; Department of Labor; Thomas E. Perez, In his official capacity as Secretary of United States Department of Labor,
Defendants - Appellees
------------------------------
Liberty, Life, and Law Foundation,
Amicus Curiae for Appellant
National Womens Law Center,
Amicus Curiae for Appellee
Archdiocese of Cincinnati,
Amicus Curiae for Appellant
American Association of University Women,
Amicus Curiae for Appellee
Association of American Physicians and Surgeons,

Amicus Curiae for Appellant American Federation of State, County and Municipal Employees,
Amicus Curiae for Appellee American Association of Pro-Life Obstetricians and Gynecologists,
Amicus Curiae for Appellant Black Women's Health Imperative,
Amicus Curiae for Appellee Christian Medical Association,
Amicus Curiae for Appellant Ibis Reproductive Health,
Amicus Curiae for Appellee Catholic Medical Association,
Amicus Curiae for Appellant MergerWatch,
Amicus Curiae for Appellee National Catholic Bioethics Center,
Amicus Curiae for Appellant NARAL Pro-Choice America,
Amicus Curiae for Appellee Physicians for Life,
Amicus Curiae for Appellant NARAL Pro-Choice Ohio,
Amicus Curiae for Appellee National Association of Pro Life Nurses,
Amicus Curiae for Appellant National Organization for Women Foundation,
Amicus Curiae for Appellee

State of Ohio, Amicus Curiae for Appellant
Population Connection, Amicus Curiae for Appellee
Breast Cancer Prevention Institute, Amicus Curiae for Appellant
Planned Parenthood Federation of America, Amicus Curiae for Appellee
Polycarp Research Institute, Amicus Curiae for Appellant
Planned Parenthood of Greater Ohio, Amicus Curiae for Appellee
Abortion Breast Cancer Coalition, Amicus Curiae for Appellant
Planned Parenthood Southwest Ohio Region, Amicus Curiae for Appellee
Christian Legal Society, Amicus Curiae for Appellant
Raising Women's Voices for the Health Care We Need, Amicus Curiae for Appellee
Association of Rescue Gospel Missions, Amicus Curiae for Appellant
Service Employees International Union, Amicus Curiae for Appellee
Prison Fellowship Ministries, Amicus Curiae for Appellant
Physicians for Reproductive Health, Amicus Curiae for Appellee

Association of Christian Schools International, Amicus Curiae for Appellant
American College of Obstetricians and Gynecologists, Amicus Curiae for Appellee
National Association of Evangelicals, Amicus Curiae for Appellant
American Society for Emergency Contraception, Amicus Curiae for Appellee
Ethics and Religious Liberty Commission of the Southern Baptist Convention, Amicus Curiae for Appellant
Association of Reproductive Health Professionals, Amicus Curiae for Appellee
The C12 Group, Amicus Curiae for Appellant
American Society for Reproductive Medicine, Amicus Curiae for Appellee
Institutional Religious Freedom Alliance, Amicus Curiae for Appellant
Society for Adolescent Health and Medicine, Amicus Curiae for Appellee
Life Legal Defense Foundation, Amicus Curiae for Appellant
American Medical Womens Association, Amicus Curiae for Appellee
Nicanor Pier Austriaco, Amicus Curiae for Appellant
National Association of Nurse Practitioners in Womens Health,

Amicus Curiae for Appellee Gregory R Beabout,
Amicus Curiae for Appellant Society of Family Planning,
Amicus Curiae for Appellee Francis J. Beckwith,
Amicus Curiae for Appellant International Association of Forensic Nurses,
Amicus Curiae for Appellee Brian J Benestad,
Amicus Curiae for Appellant James Trussell,
Amicus Curiae for Appellee Thomas V. Berg,
Amicus Curiae for Appellant Susan F. Wood,
Amicus Curiae for Appellee Christopher O. Blum,
Amicus Curiae for Appellant Don Downing,
Amicus Curiae for Appellee Holly Taylor Coolman,
Amicus Curiae for Appellant Kathleen Besinque,
Amicus Curiae for Appellee Patrick G. Derr,
Amicus Curiae for Appellant Center for Reproductive Rights,

Amicus Curiae for Appellee John Finley,
Amicus Curiae for Appellant American Public Health Association,
Amicus Curiae for Appellee Michael P. Foley,
Amicus Curiae for Appellant Guttmacher Institute,
Amicus Curiae for Appellee Alfred J. Freddoso,
Amicus Curiae for Appellant National Family Planning & Reproductive Health Association,
Amicus Curiae for Appellee Michael Gorman,
Amicus Curiae for Appellant National Latina Institute for Reproductive Health,
Amicus Curiae for Appellee John S. Grabowski,
Amicus Curiae for Appellant National Women's Health Network,
Amicus Curiae for Appellee Joshua P. Hochschild,
Amicus Curiae for Appellant Reproductive Health Technologies Project,
Amicus Curiae for Appellee Leroy Huizenga,
Amicus Curiae for Appellant

Lambda Legal Defense and Education Fund, Inc., Amicus Curiae for Appellee
Angela McKay Knobel, Amicus Curiae for Appellant
National Health Law Program, Amicus Curiae for Appellee
Matthew Levering, Amicus Curiae for Appellant
Mexican American Legal Defense and Educational Fund, Amicus Curiae for Appellee
Bradley V. Lewis, Amicus Curiae for Appellant
Asian Pacific American Legal Center, Amicus Curiae for Appellee
Steven A. Long; Bruce D. Marshall, Amici Curiae for Appellant
Forward Together, Amicus Curiae for Appellee
William E. May, Amicus Curiae for Appellant
National Hispanic Medical Association, Amicus Curiae for Appellee
Kevin T. McMahon, Amicus Curiae for Appellant
Ipas, Amicus Curiae for Appellee
Michael Pakaluk, Amicus Curiae for Appellant

Sexuality Information and Education Council of the U.S., Amicus Curiae for Appellee
Alexander R. Pruss, Amicus Curiae for Appellant
Campaign to End AIDS, Amicus Curiae for Appellee
Michael Root, Amicus Curiae for Appellant
HIV Law Project, Amicus Curiae for Appellee
Christopher O. Tollefsen, Amicus Curiae for Appellant
National Women and AIDS Collective, Amicus Curiae for Appellee
Lawrence J. Welch, Amicus Curiae for Appellant
Housing Works, Amicus Curiae for Appellee
Christopher Wolfe, Amicus Curiae for Appellant
Americans United for Separation of Church and State, Amicus Curiae for Appellee
Eagle Forum Education & Legal Defense Fund, Amicus Curiae for Appellant
American Civil Liberties Union; Anti-Defamation League; Catholics for Choice; Central Conference of American Rabbis; Hadassah, The Womens Zionist Organization of American, Inc.; Hindu American Foundation; Interfaith Alliance Foundation; National Coalition of American Nuns; National Council of Jewish Women; Religious Coalition for Reproductive Choice; Religious Institute; Union for Reform Judaism; Unitarian Universalist Womens Federation; Women of Reform Judaism; Ovarian Cancer National Alliance; National Ovarian Cancer Coalition; Bright Pink; Anil K. Sood; R. Alta Charo,

Amici Curiae for Appellee

03/05/2013

US CIVIL CASE docketed. [13-5069] [Entered: 03/05/2013 04:33 PM]

03/05/2013
38 pg, 206.79 KB

NOTICE OF INTERLOCUTORY APPEAL filed [1423735] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi seeking review of a decision by the U.S. District Court in 1:13-cv-00104-EGS. Assigned USCA Case Number [13-5069] [Entered: 03/05/2013 04:34 PM]

03/05/2013
1 pg, 390.06 KB

ENTRY OF APPEARANCE filed [1423756] by Alisa B. Klein and co-counsel Mark B. Stern on behalf of Appellees DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA. [135069] (Klein, Alisa) [Entered: 03/05/2013 06:27 PM]

03/05/2013
1 pg, 55.86 KB

ENTRY OF APPEARANCE filed [1423757] by Colby M. May and co-counsel Carly F. Gammill on behalf of Appellants Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi. [13-5069] (May, Colby) [Entered: 03/05/2013 06:41 PM]

03/06/2013
95 pg, 2.21 MB

EMERGENCY MOTION filed [1423810] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi Emergency Motion for Injunction Pending Appeal before April 1, 2013, and to Expedite Appeal. (Response to Motion served by mail due on 03/21/2013) [Service Date: 03/06/2013 by CM/ECF NDA] Pages: 16-20. [13-5069] (May, Colby) [Entered: 03/06/2013 08:07 PM]

03/06/2013
6 pg, 51.06 KB

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES FILED [1423811] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/06/2013 ] [13-5069] (May, Colby) [Entered: 03/06/2013 08:10 PM]

03/06/2013
29 pg, 104.9 KB

UNDERLYING DECISION IN CASE submitted [1423812] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/06/2013 ] [13-5069] (May, Colby) [Entered: 03/06/2013 08:12 PM]

03/06/2013
3 pg, 83.16 KB

TRANSCRIPT STATUS REPORT [1423813] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/06/2013 ]. Status of

Transcripts: Final - No transcripts are needed for the appeal. [135069] (May, Colby) [Entered: 03/06/2013 08:15 PM]

03/06/2013
5 pg, 150.92 KB

DOCKETING STATEMENT FILED [1423814] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/06/2013 ] [135069] (May, Colby) [Entered: 03/06/2013 08:17 PM]

03/06/2013
3 pg, 29.29 KB

STATEMENT FILED [1423815] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi with Disclosure Listing [Service Date: 03/06/2013 ] [13-5069] (May, Colby) [Entered: 03/06/2013 08:19 PM]

03/07/2013
2 pg, 44.5 KB

CLERK'S ORDER filed [1423844] directing party to file initial submissions: APPELLANT statement of issues due 04/08/2013. APPELLANT deferred appendix statement due 04/08/2013. APPELLANT procedural motions due 04/08/2013. APPELLANT dispositive motions due 04/22/2013; directing party to file initial submissions: APPELLEE certificate as to parties, etc. due 04/08/2013. APPELLEE procedural motions due 04/08/2013. APPELLEE dispositive motions due 04/22/2013 [13-5069] [Entered: 03/07/2013 09:39 AM]

03/07/2013
3 pg, 28.49 KB

STATEMENT OF INTENT REGARDING APPENDIX DEFERRAL FILED [1423993] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/07/2013 ] Intent: AppxNotDeferred [135069] (May, Colby) [Entered: 03/07/2013 04:31 PM]

03/07/2013
4 pg, 33.07 KB

STATEMENT OF ISSUES FILED [1423997] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 03/07/2013 ] [13-5069] (May, Colby) [Entered: 03/07/2013 04:33 PM]

03/11/2013
29 pg, 154.72 KB

RESPONSE IN OPPOSITION FILED [1424499] by DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA to motion for other relief [1423810-2] [Service Date: 03/11/2013 by CM/ECF NDA] Pages: 16-20. [13-5069] (Klein, Alisa) [Entered: 03/11/2013 12:57 PM]

03/11/2013
2 pg, 80.63 KB

LETTER FILED [1424561] by DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA regarding oral argument matter [Letter advising the Court of unavailability for oral argument on May 16, 2013] [Service Date: 03/11/2013 ] [135069] (Klein, Alisa) [Entered: 03/11/2013 03:12 PM]

03/12/2013
18 pg, 87.08 KB

EMERGENCY REPLY FILED [1424822] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi to response [Service Date: 03/12/2013 by CM/ECF NDA] Pages: 1-10. [13-5069] (May, Colby) [Entered: 03/12/2013 02:12 PM]

03/12/2013
12 pg, 88.62 KB

NOTICE [1424881] filed from Clerk, District Court re: MINUTE ORDER granting consent motion to stay pending appeal. It is hereby ORDERED that this case is STAYED and ADMINISTRATIVELY CLOSED pending the Circuit Court's resolution of plaintiffs' appeal of this Court's March 3, 2013 Order. Signed by Judge Emmet G. Sullivan on March 11, 2013. (Entered: 03/11/2013). [13-5069] [Entered: 03/12/2013 04:08 PM]

03/14/2013
23 pg, 151.92 KB

EMERGENCY LETTER FILED [1425378] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi pursuant to FRAP 28j advising of additional authorities [Service Date: 03/14/2013 ] [13-5069] (May, Colby) [Entered: 03/14/2013 01:47 PM]

03/14/2013
72 pg, 537.31 KB

EMERGENCY LETTER FILED [1425430] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi pursuant to FRAP 28j advising of additional authorities [Service Date: 03/14/2013 ] [13-5069] (May, Colby) [Entered: 03/14/2013 03:32 PM]

03/15/2013

NOTICE [1425768] filed from Clerk, District Court of Plaintiff's

13 pg, 108.29 KB Designation of Record on Appeal. [13-5069] [Entered: 03/15/2013

05:16 PM]

03/21/2013
2 pg, 49.34 KB

PER CURIAM ORDER filed [1426642] denying the motion for injunction [1423810-2]. It is FURTHER ORDERED that the following briefing schedule will apply: APPELLANT Brief due 04/30/2013. Appendix due 04/30/2013. APPELLEE Brief due on 05/30/2013. APPELLANT Reply Brief due 06/13/2013. The Clerk is directed to calendar this case for oral argument on an appropriate date in September 2013. It is FURTHER ORDERED, on the court's own motion, that the case be scheduled for oral argument on the same day and before the same panel as Tyndale House Publishers, Inc. v. Sebelius, No. 13-5018. Before Judges: Rogers, Tatel and Brown*. (Judge Brown would grant the emergency motion for an injunction pending appeal) [13-5069] [Entered: 03/21/2013 03:10 PM]

03/25/2013
31 pg, 286.5 KB

EMERGENCY PETITION filed [1427240] by Appellants Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi for rehearing en banc. [Service

Date: 03/25/2013 by CM/ECF NDA] Pages: 11-15. [13-5069] (May, Colby) [Entered: 03/25/2013 05:00 PM]

03/29/2013
1 pg, 39.42 KB

PER CURIAM ORDER filed [1428119] reconsidering order [1426642-3]; granting motion for an injunction pending appeal [1423810-2]. The portion of the March 21, 2013 order setting forth the briefing schedule and scheduling the case for oral argument remains in effect. Before Judges: Rogers, Tatel and Brown. [13-5069] [Entered: 03/29/2013 04:22 PM]

03/29/2013
1 pg, 39.69 KB

PER CURIAM ORDER, En Banc, filed [1428120] dismissing as moot petition for rehearing en banc [1427240-2]. Before Judges: Garland, Henderson, Rogers, Tatel, Brown, Griffith and Kavanaugh. [13-5069] [Entered: 03/29/2013 04:26 PM]

04/23/2013
2 pg, 21.32 KB

NOTICE FILED [1432070] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi CONSENT TO FILING OF AMICUS BRIEFS. [Service Date: 04/23/2013 ] [13-5069] (May, Colby) [Entered: 04/23/2013 08:55 AM]

04/24/2013
2 pg, 14.02 KB

MODIFIED PARTY FILER--NOTICE filed [1432358] by Liberty, Life, and Law Foundation of intention to participate as amicus curiae. [Disclosure Listing: Not Attached] [Service Date: 04/24/2013 ] [13-5069]--[Edited 04/24/2013 by LMC] (Dewart, Deborah) [Entered: 04/24/2013 12:13 PM]

04/30/2013

APPELLANT BRIEF [1433351] filed by Fresh Unlimited

110 pg, 909.66 KB Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi

and Philip M. Gilardi [Service Date: 04/30/2013 ] Length of Brief:

13,100. [13-5069] (May, Colby) [Entered: 04/30/2013 11:32 AM]

04/30/2013
95 pg, 6.35 MB

JOINT APPENDIX [1433353] filed [Volumes: 1] [Service Date: 04/30/2013 ] [13-5069] (May, Colby) [Entered: 04/30/2013 11:33 AM]

04/30/2013
4 pg, 44.76 KB

UNOPPOSED MOTION filed [1433500] by DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA to extend time to file brief to 06/07/2013. [Service Date: 04/30/2013 ] Pages: 110. [13-5069] (Klein, Alisa) [Entered: 04/30/2013 04:27 PM]

05/02/2013
1 pg, 39.11 KB

CLERK'S ORDER filed [1433926] granting appellee's unopposed motion to extend time [1433500-2], The following revised briefing schedule will now apply: APPELLEE Brief due on 06/07/2013. APPELLANT Reply Brief due 06/21/2013 [13-5069] [Entered: 05/02/2013 10:39 AM]

05/02/2013
4 pg, 90.03 KB

MODIFIED PARTY FILER--NOTICE filed [1434133] by Archdiocese of Cincinnati of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/02/2013 ] [13-5069]--[Edited 05/06/2013 by LMC] (Francisco, Noel) [Entered: 05/02/2013 05:23 PM]

05/03/2013
5 pg, 101.69 KB

MODIFIED PARTY FILER--NOTICE filed [1434162] by Assoc. of American Physicians & Surgeons, American Assoc. of Pro-Life Obstetricians & Gynecologists, Christian Medical Assoc., Catholic Medical Assoc., The National Catholic Bioethics Center, Physicians for Life, and National Assoc. of Pro Life Nurses of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/03/2013 ] [13-5069]--[Edited 05/06/2013 by LMC] (Saunders, William) [Entered: 05/03/2013 09:13 AM]

05/06/2013
48 pg, 110.97 KB

CONSENT AMICUS FOR APPELLANT BRIEF [1434330] filed by Liberty, Life, and Law Foundation [Service Date: 05/06/2013 ] Length of Brief: 6,894 Words. [13-5069] (Dewart, Deborah) [Entered: 05/06/2013 08:06 AM]

05/06/2013
2 pg, 74.23 KB

INCORRECT DOCKET ENTRY-DISREGARD-incorrect PDF attached-NOTICE filed [1434428] by Association of Gospel Rescue Missions, Prison Fellow Ministries, Assoc of Christian Schools Intl, Natl Assoc of Evangelicals, Ethics & Religious Liberty Comm of the Southern Baptist Convention, Christian Legal Society, C12 Group, Institl Rel Freedom Allnc of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/06/2013 ] [13-5069] --[Edited 05/06/2013 by LMC] (Colby, Kimberlee) [Entered: 05/06/2013 01:16 PM]

05/06/2013
2 pg, 29.43 KB

MODIFIED PARTY FILER--NOTICE filed [1434451] by State of Ohio of intention to participate as amicus curiae. [Disclosure Listing: Not Applicable to this Party] [Service Date: 05/06/2013 ] [13-5069]--[Edited 05/06/2013 by LMC] (Pratt, Jennifer) [Entered: 05/06/2013 02:30 PM]

05/06/2013
3 pg, 99.19 KB

MODIFIED PARTY FILER--NOTICE filed [1434479] by Abortion Breast Cancer Coalition, Polycarp Research Institute and Breast Cancer Prevention Institute of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/06/2013 ] [13-5069]--[Edited 05/06/2013 by LMC] (Bordlee, Dorinda) [Entered: 05/06/2013 03:22 PM]

05/06/2013
9 pg, 56.18 KB

MODIFIED PARTY FILER--NOTICE filed [1434496] by Institutional Religious Freedom Alliance, The C12 Group, Ethics and Religious Liberty Commission of the Southern Baptist

Convention, National Association of Evangelicals, Association of Christian Schools International, Prison Fellowship Ministries, Association of Rescue Gospel Missions and Christian Legal Society of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/06/2013 ] [13-5069]--[Edited 05/06/2013 by LMC] (Colby, Kimberlee) [Entered: 05/06/2013 03:56 PM]

05/06/2013
2 pg, 29.68 KB

CERTIFICATE OF SERVICE [1434498] to notice to participate as amicus curiae [1434451-2] filed by State of Ohio. [13-5069] (Pratt, Jennifer) [Entered: 05/06/2013 04:03 PM]

05/06/2013
4 pg, 19.81 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1434531] by Life Legal Defense Foundation of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/06/2013 ] [13-5069]--[Edited 05/07/2013 by LMC] (Smith, Michael) [Entered: 05/06/2013 05:04 PM]

05/07/2013
47 pg, 325.33 KB

MODIFIED PARTY FILER--AMICUS FOR APPELLANT BRIEF [1434567] filed by American Association of Pro-Life Obstetricians and Gynecologists, Association of American Physicians & Surgeons, Catholic Medical Association, Christian Medical Association, National Association of Pro Life Nurses, National Catholic Bioethics Center and Physicians for Life [Service Date: 05/07/2013 ] Length of Brief: 6,967 words. [135069]--[Edited 05/07/2013 by LMC] (Saunders, William) [Entered: 05/07/2013 09:02 AM]

05/07/2013
6 pg, 101.98 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1434595] by Christopher Wolfe, Lawrence J. Welch, Christopher O. Tollefsen, Michael Root, Alexander R. Pruss, Michael Pakaluk, Kevin T. McMahon, William E. May, Bruce D. Marshall, Steven A. Long, Bradley V. Lewis, Matthew Levering, Angela McKay Knobel, Leroy Huizenga, Joshua P. Hochschild, John S. Grabowski, Michael Gorman, Alfred J. Freddoso, Michael P. Foley, John Finley, Patrick G. Derr, Holly Taylor Coolman, Christopher O. Blum, Thomas V. Berg, Brian J Benestad, Francis J. Beckwith, Gregory R Beabout and Rev. Nicanor Pier Austriaco[Edited 05/07/2013 by LMC] (Duncan, Dwight) [Entered: 05/07/2013 10:04 AM]

05/07/2013

AMICUS FOR APPELLANT BRIEF [1434668] filed by State of

45 pg, 191.64 KB Ohio [Service Date: 05/07/2013 ] Length of Brief: 6946 words.

[13-5069] (Pratt, Jennifer) [Entered: 05/07/2013 12:19 PM]

05/07/2013

INCORRECT DOCKET ENTRY-DISREGARD--

52 pg, 206.51 KB CONSENT AMICUS FOR APPELLANT BRIEF [1434718] filed

by Rev. Nicanor Pier Austriaco, Gregory R Beabout, Francis J. Beckwith, Brian J Benestad, Thomas V. Berg, Christopher O. Blum, Holly Taylor Coolman, Patrick G. Derr, John Finley, Michael P. Foley, Alfred J. Freddoso, Michael Gorman, John S. Grabowski, Joshua P. Hochschild, Leroy Huizenga, Angela McKay Knobel, Matthew Levering, Bradley V. Lewis, Steven A. Long, Bruce D. Marshall, William E. May, Kevin T. McMahon, Michael Pakaluk, Alexander R. Pruss, Michael Root, Christopher O. Tollefsen, Lawrence J. Welch and Christopher Wolfe [Service Date: 05/07/2013 ] Length of Brief: 6864 Words. [13-5069]-[Edited 05/07/2013 by LMC] (Duncan, Dwight) [Entered: 05/07/2013 02:07 PM]

05/07/2013
39 pg, 306.94 KB

CONSENT AMICUS FOR APPELLANT BRIEF [1434734] filed by Life Legal Defense Foundation [Service Date: 05/07/2013 ] Length of Brief: 5,715 words. [13-5069] (Smith, Michael) [Entered: 05/07/2013 02:44 PM]

05/07/2013
48 pg, 236.01 KB

CONSENT AMICUS FOR APPELLANT BRIEF [1434769] filed by Archdiocese of Cincinnati [Service Date: 05/07/2013 ] Length of Brief: 6,997 words. [13-5069] (Francisco, Noel) [Entered: 05/07/2013 03:38 PM]

05/07/2013
52 pg, 206.96 KB

CORRECTED AMICUS FOR APPELLANT BRIEF [1434777] filed by Rev. Nicanor Pier Austriaco, Gregory R Beabout, Francis J. Beckwith, Brian J Benestad, Thomas V. Berg, Christopher O. Blum, Holly Taylor Coolman, Patrick G. Derr, John Finley, Michael P. Foley, Alfred J. Freddoso, Michael Gorman, John S. Grabowski, Joshua P. Hochschild, Leroy Huizenga, Angela McKay Knobel, Matthew Levering, Bradley V. Lewis, Steven A. Long, Bruce D. Marshall, William E. May, Kevin T. McMahon, Michael Pakaluk, Alexander R. Pruss, Michael Root, Christopher O. Tollefsen, Lawrence J. Welch and Christopher Wolfe [Service Date: 05/07/2013 ] Length of Brief: 6864 Words. [13-5069] (Duncan, Dwight) [Entered: 05/07/2013 03:49 PM]

05/07/2013
5 pg, 55.1 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1434791] by Eagle Forum Education & Legal Defense Fund of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 05/07/2013 ] [13-5069]--[Edited 05/07/2013 by LMC] (Joseph, Lawrence) [Entered: 05/07/2013 04:08 PM]

05/07/2013
1 pg, 58.45 KB

ENTRY OF APPEARANCE filed [1434792] by Noel J. Francisco on behalf of Amicus Curiae for Appellant Archdiocese of Cincinnati. [13-5069] (Francisco, Noel) [Entered: 05/07/2013 04:09 PM]

05/07/2013
52 pg, 179.46 KB

AMICUS FOR APPELLANT BRIEF [1434794] filed by Association of Christian Schools International, Association of Rescue Gospel Missions, Christian Legal Society, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, National Association of Evangelicals, Prison Fellowship Ministries and The C12 Group [Service Date: 05/07/2013 ] Length of Brief: 6995 words. [13-5069] (Colby, Kimberlee) [Entered: 05/07/2013 04:20 PM]

05/07/2013
37 pg, 326.46 KB

AMICUS FOR APPELLANT BRIEF [1434799] filed by Abortion Breast Cancer Coalition, Breast Cancer Prevention Institute and Polycarp Research Institute [Service Date: 05/07/2013 ] Length of Brief: 5,623 Words. [13-5069] (Bordlee, Dorinda) [Entered: 05/07/2013 04:38 PM]

05/07/2013
1 pg, 388.5 KB

ENTRY OF APPEARANCE filed [1434804] by Lawrence J. Joseph on behalf of Amicus Curiae for Appellant Eagle Forum Education & Legal Defense Fund. [13-5069] (Joseph, Lawrence) [Entered: 05/07/2013 05:04 PM]

05/07/2013
43 pg, 132.32 KB

AMICUS FOR APPELLANT BRIEF [1434822] filed by Eagle Forum Education & Legal Defense Fund [Service Date: 05/07/2013 ] Length of Brief: 6880 words. [13-5069] (Joseph, Lawrence) [Entered: 05/07/2013 11:34 PM]

06/07/2013
63 pg, 298.88 KB

APPELLEE BRIEF [1440124] filed by DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA [Service Date: 06/07/2013 ] Length of Brief: 10,781 words. [13-5069] (Klein, Alisa) [Entered: 06/07/2013 12:51 PM]

06/12/2013
5 pg, 20.96 KB

MODIFIED PARTY FILER--NOTICE filed [1440993] by The National Women's Law Center; AAUW; American Federation of State, County and Municipal Employees; Black Women's Health Imperative; Ibis Reproductive Health; Merger Watch; NARAL Pro-Choice America; NARAL Pro-Choice Ohio, et al. of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/12/2013 ] [13-5069]--[Edited 06/13/2013 by LMC] (Davidow, Charles) [Entered: 06/12/2013 05:28 PM]

06/13/2013
4 pg, 15.58 KB

MODIFIED PARTY FILER--NOTICE filed [1441053] by Kathleen Besinque, Don Downing, Susan F. Wood, James Trussell, International Association of Forensic Nurses, Society of Family Planning, National Association of Nurse Practitioners in Womens Health, American Medical Womens Association, Society for Adolescent Health and Medicine, American Society for Reproductive Medicine, Association of Reproductive Health

06/13/2013
4 pg, 94.02 KB
06/13/2013
2 pg, 420.59 KB
06/13/2013
06/13/2013
33 pg, 74.68 KB

Professionals, American Society for Emergency Contraception, American College of Obstetricians and Gynecologists and Physicians for Reproductive Health of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/13/2013 ] [13-5069]--[Edited 06/13/2013 by LMC] (Schneider, Bruce) [Entered: 06/13/2013 11:37 AM]
MODIFIED PARTY FILER--CONSENT NOTICE filed [1441077] by Reproductive Health Technologies Project, National Women's Health Network, National Latina Institute for Reproductive Health, National Family Planning & Reproductive Health Association, Guttmacher Institute, American Public Health Association and Center for Reproductive Rights of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/13/2013 ] [13-5069]--[Edited 06/13/2013 by LMC] (Blatt, Lisa) [Entered: 06/13/2013 12:59 PM]
ENTRY OF APPEARANCE filed [1441118] by Bruce H. Schneider on behalf of Amici Curiae for Appellee American College of Obstetricians and Gynecologists, American Medical Womens Association, American Society for Emergency Contraception, American Society for Reproductive Medicine, Association of Reproductive Health Professionals, Kathleen Besinque, Don Downing, International Association of Forensic Nurses, National Association of Nurse Practitioners in Womens Health, Physicians for Reproductive Health, Society for Adolescent Health and Medicine, Society of Family Planning, James Trussell and Susan F. Wood. [13-5069] (Schneider, Bruce) [Entered: 06/13/2013 03:18 PM]
INCORRECT DOCKET ENTRY-DISREGARD-corrected brief filed-AMICUS FOR APPELLEE BRIEF [1441124] filed by American College of Obstetricians and Gynecologists, American Medical Womens Association, American Society for Emergency Contraception, American Society for Reproductive Medicine, Association of Reproductive Health Professionals, Kathleen Besinque, Don Downing, International Association of Forensic Nurses, National Association of Nurse Practitioners in Womens Health, Physicians for Reproductive Health, Society for Adolescent Health and Medicine, Society of Family Planning, James Trussell and Susan F. Wood [Service Date: 06/13/2013 ] [13-5069]--[Edited 06/14/2013 by LMC] (Schneider, Bruce) [Entered: 06/13/2013 03:30 PM]
CORRECTED AMICUS FOR APPELLEE BRIEF [1441158] filed by American College of Obstetricians and Gynecologists, American Medical Womens Association, American Society for

Emergency Contraception, Association of Reproductive Health Professionals, Kathleen Besinque, Don Downing, International Association of Forensic Nurses, National Association of Nurse Practitioners in Womens Health, Physicians for Reproductive Health, Society for Adolescent Health and Medicine, Society of Family Planning, James Trussell and Susan F. Wood [Service Date: 06/13/2013 ] [13-5069] (Schneider, Bruce) [Entered: 06/13/2013 05:11 PM]

06/13/2013
4 pg, 113.17 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1441159] by Lambda Legal Defense and Education Fund, Inc. of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/13/2013 ] [13-5069]--[Edited 06/14/2013 by LMC] (Ude, Thomas) [Entered: 06/13/2013 05:18 PM]

06/13/2013
4 pg, 223.66 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1441161] by Housing Works, National Women and AIDS Collective, HIV Law Project, Campaign to End AIDS, Sexuality Information and Education Council of the U.S., Ipas, National Hispanic Medical Association, Forward Together, Black Womens Health Imperative, Asian Pacific American Legal Center, Mexican American Legal Defense and Educational Fund and National Health Law Program of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/13/2013 ] [13-5069]--[Edited 06/14/2013 by LMC] (Perkins, Martha) [Entered: 06/13/2013 08:32 PM]

06/14/2013
48 pg, 408.39 KB

AMICUS FOR APPELLEE BRIEF [1441322] filed by American Association of University Women, American Federation of State, County and Municipal Employees, Black Women's Health Imperative, Ibis Reproductive Health, MergerWatch, NARAL Pro-Choice America, NARAL Pro-Choice Ohio, National Organization for Women Foundation, National Womens Law Center, Planned Parenthood Federation of America, Planned Parenthood Southwest Ohio Region, Planned Parenthood of Greater Ohio, Population Connection, Raising Women's Voices for the Health Care We Need and Service Employees International Union [Service Date: 06/14/2013 ] Length of Brief: 6,671 words. [13-5069] (Davidow, Charles) [Entered: 06/14/2013 01:02 PM]

06/14/2013
5 pg, 89.28 KB

MODIFIED PARTY FILER--NOTICE filed [1441324] by Women of Reform Judaism, Unitarian Universalist Womens Federation, Union for Reform Judaism, Religious Institute, Religious Coalition for Reproductive Choice, National Council of Jewish Women, National Coalition of American Nuns, Interfaith Alliance Foundation, Hindu American Foundation, Hadassah, The

Womens Zionist Organization of American, Inc., Central Conference of American Rabbis, Catholics for Choice, AntiDefamation League, American Civil Liberties Union and Americans United for Separation of Church and State of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/14/2013 ] [13-5069]--[Edited 06/14/2013 by LMC] (Lipper, Gregory) [Entered: 06/14/2013 01:11 PM]

06/14/2013
5 pg, 35.7 KB

MODIFIED PARTY FILER--CONSENT NOTICE filed [1441337] by Dr. Anil K. Sood, Bright Pink, National Ovarian Cancer Coalition and Ovarian Cancer National Alliance of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 06/14/2013 ] [13-5069]--[Edited 06/14/2013 by LMC] (Kisloff, Michelle) [Entered: 06/14/2013 01:34 PM]

06/14/2013
49 pg, 168.47 KB

AMICUS FOR APPELLEE BRIEF [1441410] filed by American Public Health Association, Center for Reproductive Rights, Prof. R. Alta Charo, Guttmacher Institute, National Family Planning & Reproductive Health Association, National Latina Institute for Reproductive Health, National Women's Health Network and Reproductive Health Technologies Project [Service Date: 06/14/2013 ] Length of Brief: 6,753 words. [13-5069] (Blatt, Lisa) [Entered: 06/14/2013 03:49 PM]

06/14/2013

INCORRECT DOCKET ENTRY-DISREGARD-corrected brief filed-CONSENT AMICUS FOR APPELLEE BRIEF [1441462] filed by Lambda Legal Defense and Education Fund, Inc. [Service Date: 06/14/2013 ] Length of Brief: 6,977 words. [13-5069] -[Edited 06/17/2013 by LMC] (Ude, Thomas) [Entered: 06/14/2013 05:04 PM]

06/14/2013
81 pg, 781.98 KB

CORRECTED AMICUS FOR APPELLEE BRIEF [1441464] filed by Lambda Legal Defense and Education Fund, Inc. [Service Date: 06/14/2013 ] Length of Brief: 6.977 words. [13-5069] (Ude, Thomas) [Entered: 06/14/2013 05:20 PM]

06/14/2013

INCORRECT DOCKET ENTRY-DISREGARD-corrected brief filed-AMICUS FOR APPELLEE BRIEF [1441472] filed by Bright Pink, National Ovarian Cancer Coalition, Ovarian Cancer National Alliance and Dr. Anil K. Sood [Service Date: 06/14/2013 ] Length of Brief: 5,497 words. [13-5069]--[Edited 06/17/2013 by LMC] (Kisloff, Michelle) [Entered: 06/14/2013 05:37 PM]

06/14/2013

ENTRY OF APPEARANCE filed [1441476] by Martha J. Perkins

1 pg, 391.19 KB on behalf of Amici Curiae for Appellee Asian Pacific American

Legal Center, Black Women's Health Imperative, Campaign to End AIDS, Forward Together, HIV Law Project, Housing Works, Ipas, Mexican American Legal Defense and Educational Fund, National Health Law Program, National Hispanic Medical Association, National Women and AIDS Collective and Sexuality Information and Education Council of the U.S.. [13-5069] (Perkins, Martha) [Entered: 06/14/2013 06:04 PM]

06/14/2013

INCORRECT DOCKET ENTRY-DISREGARD-corrected brief filed-AMICUS FOR APPELLEE BRIEF [1441477] filed by Asian Pacific American Legal Center, Black Women's Health Imperative, Campaign to End AIDS, Forward Together, HIV Law Project, Housing Works, Ipas, Mexican American Legal Defense and Educational Fund, National Health Law Program, National Hispanic Medical Association, National Women and AIDS Collective and Sexuality Information and Education Council of the U.S. [Service Date: 06/14/2013 ] Length of Brief: 4,167 words. [13-5069]--[Edited 06/17/2013 by LMC] (Perkins, Martha) [Entered: 06/14/2013 06:08 PM]

06/14/2013
302 pg, 24.4 MB

CORRECTED AMICUS FOR APPELLEE BRIEF [1441478] filed by Bright Pink, National Ovarian Cancer Coalition, Ovarian Cancer National Alliance and Dr. Anil K. Sood [Service Date: 06/14/2013 ] Length of Brief: 5,497 words. [13-5069] (Kisloff, Michelle) [Entered: 06/14/2013 07:30 PM]

06/14/2013

INCORRECT DOCKET ENTRY-DISREGARD-document added to brief filing-SEPARATE STATUTORY ADDENDUM FILED [1441479] by Bright Pink, National Ovarian Cancer Coalition, Ovarian Cancer National Alliance and Dr. Anil K. Sood to Amicus brief [1441478-2] [Service Date:06/14/2013 ] [13-5069]-[Edited 06/17/2013 by LMC] (Kisloff, Michelle) [Entered: 06/14/2013 07:39 PM]

06/14/2013
53 pg, 273.41 KB

CONSENT AMICUS FOR APPELLEE BRIEF [1441480] filed by American Civil Liberties Union, Americans United for Separation of Church and State, Anti-Defamation League, Catholics for Choice, Central Conference of American Rabbis, Hadassah, The Womens Zionist Organization of American, Inc., Hindu American Foundation, Interfaith Alliance Foundation, National Coalition of American Nuns, National Council of Jewish Women, Religious Coalition for Reproductive Choice, Religious Institute, Union for Reform Judaism, Unitarian Universalist Womens Federation and Women of Reform Judaism [Service Date: 06/14/2013 ] Length of Brief: 6.955 words. [13-5069] (Lipper, Gregory) [Entered: 06/14/2013 08:40 PM]

06/17/2013
28 pg, 388.81 KB

CORRECTED AMICUS FOR APPELLEE BRIEF [1441583] filed by Asian Pacific American Legal Center, Black Women's Health Imperative, Campaign to End AIDS, Forward Together, HIV Law Project, Housing Works, Ipas, Mexican American Legal Defense and Educational Fund, National Health Law Program, National Hispanic Medical Association, National Women and AIDS Collective and Sexuality Information and Education Council of the U.S. [Service Date: 06/17/2013 ] Length of Brief: 4, 167 words. [13-5069] (Perkins, Martha) [Entered: 06/17/2013 12:46 PM]

06/21/2013
34 pg, 308.6 KB

APPELLANT REPLY BRIEF [1442593] filed by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi [Service Date: 06/21/2013 ] Length of Brief: 4314. [13-5069] (May, Colby) [Entered: 06/21/2013 02:10 PM]

06/25/2013
1 pg, 40.81 KB

CLERK'S ORDER filed [1443267] scheduling oral argument before Judges BROWN, EDWARDS, RANDOLPH Tuesday, 09/24/2013 AM [13-5069] [Entered: 06/25/2013 02:31 PM]

06/25/2013
44 pg, 219.33 KB

LETTER FILED [1443368] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi pursuant to FRAP 28j advising of additional authorities [Service Date: 06/25/2013 ] [13-5069] (May, Colby) [Entered: 06/25/2013 06:56 PM]

06/26/2013
40 pg, 2.38 MB

LETTER FILED [1443689] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi pursuant to FRAP 28j advising of additional authorities [Service Date: 06/26/2013 ] [13-5069] (May, Colby) [Entered: 06/26/2013 05:25 PM]

06/27/2013
3 pg, 23.1 KB

RESPONSE FILED [1443743] by DOL, Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS and TREA to letter Rule 28j authorities [1443689-2], letter [1443689-3] [Service Date: 06/27/2013 by CM/ECF NDA] Pages: 1-10. [13-5069] (Klein, Alisa) [Entered: 06/27/2013 10:08 AM]

06/28/2013

LETTER FILED [1444211] by Fresh Unlimited Incorporated,

168 pg, 429.52 KB Freshway Logistics Incorporated, Francis A. Gilardi and Philip M.

Gilardi pursuant to FRAP 28j advising of additional authorities

[Service Date: 06/28/2013 ] [13-5069] (May, Colby) [Entered:

06/28/2013 03:57 PM]

07/02/2013

LETTER FILED [1445021] by DOL, Seth D. Harris, Jacob J.

3 pg, 22.56 KB Lew, Kathleen Sebelius, HHS and TREA pursuant to FRAP 28j

advising of additional authorities [Service Date: 07/02/2013 ] [135069] (Klein, Alisa) [Entered: 07/02/2013 07:20 PM]

07/30/2013
5 pg, 34.72 KB

UNOPPOSED MOTION filed [1449139] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi to allow pro hac vice attorney [Service Date: 07/30/2013 ] Pages: 1-10. [13-5069] (May, Colby) [Entered: 07/30/2013 11:51 AM]

08/01/2013
1 pg, 37.97 KB

CLERK'S ORDER filed [1449572] granting appellants' unopposed motion to allow pro hac vice admission for Francis J. Manion for the purpose of presenting oral argument [1449139-2] [13-5069] [Entered: 08/01/2013 10:37 AM]

09/10/2013
1 pg, 41.9 KB

PER CURIAM ORDER filed [1455653] allocating oral argument time as follows: Appellants -- 15 Minutes, Appellees -- 15 Minutes. One counsel per side to argue; directing party to file Form 72 notice of arguing attorney - due 09/17/2013 [13-5069] [Entered: 09/10/2013 12:44 PM]

09/10/2013

FORM 72 submitted by arguing attorney, Alisa B. Klein, on behalf of Appellees DOL, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS and TREA. [13-5069] (Klein, Alisa) [Entered: 09/10/2013 02:31 PM]

09/12/2013

FORM 72 submitted by arguing attorney, Francis J. Manion, on behalf of Appellants Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi. [13-5069] (May, Colby) [Entered: 09/12/2013 10:48 AM]

09/17/2013
18 pg, 141.42 KB

LETTER FILED [1456983] by DOL, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS and TREA pursuant to FRAP 28j advising of additional authorities [Service Date: 09/17/2013 ] [135069] (Klein, Alisa) [Entered: 09/17/2013 02:10 PM]

09/18/2013
2 pg, 128.55 KB

LETTER FILED [1457165] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi pursuant to FRAP 28j advising of additional authorities [Service Date: 09/18/2013 ] [13-5069] (May, Colby) [Entered: 09/18/2013 12:38 PM]

09/19/2013
2 pg, 19.48 KB

LETTER FILED [1457476] by DOL, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS and TREA pursuant to FRAP 28j advising of additional authorities [Service Date: 09/19/2013 ] [135069] (Klein, Alisa) [Entered: 09/19/2013 04:09 PM]

09/24/2013

ORAL ARGUMENT HELD before Judges Brown, Edwards and

1 pg, 39.73 KB Randolph. [13-5069] [Entered: 09/24/2013 09:56 AM]

10/24/2013
13 pg, 71.34 KB

LETTER FILED [1462733] by DOL, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, HHS and TREA pursuant to FRAP 28j advising of additional authorities [Service Date: 10/24/2013 ] [135069] (Klein, Alisa) [Entered: 10/24/2013 08:39 AM]

11/01/2013
1 pg, 59.96 KB

[THIS JUDGMENT VACATED BY 8/8/2014 JUDGMENT] PER CURIAM JUDGMENT filed [1464133] that the judgment of the District Court appealed from in this cause be reversed as to the denial of a preliminary injunction for the individual owners and be remanded for consideration of the other preliminary-injunction factors; and be affirmed as to the denial of a preliminary injunction with respect to the Freshway companies for the reasons in the accompanying opinion . Before Judges: Brown, Edwards and Randolph. [13-5069]--[Edited 08/08/2014 by JMC] [Entered: 11/01/2013 10:10 AM]

11/01/2013
71 pg, 198.51 KB

OPINION filed [1464136] (Pages: 32) for the Court by Judge Brown, CONCURRING OPINION (Pages: 3) by Judge Randolph, CONCURRING/DISSENTING OPINION (Pages: 36) by Judge Edwards [13-5069] [Entered: 11/01/2013 10:13 AM]

11/01/2013

CLERK'S ORDER filed [1464140] withholding issuance of the

1 pg, 38.85 KB mandate. [13-5069] [Entered: 11/01/2013 10:15 AM]

11/07/2013
1 pg, 55.35 KB

LETTER filed [1465831] by the Clerk of the Supreme Court of the United States notifying this court of the following activity in the case before it: A petition for writ of certiorari was filed and placed on the docket on 11/07/2013 as No. 13-567. [13-5069] [Entered: 11/12/2013 06:02 PM]

11/11/2013
214 pg, 1.86 MB

MOTION filed [1465563] by Fresh Unlimited Incorporated, Freshway Logistics Incorporated, Francis A. Gilardi and Philip M. Gilardi to stay mandate (Response to Motion served by mail due on 11/25/2013) [Service Date: 11/11/2013 by CM/ECF NDA] Pages: 1-10. [13-5069] (May, Colby) [Entered: 11/11/2013 09:51 AM]

12/11/2013
1 pg, 40.44 KB

PER CURIAM ORDER filed [1469862] Upon consideration of appellants’ motion to stay issuance of the mandate and continue injunction until resolution of proceedings before the United States Supreme Court, it is ORDERED that the motion be granted. The injunction pending appeal granted by order filed March 29, 2013, remains in effect, and the mandate is stayed until final disposition by the Supreme Court of the petition for writ of certiorari, No. 13567, filed by appellants on November 5, 2013, and docketed by the Supreme Court on November 7, 2013. [1465563-2] Before

01/30/2014
1 pg, 55.91 KB
07/01/2014
1 pg, 62.68 KB
07/01/2014
1 pg, 64.14 KB
08/04/2014
3 pg, 136.74 KB
08/08/2014
1 pg, 59.96 KB
08/08/2014

Judges: Brown, Edwards and Randolph. [13-5069] [Entered: 12/11/2013 02:09 PM]
LETTER filed [1477869] by the Clerk of the Supreme Court of the United States notifying this court of the following activity in the case before it: A petition for writ of certiorari was filed and placed on the docket on 01/30/2014 as No. 13-915. [13-5069] [Entered: 01/31/2014 05:07 PM]
LETTER filed [1500369] by the Clerk of the Supreme Court of the United States notifying this court of the following activity in case No. 13-915: The petition for writ of certiorari was denied on 07/01/2014. [13-5069] [Entered: 07/01/2014 06:06 PM]
LETTER filed [1500366] by the Clerk of the Supreme Court of the United States notifying this court of the following activity in case No. 13-567: The petition for writ of certiorari was granted on 07/01/2014. [13-5069] [Entered: 07/01/2014 06:02 PM]
JUDGMENT filed [1506265] by the Clerk of the Supreme Court of the United States notifying this court of the following disposition of case No. 13-567: On 07/01/2014, the court vacated with costs and remanded the case for further consideration in light of Burwell v. Hobby Lobby Stores, 573 U. S. ___ (2014). [135069] [Entered: 08/05/2014 06:59 PM]
PER CURIAM JUDGMENT filed [1506830] (without memorandum) This cause came to be heard on remand from the Supreme Court vacating this court’s November 1, 2013 judgment, and remanding for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Upon consideration thereof, it is ORDERED and ADJUDGED that the case be remanded to the district court with instructions to enter a preliminary injunction for the Freshway companies and to reconsider the denial of the preliminary injunction as to the individual owners in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The Clerk is directed to issue the mandate forthwith. Before Judges: Brown, Edwards and Randolph. [135069] [Entered: 08/08/2014 11:57 AM]
MANDATE ISSUED to Clerk, District Court [13-5069] [Entered: 08/08/2014 12:05 PM]

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2013

Decided November 1, 2013

No. 13-5069

FRANCIS A. GILARDI, ET AL., APPELLANTS

v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-00104)

Francis J. Manion , pro hac vice, argued the cause for appellants. W ith him on the br iefs were Colby M. May and Carly F. Gammill.
Kimberlee Wood Colby was on the brief for amici curiae Association of Gospel Rescue Mi ssions, et al., in support of appellants.
Deborah J. Dewart was on the brief for amicus curiae Liberty, Life, and Law Foundation in support of appellants.
Dwight G. Duncan was on the brief for amici curiae 28 Catholic Theologians, et al. in support of appellants.

2
Lawrence J. Joseph was on the brief for amicus curiae Eagle Forum Education & Legal Defense Fund in support of appellants.
William Lee Saunders, Jr. was on t he brief for amici curiae American Association of Pro-Life Obstetrician s and Gynecologists, et al. in support of appellants.
Dorinda C. Bordlee was on the b rief for amici curiae Abortion Breast Cancer Coalit ion, et al. in support of appellants.
Noel J. Fra ncisco was on the brief for amicus curiae Archdiocese of Cincinnati in support of appellants.
Michael Dewine, Attorney General, Office of the Attorney General of the State of Ohio, and Jennifer L. Pratt, Assistant Attorney General, were on the br ief for amcius curiae State of Ohio in support of appellants.
Michael F. Smith was on the brief for amicus curiae Life Legal Defense Foundation in support of appellants.
Alisa B. Klein , Attorney, U.S. De partment of Justice, argued the cause for appellees. W ith her on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, Beth S. Brinkmann , Deputy Assistant Attorney General, and Mark B. Stern, Attorneys.
Lisa S. Blatt , Robert J. Katerberg , Andrew S. Macurdy , and Julianna S. Gonen were on the brief for amici curiae Center for Reproductive Rights, et al. in support of appellees.

3
Charles E. Davidow and Marcia D. Greenberger were on the brief for amici curiae American Association of University Women, et al. in support of appellees.
Ayesha N. Khan , Gregory M. L ipper, and Daniel Mach were on the brief for amici curiae Americans United for Separation of Church and State, et al. in support of appellees.
Michelle A. Kisloff was on the brief for amici curiae Ovarian Cancer National Alli ance, et al. in support of appellees.
Martha Jane Perkins was on the brief for amici curiae National Health Law Program, et al. in support of appellees.
Jennifer C. Pizer, Camilla B. Taylor, and Thomas W. Ude, Jr. were on the brief for amicus curiae Lambda Legal Defense and Education Fund, Inc. in support of appellees.
Bruce H. Schneider was on the b rief for amici curiae Physicians for Reproductive H ealth, et al. in support of appellees.
Before: BROWN, Circuit Judge, and E DWARDS and RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN, with whom Senior Circuit Judge EDWARDS joins except as to parts VI, VII, and VIII, and with whom Senior Circuit Judge RANDOLPH joins except as to parts III and IV.
Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge RANDOLPH.

4
Opinion concurring in part a nd dissenting in part filed by Senior Circuit Judge EDWARDS.

BROWN, Circuit Judge. Two years after our decision Seven-Sky v. Holder , 661 F.3d 1 (D.C. Cir. 2011), we are asked to revisit the behemoth known as the Affordable Care Act. This time, however, we are not confronted with a question of constitutional authority. Instea d, we m ust determine whether the contrace ptive mandate imposed by the Act trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act. We conclude it does.

I

Two brothers, Francis and Philip Gilardi, are equa l owners of Freshway F oods and Freshway Logistics—both companies are clo sely-held corporations that have elected to be taxed under Subchapter S of the Internal Revenue Code. The two companies collectively employ about 400 employees and operate a self-insured health plan through a third-party administrator and stop-loss provider.

As adherents of the Ca tholic faith, the Gilardis oppose contraception, sterilization, and abortion. Accordingly, the two brothers—exercising their powers as owners and company executives—excluded coverage of products and services falling under these categories.

But along came the Affordable Care Act. Part of the Act

directs all group health plans an d health insurance issuers to

provide, without cost-sharing requirements, preventive care as

determined by the Health Resources

and Services

Administration. 42 U.S.C. § 300gg-13(a)(4). In turn, the

Administration issued guidelines requiring coverage for “all

5
Food and Drug A dministration-approved contraceptive methods, sterilization procedur es, and patient education and counseling for all wom en with reproductive capacity,” as prescribed by a health care provider. Women’s Preventive Services Guidelines, HEALTH RES. & SERVS. ADMIN., http://www.hrsa.gov/womensguidelines/; see Group Health Plans and Health Insu rance Issuers Relating to Coverage of Preventive Services Un der the Patient Protection Affordable Care Act, 77 Fed. Reg. 8725, 8725–26 (Feb. 15, 2012) (citing the online HRSA Guidelines); see also 29 C.F.R. § 2590.7152713(a)(1)(iv); 45 C .F.R. 147.131(c).1 There are exceptions—some ephemeral, some permanent—for grandfathered plans, religi ous organizations, and sm all businesses. See 26 U.S.C. § 4980H(a); id. § 4980H(c)(2)(A); 42 U.S.C. § 18011; 45 C.F.R. §§ 147.130(a)(1)(iv)(A)–(B). But the Freshway companies do not f all into any of these categories. As a resu lt, the Gilardis were f aced with two choices: adjust their com panies’ plans to provide the mandated contraceptive services in contravention of their religious beliefs, or pay a penalty am ounting to over $14 million per year.2
Finding themselves on the horns of an i mpossible dilemma, the Gilardis and their companies filed suit in district court, alleging the contraceptive m andate violated their righ ts under the Religious F reedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., the Free E xercise Clause, the Free Speech Clause, and the Adm inistrative Procedure Act. The plaintiffs moved for a prelim inary injunction, but the district
1 For ease of reference, we will refer to this provision as “the contraceptive mandate.”
2 The Gilard is could have dr opped their healthcare coverage altogether, but they regard this option as morally unthinkable. See J.A. at 41 ¶ 10; J.A. at 52 ¶ 10.

6
court denied their req uest. W ith respect to the Fresh way companies, the cou rt determined they could not “exercise” religion and thus no substantia l burden on religious exercise was demonstrable under RFRA. As for the Gilardis, the court found any burden on the Gilard is’ religious beliefs was indirect.

The plaintiffs timely filed an interlocutory appeal and moved for an injunction pendi ng appeal. After having initially denied their m otion, we issued, sua sponte, an order giving them a temporary reprieve from the mandate.

II

Our standard of review for a denial of a prelim inary

injunction rests upon what aspect of the district court’s

decision we are exam ining. Inso far as our review concerns

the district court’s consideration of the preliminary-injunction

factors and the ultimate deci sion to grant or deny the

injunction, we review for an abuse of discretion. See In r e

Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012). But

we review the legal co nclusions underlying the decision de

novo and review findings of fact for clear error.

Id.;

Chaplaincy of Full Gospel Churches v. England , 454 F.3d

290, 297 (D.C. Cir. 2006).

“In ruling on a preliminary injunction a key issue—often the dispositive one—is whethe r the m ovant has shown a substantial likelihood of success on the m erits.” Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011). T o determine this likelihood, we must answer whether the contraceptive mandate of 45 C.F.R. § 147.130(a)(1)(iv), as applied to the Appellants, violates their free-exercise rights as protected by RFRA. As the parties have m ade eminently

7
clear, we must separately examine the claims by the Freshway companies and their owners.
III
We begin with the Freshway com panies. Before addressing the merits of their RFRA claim , we must first as k whether they m ay bring the chal lenge at all. The statute allows “[a] person whose religious exercise has been burdened” to seek judicial reli ef, but leaves us bereft of guidance on who a “person” is. See 42 U.S.C. § 2000bb-1(c) (emphasis added).
For at least one of our sister circuits (as we ll as the Appellants), the Dictionary Act, 1 U.S.C. § 1, dispositively answers the question. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129, 1132 (10th Cir. 2013) (en banc). Under the Act, the defi nition of “person” extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies”—in other words, it encompasses the corporeal and the incorporeal. 1 U.S.C. § 1. The Freshway com panies largely depend on the Dictionary Act’s elision of the differences in identity, hoping it applies to their RFRA claim.
But the focus on personhood is too narrow; instead, we must construe the term “person” together with the phras e “exercise of religion.” See Rasul v. Myers, 512 F.3d 644, 668 (D.C. Cir. 2008) (“Because RFRA prohibits the Governm ent from ‘substantially burden[ing] a person’s exercise of religion’ instead of sim ply the exercise of religion, 42 U.S.C. § 2000bb-1(a), we m ust construe ‘person’ as qualifying ‘exercise of religion.’” (e mphasis in original)), vacated and remanded on other grounds by 555 U.S. 1083 (2008); see also 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise

8
has been burdened in violation of this section may . . . obtain appropriate relief against a gove rnment.” (emphasis added)). And RFRA provides us with no helpful definition of “exercise of religion”; all we can glean f rom the statute is tha t “‘religious exercise’ includes an y exercise of religio n, whether or not com pelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A ). We must therefore turn to the full body of our free-exercise caselaw to discern w hether the Freshway com panies are persons capable of religious exercise under the statute. See Rasul, 512 F.3d at 671; see also Autocam Corp. v. Sebelius, -- F.3d ----, 2013 WL 5182544, at *7 (6th Cir. Sept. 17, 2013); Hobby Lobby, 723 F.3d at 1167 (Briscoe, C.J., concurring in part and dissenting in part).
IV
The query is simple: do corporations enjoy the shelter of the Free Ex ercise Clause? Or is the free-exercise right a “purely personal” one, such that it is “unavailable to corporations and other organizatio ns because the ‘his toric function’ of the particular guarantee has been lim ited to the protection of individuals”? First Nat’l Ba nk of Bos. v. Bellotti, 435 U.S. 765, 778 n.14 (1978) (quoting United States v. White, 322 U.S. 694, 698–701 (1944)). We turn to the “nature, history, and purpose” of the Clause for our answer. Id.
At the tim e of the Frami ng, a great debate raged on the precise formulation of what we now know as the Free Exercise Clause. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 HARV. L. REV. 1409, 1480–85 (1990). The earliest draf ts from the House of Representa tives focused on the protection of conscience, rather than the “exercise of religion.” See id. at

9
1482; see also 1 ANNALS OF CONGRESS 729 (1789) (noting a later amendment to change the Clause’s prototype to read: “no religion shall be establish ed by law, nor shall the equ al rights of conscience be infringe d”). And as the debates went on, strong concerns arose that the rights of religious sects would not b e “well secured under the . . . Constitu tion.” 1 ANNALS OF CONGRESS 730 (remarks of Da niel Carroll, Aug. 15, 1789). To address these conc erns and others, the House continued to tinker and toil ; once the dust h ad settled, it eventually proposed a consti tutional amendment barring Congress from “prevent[ing] the free exercise” of religion and “infring[ing] the rights of conscience.” 1 id. at 766. But the Senate had different ideas, a nd in the end, it was the free exercise of religion—standing al one—that was sent to the states for ratification. See McConnell, supra, at 1488; see also LOUIS FISHER, RELIGIOUS LIBERTY IN AMERICA: POLITICAL SAFEGUARDS 56 (2002).
This history reveals two things about the Clause’s purpose relevant to our inquiry today. First, the constitutional guarantee “extended the broade r freedom of action to all believers,” allowing for the incl usion of “conduct as well as belief.” McConnell, supra, at 1490. Second, the adopted formulation encompassed both individual judgment, as well as “the co rporate or institutional aspects of religious belief.” Id. Because the word religion “connotes a comm unity of believers,” the prohibition against the im pingement on religious free exercise m ust be understood to cover the activities of both individuals and religious bodies. See id.
And these two groups have b een the beneficiaries of the Supreme Court’s free-exercise jurisprudence. To be sure, the right has largely been underst ood as a personal one. Before incorporation, the Court describe d the free-exercise righ t as an individual one—“the indef easible right to worship God

10
according to the dictates of cons cience.” Cummings v. Missouri, 71 U.S. 277, 304 (1866). Incorporation did nothing to alter that sentiment; shortly after Cantwell v. Connecticut , 310 U.S. 296 (1940), the Court reaf firmed the personal nature of the right as part of “the mind and spirit of man.” See Jones v. City of Opelika , 316 U.S. 584, 594 (1942), overruled on other grounds by 319 U.S. 103 (1943); see also Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (“[The purpose of the Free Ex ercise Clause] is to secure relig ious liberty in the individual by prohibiting any invasions thereof by civil authority.” (em phasis added)). And that understanding still resonates with the m odern Court. See Zelman v. Simmons-Harris , 536 U.S. 639, 679 n.4 (2002) (Thomas, J., concurring) (“In part icular, these rights inhere in the Free E xercise Clause, which unlike the Establishm ent Clause protects individual liberties of religious worship.”).
That is no t to say the Court views organizations as constitutional outliers—indeed, its jur isprudence reflects the foundational principle that re ligious bodies—representing a communion of faith and a co mmunity of believers—are entitled to the shield of the Free Exercis e Clause. The Court has heard free-exercise challenges from religiou s entities and religious organizations. See Jimmy Swaggart Ministries v. Bd. of Equalization of C al., 493 U.S. 378, 381 (1990); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 (1987); Tony & Susan Alamo Found. v. Sec’y of L abor, 471 U.S. 290, 292 (1985); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am. , 344 U.S. 94, 107–08 (1952). It has listened to the g rievances of religious sects and m ember congregations. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EE OC, 132 S. Ct. 694, 699 (2012); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 425 (2006); Church of the Lukumi Babalu Aye,

11
Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993). It has even entertained claims by relig ious and educational institutions. See Bob Jones Univ. v. United States , 461 U.S. 574, 579–80 (1983).
Beyond these cases involving religious organizations, however, we glean nothing from the Court’s jurisprudence that suggests other entities m ay raise a free-exercise challenge. But that the Court has never seriously considered such a claim by a secular co rporation or other organizational entity is not to say it never will. For the nonce, only one aberrational case com es to m ind. In Gallagher v. Crown Kosher Super Market of Massachusetts, Inc. , 366 U.S. 617 (1961), a corporation operated by mem bers of the Orthodox Jewish faith challenged the constitutionality of Massachusetts’ Sunday closing law s. See id. at 618. The Court summarily disposed of th e corporation’s free-exercise claim, tersely noting that Braunfeld v. Brown , 366 U.S. 599 (1961), obviated the need for further discussion. See Crown Kosher, 366 U.S. at 631. Technically speaking, the Court did rule on th e merits of the cas e. B ut it rem ained dubitante about standing—perhaps the novelty of a secular corporation bringing a free-exercis e challenge was too novel. See id. (“Since the decision in [ Braunfeld] rejects the contentions presented by these ap pellees on the m erits, we need not decide whether appellees ha ve standing to raise these questions.”); cf. Hobby Lobby , 723 F.3d at 1150 (Hartz, J., concurring). Meanwhile, we n eed not base a right of free exercise for nonreligious organi zations on so thin a reed of caselaw, especially as both we and the Suprem e Court have expressed strong doubts about that proposition. See, e.g., Harris v. McRae, 448 U.S. 297, 321 (1980) (explaining that a free-exercise challenge is “one that ordin arily requires individual participation”); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003) (noting

12
“the dubious proposition that a charitable corporation no t otherwise defined can exercise religion as p rotected in the First Amendment”).
Citing Citizens United v. FEC , 558 U.S. 310 (2010), the Freshway companies argue that corporations—religious or otherwise—are entitled to the f ull array of First Amendment protections, including the right to free exercise. They are not the only proponents of this position. See Hobby Lobby, 723 F.3d at 1135 (majority opinion) (“Because Hobby Lobby and Mardel express them selves for religious purposes, the First Amendment logic of Citizens United, where the Suprem e Court has recognized a First Am endment right of for-profit corporations to exp ress themselves for political purposes, applies as well.” (citation omitted)); see also Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of Health & Human Servs., 724 F.3d 377, 400 (3d Cir. 2013) (Jordan, J., dissenting) (citing Citizens United, 558 U.S. at 342). There is an appeal to this simple reasoning; after all, the free-exercis e and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon.
Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Ex ercise Clause equals a corporate freeexercise right, will u ltimately prevail. But we m ust be mindful that Citizens United represents the c ulmination of decades of Supreme Court jurisp rudence recognizing that all corporations speak. See Conestoga Wood , 724 F.3d at 384. When it comes to the free exerci se of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.
Consider Bellotti—the progenitor of Citizens United. When the Bellotti Court declared “political speech does not lose First Amendment protection ‘simply because its source is

13
a corporation,’” Citizens United, 558 U.S. at 342 (quoting Bellotti, 435 U.S. at 784), it revi ewed many cases in which the Court invalidated a state law b ecause it “infringe[d on] protected speech by corporate bod ies.” Bellotti, 435 U.S. at 778 n.14. I n other words, Bellotti crystallized a robust body of caselaw giving rise to the c onstitutional right of corporate political speech, which the Citizens United Court could rely on as a firm foundation.
No such corpus juris exists to sug gest a free-exercis e right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right. W hen it comes to corporate entities, onl y religious organizations are accorded the protections of the Clause. And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history. Fortunately, we need not opine here on what a “religious organization” is, as the Freshway companies have conceded they do not meet that criterion.
The Freshway com panies alternatively assert they can vindicate the free-exercise righ ts of their owners. They reason that if “a com pany is owned and controlled by a few like-minded individuals who share the sam e religious values and run the com pany pursuant to those values,” the company may serve as the owners’ surrogate. Appellants’ Br. at 50. This pass-through theory of cor porate standing is logically and structurally appealing in light of the gove rnment’s shell game. And EEOC v. Townley Engin eering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988) provides longstanding, if illusory, support. In Townley, the Ninth Circuit concluded— without much in the way of legal substantiation—that the corporation was “merely the instrument through and by which [the owners] express[ed] their religious beliefs.” Id. at 619.

14
Admittedly, there is a c ertain theological congruence to Townley’s characterization. The Bi ble says “f aith without works is dead.” James 2:26 (King James). As am ici point out, not only are Catholic em ployers morally responsible for the management of their companies, “instructing or encouraging someone else to commit a wrongful act is itself a grave moral wrong—i.e., ‘s candal’—under Catholic doctrine.” Br. of Catholic Theologians at 3. Thus, amici reason, “the Mandate thrusts Catholic employers into a ‘perfect storm’ of moral complicity in the forbidden actions.” Br. of Catholic Theologians at 5; see also Br. of the Archdiocese of Cincinnati at 16–17 nn. 6, 7. When even attenuated participation may be construed as a sin, see, e.g., United States v. Lee , 455 U.S. 252, 261 n.12 (1982), it is not for courts to decide that the corporate veil severs the owner’s moral responsibility.
But dogma does not dictate justiciability. Though Townley’s conclusion is theologically defensible, its standing bona fides, supported only by a reference to a footnote in Tony & Susan Alamo Foundation v. Secretary of Labor , 471 U.S. 290 (1985), are m ore dubious. The Alamo Foundation Court relied on a theory of religious associational standing; in other words, the organ ization could raise a free-exercise defense on behalf of one of its execu tives because the executive was an adherent to the group’s religious creed. See id. at 303 n.26. How this supports standing for a secular corporation to vindicate its ow ners’ free-exercise rights is unclear.
Townley’s misconception of re ligious associational standing has spread from one fr ee-exercise case to another, even creeping its way into the cu rrent contraceptive mandate challenges. See Stormans, Inc. v. Selecky , 586 F.3d 1109,

15
1120 (9th Cir. 2009); see also Monaghan v. Sebelius , 931 F. Supp. 2d 794, 800–02 (E.D. Mich. 2013); Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 428 (W .D. Pa. 2013). W hile we decline the Fresh way companies’ invitation to acc ept Townley’s ipse dixit that closely held corporations can vindicate the rights of thei r owners, we understand the impulse. The free exercise pr otection—a core bulwark of freedom—should not be expunged by a label. But for now, we have no basis for concl uding a secular organization can exercise religion.

V

That leaves the Gilard is.3 Obviously, they have no

difficulty satisfying the thres hold inquiry to which their

enterprises succumbed; they ar e, most assuredly, “person s”

under RFRA. See also Rasul v. Myers , 563 F.3d 527, 533

(D.C. Cir. 2009) (Brown, J., concurring) (“RFRA does not

define ‘person,’ so we m ust look to the word’s ordinary

meaning. There is little m ystery that a ‘person’ is ‘an

individual human being . . . as distinguished from an animal

or a thing.’” (quoting W EBSTER’S NEW INTERNATIONAL

DICTIONARY 1606 (1981)). And there is no dispute that the

mandate, as directed to the Gilardis, is a palpable an

d

discernible infringement of free exercis e. All that stan ds

between the Gilardis and the hope of vindi cation is th e

3 We agree with Judge Edwards that the Gilardis’ Article III standing is indisputable. See Op. of Edwards, J., at 6–7.

16 uncertain4 barrier of the sharehol der-standing rule and an inchoate concern about prudent ial standing—a “jurisdictional issue which cannot be waived or conceded” in this circuit. Ass’n of Batter y Recyclers, Inc. v. EPA , 716 F.3d 667, 674 (D.C. Cir. 2013).
The shareholder-standing rule giv es us little pause; we are satisfied that the Gilardis have been “injured in a way that is separate and distinc t from an injury to the corpora tion.” See Crosby v. Beam , 548 N.E.2d 217, 219 (Ohio 1989); see also Rawoof v. Texor Petroleum Co. , 521 F.3d 750, 757 (7th Cir. 2008) (em ploying the state- law derivative action rule to address shareholder standing in a federal question case). If the companies have no claim to enforce—and as nonreligious corporations, they cannot enga ge in religious exercise—w e are left with the obvi ous conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies. Thus, the Gilardis’ in jury—which arises
4 We assu me, without deciding, t hat Congress did not intend to abrogate the prudential-st anding requirement in enacting RFRA. We share Judge Edwards’ co ncerns about whet her prudentialstanding principles apply to RFRA challenges and whether th e shareholder-standing rule is part of the prudential-standing equation. See Op. of Edwards, J., at 9–12. But it would b e imprudent to decide these questi ons without the benefit of full briefing on this issue, especially as the Gilardis can easily surmount the shareholder-standing hurdle.

17
therefrom—is “separate and dis tinct,” providing us with an exception to the shareholder-standing rule.5
VI
We now reach the hea rt of the Gilard is’ RFRA claim . The Act requires the Gilardis to “allege[] a substantial burden on [their] religious exercise.” Kaemmerling v. Lappin , 553 F.3d 669, 677 (D.C. Cir. 2008). Re ligious exercise is broadly defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see also id. § 2000bb-2. A “substantial burden” is “substantial pressure on an adherent to m odify his behavior and to violate his beliefs.” Kaemmerling, 553 F.3d at 678 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)).
We begin with the peculiar step of explaining what is not at issue. This case is not about the sincerity of the Gilardis’ religious beliefs, nor does it concern the theology behind Catholic precepts on contraception. The for mer is unchallenged, while the latt er is un challengeable. See id. at
5 Our conclusion is buttressed by other considerations. First, Ohio caselaw does not treat the derivative-action rule as an unyielding one; to the contrary, some flexibility has been shown when it comes to close corporations such as the Freshway companies. See, e.g., Yackel v. Kay, 642 N.E.2 d 1107, 1109–10 (Ohio Ct . App. 1994). Moreover, none of the principles underl ying the shareholderstanding rule is offend ed by allowing the G ilardis’ suit to proceed—there is no danger of multiple lawsuits, and no creditor or shareholder interests will be compromised as a result of their RFRA challenge. See 12B W. FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 5911.50 (2006). We recognize that shareholders of large public corporations will be subject to different constraints and will likely find the burden threshold insuperable.

18
716 (“Particularly in this sensi tive area, it is not within the judicial function and judicial competence to in quire whether the petitioner or his fellow wo rker more correc tly perceived the commands of their comm on faith. Courts ar e not arbiters of scriptural interpretation.”); see also United States v. Ballard, 322 U.S. 78, 86 (1944) (“Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs.”). Equally uncontroverted is the nature of the Gilardis’ r eligious exercise: they operate their corporate enterprises in acco rdance with the tenets of the ir Catholic faith. See Hobby Lobby , 723 F.3d at 1189 (Matheson, J., concurring in part and dissenting in part).

The only dispute touches on th e characterization of the

burden. The burden is too rem ote and too attenuated, the

government says, as it arises only when an em

ployee

purchases a contraceptive or uses contraceptive services. We

disagree with the governm ent’s foundational prem ise. The

burden on religious exercise doe s not occur at the poin t of

contraceptive purchase; instead, it occurs when a com pany’s

owners fill the basket of goods and services that constitute a

healthcare plan. In other words, the Gilard is are burd ened

when they are p ressured to c hoose between violating their

religious beliefs in m anaging their selected plan or p aying

onerous penalties. See Thomas, 450 U.S. at 717–18;

Wisconsin v. Yoder , 406 U.S. 205, 218 (1972) (“The im pact

of the compulsory-attendance law on respondents’ practice of

the Amish religion is not only severe, but inescapable, for the

Wisconsin law affir matively compels them, under threat of

criminal sanction, to perfor m acts undeniably at odds with

fundamental tenets of th eir religious beliefs.”); Kaemmerling,

553 F.3d at 678.

The Framers of the Constitu tion clearly embraced the philosophical insight that gove rnment coercion of m oral

19
agency is o dious. Penalties are impertinen t, according to Locke, if they are used to com pel men “to quit the ligh t of their own reason, and oppose the dictates of their own consciences.” J OHN LOCKE, A LETTER CONCERNING TOLERATION 13–14 (J. Brook ed., 1792) (1689). Madison described conscience as “the most sacred of all p roperty,” James Madison, Property, NAT’L GAZETTE, Mar. 29, 1792, at 174, reprinted in JAMES MADISON’S “ADVICE TO MY COUNTRY” 25, 83–84 (David B. Mattern ed., 1997), and placed the freedom of conscience prior to and s uperior to all other natural rights. Religion, he wrote, is “the duty which we owe to our Creator . . . being under the direction of reason and conviction only, not of viol ence or compulsion,” 1 MADISON PAPERS 174 (1962), “precedent” to “the claim s of Civil Society,” JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785); see also United States v. Macintosh , 283 U.S. 605, 633–34 (1931) (Hughes, C.J., dissenting) (“[I]n the fo rum of conscien ce, duty to a moral power higher than the s tate has always been maintained. . . . The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.”).
From thence sprang the idea that the right to free exercise necessarily prohibits the govern ment from “compel[ling] a man to furnish contributions of m oney for the propagation of opinions which he disbelieves.” T HOMAS JEFFERSON, THE VIRGINIA ACT FOR ESTABLISHING RELIGIOUS FREEDOM (1786). And that prohibition ha s plainly m anifested itself throughout the years as an inte gral component of the free exercise guarantee. Justice Br ennan, writing for the Court in Sherbert v. Verner, 374 U.S. 398 (1963), put it well: “Government may neither compel affirmation of a repugnant belief, nor penalize or disc riminate against individuals

20
because they hold relig ious views abhorrent to th e authorities.” Id. at 402 (citations omitted).
The contraceptive mandate demands that owners like the Gilardis meaningfully approve and endorse the inclusion of contraceptive coverage in their com panies’ employerprovided plans, over whatever objections they m ay have. Such an endorsem ent—procured exclusively by regulatory ukase—is a “com pel[led] affirmation of a repugnant belief.” See id. That, standing alone, is a cognizable burden on free exercise. And the burden becom es substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can eith er abide by the sacred tenets of their faith, pay a penalty of over $14 m illion, and cripp le the companies they have spen t a lifetim e building, or they become complicit in a grave moral wrong. If that is not “substantial pressure on an adhe rent to m odify his behavior and to violate his beliefs,” we fail to see how the standa rd could be met. See Thomas, 450 U.S. at 718.
In suggesting that no substa ntial burden lies with the Gilardis, the government invokes the principles undergirding the bargain for the corp orate veil. True, it is an elem entary principle of corporate law that “incorporation’s basic purpose is to c reate a dis tinct legal entity, with legal rig hts, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King , 533 U.S. 158, 163 (2001). And as part of that fiction, shareholders forgo certain rights pertaining to the corporation. See Grote v. Sebelius , 708 F.3d 850, 858 (7th Cir. 2013) (Rovner, J., dissenting). But we cannot sim ply stop there. Shareholders make such a sacr ifice because the corporation can generally exercise som e analogue of the forgone right. As a corp oration is “capable of m aking and executin g

21
contracts, possessing and owning real and personal property in its own name, suing and bei ng sued,” a shareholder cannot expect to exercise the right to take these actions in his or her personal capacity. See 1 W. FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 25 (2006). This is no less true with constitutional rights. See Franks v. Rankin , Nos. 11AP-934, 11AP-962, 2012 WL 1531031, at * 10 (Ohio Ct. App. May 1, 2012) (rejecting a shareholder’s due process claim brought on behalf of the corporation).
Mindful of these principles, co nsider the ramifications of the government’s argument. It contends free exercise is an individual right. If the Gilard is had run their b usinesses as sole proprietorships, they w ould presumably have a viable RFRA claim under the governm ent’s theory. Cf. Braunfeld, 366 U.S. at 601 (describing individual merchants who challenged a Sunday closing law under the Free Exercise Clause). But the governm ent, relying on what is perhaps an incomplete understanding of corporate law, argues the Gilardis lose the ab ility to m ake such a claim by takin g advantage of state incorporation law. And as a corollary to the government’s expansive theory, the party being regulated—the corporation—cannot make a free-exercise claim, as it is not an individua l capable of exercising religion. So, in the government’s view, there is no corporate analogue, and the individual right disappears into the ether.
This interpretation is p erplexing and troubling. It is perplexing because we do not believe Congress intended important statutory rights to turn on the m anner in which an individual operates his businesses. The governm ent’s logic is also quite troubling because it would eventually reach Firs t Amendment free-exercise cases. The sam e language, “exercise” “of religion,” appears both in the Constitu tion and RFRA. Compare U.S. CONST. AMEND. I (“Congress shall

22

make no law respectin g an establishm ent of religion, or

prohibiting the free exercise thereof . . . .”), with 42 U.S.C. §

2000bb-1(a) (“Government shall not burden a person’s

exercise of religion . . . .”). Thus, if the governm ent is

correct, the price of incorpor ation is not only the loss of

RFRA’s statutory free-exercise right, but the constitutional

one as well. And that would

create a risk of an

unconstitutional condition in future cases. See Perry v.

Sindermann, 408 U.S. 593, 597 (1972) (“[T]his Court has

made clear that even though a person has no ‘right’ to a

valuable governmental benefit and even though the

government may deny him the benefit for any num ber of

reasons, there are som e reasons upon which the governm ent

may not rely. It m ay not de ny a benefit to a person on the

basis that infringes on his constitutionally protected interests .

. . .” (emphasis added)).

A parade of horribles will des cend upon us, the government exclaims, if religio us beliefs could serve as a private veto for the contracep tive mandate. Hyperbole asid e, we note it was Congress, and not the courts, that allowed f or an individual’s religious conscience to prevail ov er substantially burdensome federal regulation. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418 (2006), the Supreme Court provided an apt response:

The Government’s argument echoes the class ic rejoinder

of bureaucrats throughout history: If I make an exception

for you, I’ll have to m ake one for everybody, so no

exceptions. But RFRA operates by m

andating

consideration, under the com pelling interest test, of

exceptions to “rule[s] of ge neral applicability.” 42

U.S.C. § 2000bb-1(a). Congress determ ined that the

legislated test [of RFRA] “is a workable tes t for striking

23
sensible balances between religious liberty and competing governmental interests.” § 2000bb(a)(5).
Id. at 436 (alteration in original).
VII
As the Gilardis have demonstr ated the substantial nature of their burden, we now turn to strict scrutiny, a “se arching examination” where the onus is borne exclusively by the government. Fisher v. Univ. of Tex. , 133 S. Ct. 2411, 2419 (2013); see also 42 U.S.C. § 2000bb-1(b). “[U]nless the government demonstrates a compelling governmental interest, and uses the least restrictive means of furthering that interest,” the mandate must be set aside. See Holy Land , 333 F.3d at 166 (internal quotation marks omitted); see also 42 U.S.C. § 2000bb. While “strict scrutiny m ust not be strict in theory, but fatal in fact,” neither should it be “ strict in theo ry but feeble in fact.” Fisher, 133 S. Ct. at 2421 (internal quotation marks omitted).
A
It is d ifficult to divin e precisely what makes an inter est “compelling,” but a few reliable m etrics exist. The interest cannot be “broadly for mulated”—the test dem ands particularity. See O Centro , 546 U.S. at 431 (citing Yoder, 406 U.S. at 213, 221). The “compelling” n ature of the interest is contingent on its context. See id. (citing Grutter v. Bollinger, 539 U.S. 306, 327 (2003); Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 228 ( 1995)). And the interest must be “of the highest order,” Yoder, 406 U.S. at 215, meaning it cannot leave “appreciable dam age to [a] supposedly vital inte rest unprohibited,” Lukumi, 508 U.S. at 547 (quoting Florida Star v. B.J.F ., 491 U.S. 524, 541–42

24
(1989) (Scalia, J., concurring in part and concurring in the judgment)).6
The government cites several concerns to bolster its claim that the contrace ptive mandate serves a com pelling interest (or interests), but its recitation is sketchy and highly abstract. Perhaps the governm ent thought it best to focus on justiciability, hoping its ipse dixit would be sufficient to survive strict scrutiny. After all, if no one has standing to object, the state avoids the search ing inquiry into its m eans. Here, the articu lated concerns range from “safeguarding the public health” to “protecting a woman’s compelling interest in autonomy” and promoting gender equality. But the government does little to dem onstrate a nexus between this array of issues and the mandate.
For example, as a standalone principle, “safeguarding the public health” seem s too broadl y formulated to satisfy the compelling interest test. It has been used to justify all manner of government regulations in other contexts. See Roe v. Wade, 410 U.S. 113, 154 (1973) (abortion laws); Loxley v. Chesapeake Hosp. Auth. , No. 97-2539, 1998 WL 827285, at *4 (4th Cir. Dec. 1, 1998) (competence of medical personnel); Dunagin v. City of Oxford , 718 F.2d 738, 747 (5th Cir. 1983) (en banc) (liquor advertisem ent rules). And here, the government relies on the broad sw eep of that interest once more, citing Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011), an individual-mandate case in which a district court found the public health interest sufficient. But the invocation of the in terest in Mead seems empty, reflexive, and
6 Much ink has already been spilled on how the government’s interests leave “appreciable damage” unprohibited. See Conestoga Wood, 724 F.3d at 413–14 (Jordan J., dissenting); Hobby Lobby, 723 F.3d at 1143–44. We share these concerns, but need not repeat them here.

25
talismanic. The governm ent cites Mead as if to say, “once a compelling interest, always a compelling interest.” It f ails to recognize that “safeguarding the public health” is such a capacious formula that it requ ires close scru tiny of the asserted harm. See O Centro, 546 U.S. at 431. W e cannot be satisfied with th e government’s representation as to th e compelling nature of the interest simply because other courts have reached that conclusion in the generality of cases. See Yoder, 406 U.S. at 221.
The nebulousness of the governm ent’s interest, however, prevents us from engaging in the type of exacting scrutiny warranted here. W hat exactly is the government trying to ameliorate? Is it the integrity of “the health and insurance markets”? Surely, that cannot be the answer; the comprehensive sweep of the Affordable Care Act will remain intact with or without the mandate. Or is it a need to provide greater access to contraceptive care? If so, as w e note below, the reasons underpinning that need are tenuous at best. If we are to ass ess whether an exem ption for the Gilardis would pose an “impedim ent to [a governm ental] objective[],” we must first be able to di scern what that objective is. See id. at 221, 236. Simply reciting Mead is not enough.
The government’s invocation of a “wom an’s compelling interest in autonom y” is even less robust. The wording is telling. It im plies autonomy is not the state’s interest to assert. Nevertheless, the governm ent, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972), claims the m andate protects a woman’s ability to d ecide “whether to bear or beget a child.” See id. at 453.
Our difficulty in accep ting the go vernment’s rationale stems from looking at the Eisenstadt quote in its entirety: “If the right of privacy m eans anything, it is the right of the

26
individual, married or single, to be free from unwarranted governmental intrusion into matter so fundamentally affecting a person as the decision to bear or beget a child.” Id. (emphasis added). Regardless of what this observation means for us today, 7 it is c lear the government has f ailed to demonstrate how such a ri ght—whether described as noninterference, privacy, or autonom y—can extend to the compelled subsidization of a wo man’s procreative practices. Again, our searching exam ination is im possible unless the government describes its purpos es with precision. As with Mead, simply invoking Eisenstadt is not enough.
Equally unconvincing is the governm ent’s assertion that the mandate averts “negative health consequences for both the woman and the developing fetus.” From the outset, we note the science is deb atable and m ay actually undermine the government’s cause. For the potential m other, as one am icus notes, the World Health Organiza tion classifies certain o ral contraceptives as carcin ogens, marked by an in creased risk for breast, cervical, an d liver cancers. Br. of the Breast Cancer Prevention Institute, at 8–9. On the other hand, the contraceptives at issue have been approved by the Food and Drug Administration, supported by research touting their benefits. See Op. of Edwards, J., at 30. This tug-of-war gives us pause because the governm ent has neither acknowledged nor resolved these contradictory claims.
Even giving the governm ent the benefit of the doubt, the health concerns underpinning th e mandate can be variously described as legitim ate, substantial, perhaps even im portant,
7 See A. Raymond Randolph, Before Roe v. W ade: Judge Friendly’s Draft Abortion Opinion , 29 H ARV. J.L. & PUB. POL’Y 1035, 1048 (2006) (describing the tr ansformation of the right described in Griswold and Roe).

27
but it does not rank as compelling, and that m akes all the difference. Cf. Hutchins v. District of Colum bia, 188 F.3d 531, 541 (D.C. Cir. 1999) (en banc ). Caselaw concerning the analogous context of abortion is particularly illuminating in this regard. Time and again, the government’s interest in such cases has been deemed legitim ate and sub stantial. See Planned Parenthood of Se. Pa. v. Casey , 505 U.S. 833, 846 (1992); see also Gonzales v. Carhart , 550 U.S. 124, 145 (2007). But it has never been compelling. See Casey, 505 U.S. at 932 (Blackm un, J., concur ring in part and dissenting in part) (“[ W]hile a State has ‘leg itimate interests from the outset of the pregnancy in prot ecting the health of the woman and the life of the fetus that may become a child,’ legitim ate interests are not enough. To overcome the burden of strict scrutiny, the interests must be compelling.”). And we have no reason to believe otherw ise here. While we do not exclude the possibility that th e state’s interest in saf eguarding maternal or fetal health som etimes may be compelling, w e cannot draw such a conclusion in this particular context. See O Centro, 546 U.S. at 431.
Finally, we note “gender equality” is a bit of a misnomer; perhaps the governm ent labeled it as such for the veneer of constitutional importance attached to the term. More accurately described, the interest at issue is reso urce parity— which, in the analogous abortion context, the Supreme Court has rejected as both a funda mental right and as an equalprotection issue. See Harris, 448 U.S. at 317–18 (“Although the liberty protected by the Due Process C lause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlem ent to such funds as m ay be necessary to realize all the ad vantages of th at freedom.”); Maher v. Roe, 432 U.S. 464, 471 (1977) (“But this Court has

28
never held that financial need alone identifies a suspect clas s for purposes of equal protection analysis.”).
The government cites Roberts v. U.S. Jaycees , 468 U.S. 609 (1984), to advance its “gender equality” interest. There, the Court o bserved that “[a] ssuring women equal access to such goods, privileges, and ad vantages clearly furthers compelling state in terests.” Id. at 626. But when that observation is put into context, it fails to support the government’s case. U.S. Jaycees concerned an organization that had shut wom en out entire ly from a superior class of membership; it did not involve disparate membership fees or any resource-parity issue that may sustain the governm ent’s argument. See id. at 613, 628. T his case is quite different. Beyond the question of access, it is difficult for the government to suggest the interests of women are monolithic, and unlike U.S. Jaycees, the government’s proposed solution clearly impinges on other core prerogatives.
B
Let us assum e, however, the governm ent has a compelling interest. E ven then, we cannot see how the mandate is “the least restrictive m eans of furthering that . . . interest.” See 42 U.S.C. § 2000bb-1. It suffers from two flaws that cannot be overcom e. First, there are viable alternatives—presented by the Gilardis and others—that would achieve the substantive goals of the mandate while being sufficiently accommodativ e of religious exercise. See Appellants’ Br. at 61; see also Conestoga Wood , 724 F.3d at 414–15 (Jordan, J., dissenting). The governm ent could defeat these alternatives by proving they would “present an administrative problem of such magnitude, or . . . afford the exempted class so great a com petitive advantage, that such a requirement would . . . render[] the entire statutory schem e

29
unworkable.” Sherbert, 374 U.S. at 408–09. But it has m ade no such case; for all we know, a broader religious exem ption would have so little im pact on so small a group of e mployees that the argument cannot be made.

Moreover, the m andate is self-defeating. When a

government regulation “fail[s] to prohibit nonreligious

conduct that endangers [ its asserted] interests in a sim ilar or

greater degree” th an the reg ulated conduct, it is underinclusive by design.8 See Lukumi, 508 U.S. at 543. And

that underinclusiveness can suggest an inability to m eet the

narrow-tailoring requirement, as it raises serious questions

about the efficacy an d asserted interests served by th e

regulation. In this case, sm all businesses, businesses with

grandfathered plans (albeit temporarily), and an array of other

employers are exempt either from the mandate itself or from

the entire scheme of the Affordable Care Act. Therefore, the

mandate is unquestionably underinclusive. See Hobby Lobby,

723 F.3d at 1143; see also Conestoga Wood , 724 F.3d at 414

(Jordan, J., dissenting) (“It ca nnot legitimately be sa id to

vindicate a com pelling governmental interest because the

government has already exempted from

its reach

grandfathered plans, employers with under 50 employees, and

what it defines as ‘religious employers’, thus voluntarily

8 Underinclusiveness is ge nerally a relevant consideration of the narrow-tailoring inquiry. See Lukumi, 508 U.S. at 546 (“First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to acco mplish those interests. As we have discussed, all four ordinances are overbroad or underinclusive in substantial respects.” (em phasis added)). We recognize the considerable overlap between na rrow-tailoring underinclusiveness and the “ap preciable damage” co mponent of the co mpellinginterest prong. Nevertheless, we need not reconcile the distinctions between the two—under both f ormulations, the g overnment falls short. See supra at 24 n.6.

30
allowing millions upon millions of people—by so me estimates 190 million—to be covered by insurance plans that do not satisfy the supposedly v ital interest of providing the public with free contraceptives.” (internal citations omitted)).

A word on Lee. We would be remiss if we omitted this observation by the Court:

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they ac cept on their own conduct as a matter of conscience and faith are not to be superim posed on the statutory schem es which are binding on others in that activity.

455 U.S. at 261. The governm ent understands this quote to

foreclose free-exercise claims by employers like the Gila rdis.

But once again, context m atters. W e mention Lee in our narrow-tailoring discussion because that is where it belongs. 9

The Court made the statement quoted above while evaluating

whether the “limitation on religious liberty . . . [was] essential

to accomplish an overriding governm ental interest.” Id. at

257. In engaging in that inquiry, the Court exam

ined

“whether accommodating the Amish belief [would] unduly

interfere with fulfillm ent of the governmental interest [of

assuring contribution to the Social Security sch eme].” Id. at

259.

9 Lee also reinforces our doubts about whether the governm ent’s asserted interests ar e sufficiently compelling. The prope r functioning of the tax s ystem was perceived as an interest of “a high order,” see 455 U.S. at 260, akin to interests of “public safety, peace, or order” that justi fied government intrusions on religious exercise in the past, see Sherbert, 374 U.S. at 403. Given our many doubts about the interests posited, we are skeptical about whether the mandate is designed to address “the gravest abuses, endangering paramount interest.” See Sherbert, 374 U.S. at 406.

31
Lee was a rare case in which the government fended off a strict-scrutiny challenge by proving exemptions would “present an administrative problem of such magnitude . . . that such a requirem ent would have rendered the entire statutory scheme unworkable.” Sherbert, 374 U.S. at 408–09; see Lee, 455 U.S. at 158 (“Moreover, a co mprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to adm inister.”). Provin g the incompatib ility of the requested religious exemption was necessary to prove that the government had employed the least-restrictive means. See Lee, 455 U.S. at 259–60 (“Unlike the situation presented in [Yoder], it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs.”). Congress had carefully determ ined the breaking point of Social Security—any uncontemplated ex emptions could render the statutory scheme unworkable. See id. at 258.
In contrast, the governm ent has not proven—nay, even asserted—statutory unworkability h ere. Its “p rivate veto” concern is som ewhat on point , but without substance or substantiation, is nowhere near enough. I f we found narrow tailoring satisfied by m ere ipse dixit, the s trict-scrutiny inquiry would become feeble indeed. And unlike Lee, where the government successfully asse rted the So cial Security system required every contribution that Congress did not otherwise exempt, there is nothi ng to suggest the preventivecare statute would become unworkable if employers objecting on religious grounds could opt out of one part of a comprehensive coverage requirem ent. The Gilardis’ employees will still receive an array of services such as wellwoman visits, gestational-diab etes screenings, HPV testing, counseling for sexually -transmitted infections, support for

32

breastfeeding, and counseling fo r interpersonal and dom estic

violence. See Women’s Preventive Services Guidelines,

HEALTH

RES.

&

SERVS.

ADMIN.,

http://www.hrsa.gov/womensguidelines/. The provision of

these services—even without the contraceptive mandate—by

and large fulfills the statu tory command for insurers to

provide gender-specific preventive care. At the very least, the

statutory scheme will not go to pieces.

VIII

We conclude the district court erred in denying a preliminary injunction for the Gilardis on the grounds that their case was unlikely to succeed on the merits; therefore, we reverse the district court’s deni al of a prelim inary injunction for the individual owners. Because the court prem ised its decision entirely on a q uestion of law, we m ust remand for consideration of the other pre liminary-injunction factors. See Chaplaincy of Full Gospel Churches , 454 F.3d at 304. W e affirm the district court’s deni al of a prelim inary injunction with respect to the Freshway companies.

So ordered.

RANDOLPH, Senior Circuit Judge , concurring in part and concurring in the judgment:
I do not join parts III and IV of Judge Brown’s opinion because I do not believe we need to reach the potentially farreaching corporate free-exercise quest ion. Other courts in contraceptive-mandate cases have “decline[d] t o address the unresolved question of whether for -profit corporations can exercise religion.” Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 114 (D.D.C. 2012); see Legatus v. Sebelius, 901 F. Supp. 2d 980, 988 (E.D. Mich. 2012)c;f. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc) (m ajority opinion) (addressing only claim s by corporate, but not individual, plaintiffs). The sam e approach may be used without deciding the rights of the Freshway Corporations because the government could enforce the mandate against the corporations only by compelling the Gilardis to act. Since “it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J ., concurring in part and concurring in the judgment).
We should be particularly hesitant to pass unnecessarily on such a compl ex issue. If secu lar for-profit corporations can never exercise religion, what ofprofitable activities of organized religions? See Hernandez v. Comm’r, 490 U.S. 680, 709 (1989) (O’Connor, J., dissenting). If only religious for-profit organizations have a free-exercise right, how does one distinguish between religious and non-religious organizations? See Hobby Lobby Stores, 723 F.3d at 1136-37 & n.12; id. at 1170-75 (Briscoe, C.J., concurring in part and dissenting in part). Why limit the free-exerciseright to religious organizations when many business corporations adhere to religious dogm a? See Mark L. Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers? , 21 G EO. MASON L. REV. (manuscript at 11-24) (forthcoming fall 2013). If non-religious organizations do not have free-exercise r ights, why do non-

2
religious natural persons (athiests, for example) possess them? Torcaso v. Watkins, 367 U.S. 488, 495-96 & n.11 (1961). I f a corporate free-exercise right is recognized, in any form , there are equally challenging secondary questions. How should the beliefs of a religious corporation be determ ined? Can publicly traded corporations be religious? If so, do they take on the religions of their shareholders as a m atter of course? If a religious corporation is sold, does it retain its religious identity? These questions, challenging in themselves, would confront us in different permutations across the diverse entity f orms and organizational structures of the American business landscape.
I also write separately to emphasize the importance of the Freshway Corporations’ election to be taxed under subcha pter S of the Internal Revenue C ode. I.R.C. §§ 1361–1379. As a result, the Freshway Corporations do not pay corporate income taxes. See I.R.C. § 1363(a). Instead, the income of the Freshway Corporations passes through, pro rata, to their shareholders, the Gilardis. See I.R.C. § 1366(a)(1). Subchapter S disregards the corporate form for purposes of the corpora te income tax. We must ask why Congress would have disregarded the corporate form for subchapter S corporations but then wanted it imposed to prevent their owners fromasserting free-exercise rights under RFRA. There is no good answ er, or at least w e have received none. It would be incongruous to emphasize the corporate veil in rigid form for RFRA purposes while disregarding it for tax purposes under subchapter S. This inference is particularly compelling because both subchapter S and the “tax” that enforces the contraceptive m andate are part of the Internal Revenue Code. I.R.C. § 4980D.
The pass-through provisions of subchapter S matter for an additional reason. If the Gilardis do not orde r the Freshway Corporations to comply with the mandate, then their individual tax returns will be directly af fected. As shareholders of an S

3
Corporation (technically, they are tr eated as one shareholder under I.R.C. § 1361(c)(1)(A)(ii)), they would “take[] into account” their “pro rata share of the corporation’s . . . income” in determining their income tax liabilities. I.R.C. § 1366(a)(1). In other words, as a direct result of the mandate’s operation the Gilardis themselves will have less income in each taxable year. This underscores the “pressure on [the Gilardis] to m odify [their] behavior and toviolate [their] beliefs.”Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981).

EDWARDS, Senior Circuit Judge , concurring in part and dissenting in part:
TABLE OF CONTENTS
I. STANDING
A. The Companies Have No St anding to Pursue a Cause of Action Under RFRA
B. The Owners of the Co mpanies Have Standing in This Case to Pursue a Cause of Action Under RFRA
II. FREE EXERCISE JURISPRUDENCE
A. First Principles: The Limited Reach of the Free Exercise Clause
B. The Evolution of the Su bstantial Burden/Compelling Governmental Interest Test During the Twenty-s even Years from Sherbert to Smith
C. Congress’ Enactment of RFRA in Reaction to Smith: Restoration of the Su bstantial Burden/Compelling Governmental Interest Test
III. THE MANDATE DOES NOT SUBSTANTIALLY BURDEN APPELLANTS’ RELIGIOUS OBJECTIONS TO THE USE OF CONTRACEPTIVE PRODUCTS
IV. COMPELLING GOVERNMENTAL INTERESTS JUSTIFY THE MANDATE
* * * *
I agree th at Appellants Francis and Phil Gilardi hav e standing to pursue a cause of action under the Religious Freedom Restoration Act (“ RFRA”), 42 U.S.C. §§ 2000bb– 2000bb-4. I also agree with Judge Brown that the corporate

2
entities that are so lely owned by the Gilard is, Freshway Logistics, Inc. and Fresh Unlim ited, Inc., d/b/a Freshway Foods (collectively “Freshway”), do not have standing to seek relief under RFRA.

However, I strongly disagree with the majority’s holding on the m erits. Under the Patien t Protection and Affordable Care Act of 2010 (“Affordable Care Act”), 42 U.S.C. § 300gg-13(a)(4), Freshway is requir ed to include in its health care plan “[a]ll Food and Dr ug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affo rdable Care Act, 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see id. at 8725 n.1 (providing hyperlink to the applicable He alth Resources and Services Administration guidelines). Th e Gilardis contend tha t compliance with this dir ective—also known as “the Mandate”—will force them to violate “their Catholic religious beliefs” against contraception. Br. of Appellants at 14.

No one doubts the sincerity of the Gilardis’ religious

beliefs against contraception. Th eir legal claim, however, is

seriously wanting. The Gilardis complain that the Mandate

imposes a “substantial burden” on their “exercise of religion”

under RFRA, 42 U.S.C. § 2000bb-1(a),

because their

companies are required to provide health insurance that

includes contraceptive services. This is a specious claim.

It has been well understood since the founding of our nation that legislative restrictions may trump religio us exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were it otherwise, “professed doctrines of religious belief [would be] superior to the law of the land, and in effect . . . per mit

3
every citizen to becom e a law unto him self. Government could exist only in name under such circumstances.” Reynolds v. United States, 98 U.S. 145, 167 (1878). As the Court noted in Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988):
The First A mendment must a pply to all citize ns alike, and it can give to none of the m a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to re concile the various competing dem ands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the exten t that it is feasible, is for the legislatures and other institutions.
Id. at 452.
The Gilardis’ claim in this case finds no support in the law. They are not required to use or endorse contraception, and they rem ain free to openly oppose contraception. The Mandate requires nothing more than that th e companies, not the Gilardis, offer m edical insurance that includes coverage of contraceptive services for those employees who want it. The Supreme Court has never applied the Free Exercise Clause to find a substantial bur den on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is m erely required to take a ction that m ight enable other people to do things that are at odds with th e plaintiff’s religious beliefs. Therefore, the Gilardis cannot claim to be substantially burdened by the Affordable Ca re Act—a neutral s tatute of general applicability that regul ates public health and welfare and in no way limits their exercise of religion.

4
If I were to indulge the im plausible suggestion that the Mandate imposes a substantial burden on Appellants’ exercise of religion, I would disagree with the m ajority’s conclusion that the Government has failed to establish that the Mandate is the least restrictive means of furthering a compelling interest. When the record in this case is viewed through the lens of well-established precedent, the Mandate easily satisfies the requirements of the compelling governmental interest test.
As the Supreme Court made clear in United States v. Lee, 455 U.S. 252 (1982), a decision that has been repeatedly cited and never questioned:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the righ t to practice r eligious beliefs. When followers of a particu lar sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of co nscience and faith are not to be supe rimposed on the statutory schemes which are binding on others in that activity.
Id. at 261 (emphasis added). Freshway and the Gilardis get no pass on this rule m erely because the com panies are so lely owned by the Gilardis. Lee and other like authorities show that Appellants’ claim on the merits is spurious.

5
I. STANDING
A. The Companies Have No Standing to Pursue a Cause of Action Under RFRA
Although the Suprem e Court has long recognized Free Exercise protection for i ndividuals and religious organizations, “the nature, history, and purpose” of the Clause counsel against extending the ri ght to nonreligious corporate entities. See First Nat’l Bank of Boston v. Bellotti , 435 U.S. 765, 778 n.14 (1978); Grote v. Sebelius , 708 F.3d 850, 857 (7th Cir. 2013) (Rovner, J., dissenting) (“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or em ployees, exercise religion.” (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 12 91 (W.D. Okla. 2012))); see also Conestoga Wood Special ties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs ., 724 F.3d 377, 384 (3d Cir. 2013) (“Citizens United [v. FEC, 558 U.S. 310 (2010),] is . . . grounded in the notion that the Court has a long history of protecting corporations’ rights to free speech. . . . [T]here is [not] a similar history of c ourts providing free exercise protection to corporations.”).
The dispositive point here is that while general business corporations may engage in expression related to their business interests, independent of their owners’ interests, general business corporations “do not pray, worship, observe sacraments or take other re ligiously-motivated actions separate and apart from the inten tion and direction of their individual actors.” Grote, 708 F.3d at 857 (Rovner, J., dissenting) (quoting Hobby Lobby, 870 F. Supp. 2d at 1291). Therefore, “[r]eligious exercise is, by its nature, one of those ‘purely personal’ m atters referenced in [ Bellotti, 435 U.S. at 778 n.14] which is not the provi nce of a general business

6
corporation.” Id. Freshway has co nceded that it is not a religious organization for pur poses of the F ree Exercise Clause; therefore, the companies have no standing to pursue a claim under RFRA.
B. The Owners of the Companies Have Standing in This Case to Pursue a Cause of Action Under RFRA
Unlike Freshway, the Gilardis satisfy the requirements of Article III and are not barred for want of standing from pursuing a cause of action under RFRA.
The Government argues that
Plaintiffs cannot circumvent the distinction between religious organizations and secular com panies by attempting to shift the focus of the RFRA inquiry from Freshway Foods to the Gilardis, who are the corporations’ controlling shareholders. . . . The[] obligations [of the Affordable Car e Act] lie with th e corporations themselves. The Gilardis cann ot even establish standing to chal lenge the contraceptivecoverage requirement, much less demonstrate that the requirement may be regarded as a substantial burden on their personal exercise of religion.
Br. for the Appellees at 24 (em phasis added). It appears that the Government has conflated th e requirements of Article III standing with the m erits of the Gilardis’ claim under RFRA. Indeed, apart from the fore going passing reference to “standing,” the Governm ent never bothers to address the requirements of Article III. Rath er, it res ts principally on its claim that an action to redress injuries to a corporation cannot be maintained by a stockholder in his own name. Id. at 25.

7
To satisfy Article III’s standing requirements, a plaintiff must show that (1) he or she has suffered an “injury in fact” that is (a) concrete and part icularized and (b) actual o r imminent, not conjectural or hypo thetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is lik ely, as opp osed to m erely speculative, that th e injury will be redresse d by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The Gilardis easily satisfy these requirements.
As the sole owners of the companies, the Gilardis are inextricably tied to Fr eshway. They therefore suffer injury in fact because they cannot operate their businesses according to their faith. Br. of Appellant s at 16-17. Furtherm ore, the Gilardis injury is imm inent and concrete, it is caused by the Mandate, and it will be redre ssed by a favorable judicial decision. Therefore, th e Gilardis have Artic le III standing to pursue a cause of action under RFRA.
It is true that when a plaintiff’s asserted injury is based on governmental regulation of a thir d party, proof of standing may be problematic. See, e.g., Allen v. Wright, 468 U.S. 737, 758-59 (1984); Simon v. E. Ky. Welfare Rights Org ., 426 U.S. 26, 41-46 (1976); Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938-39 (D.C. Cir. 2004). This is because the necessary elements of causation and redressability in such a case rest on the independent choices of the regulated third party. As such, “it becom es the burden of the plaintiff to adduce facts showing that those cho ices have been or will be made in such m anner as to produce causation and permit redressability of injury.” Defenders of Wildlife , 504 U.S. at 562. There is no such third-pa rty standing problem with respect to the Gilardis’ claim.

8
This case presents a situation in which a for-profit corporation is fully owned by two related shareholders. Freshway and the shareholder-ow ners are separate legal entities, but are otherwise inex tricably connected. The Gilardis control the corporations and feel a concom itant responsibility to m anage the companies’ business activities consistent with their Catholic faith. This connection between the Government Mandate and Freshway’s conduct leaves little doubt regarding the requirem ents of causation and redressability under Article III. We have upheld standing in cases involving Government regulation of third parties where the connection between the Gove rnment action and the thirdparty conduct was less clear th an it is in this case. See, e.g., Tozzi v. U.S. Dep’t of Health & Human Servs. , 271 F.3d 301, 309-10 (D.C. Cir. 2001) (holdi ng that the Governm ent’s addition of dioxin to the list of known carcinogens caused municipalities and companies to reduce or end their u se of PVC plastic produced by the plai ntiff-manufacturer, and that a decision setting aside the Government’s action likely would give redress to the m anufacturer). There is no question here that the M andate compels Freshway to tak e action that the Gilardis challenge under RFRA . Therefore, causation and redressability are satisfied.
Finally, because RFRA provides that “[s]tanding to assert a claim or defense under [the Act] shall be governed by the general rules of standing under article III of the Constitution,” 42 U.S.C. § 2000bb-1(c), the Gila rdis clearly have m et the only requirements for standing that are set forth in RFRA.
The Government ignores the requirements of Article III standing and, instead, rests it s argument on “the bedrock principle that a corporation is ‘a distinct legal entity, with legal rights, obligations, powers, and privileges different from

9
those of the natural individuals who created it, who own it, or whom it employs.’” Br. for th e Appellees at 26 (citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001)). Apparently, the Gover nment means to sugg est that this “bedrock principle” effectively foreclos es the Gilardis ’ standing to pursue a claim under RFRA. Or, to put it another way, the Government seems to contend that the cited principle is the foundation for a prudential rule that limits a claimant’s right to pursue a cause of action under RFRA even when the claimant has satisfied the requi rements of Article III. Th e Government cites no Suprem e Court authority to support this proposition, and I can find none.
First, contrary to the Government’s argument, the general rule relating to shareh older suits is not inv iolate. As the Supreme Court noted in Franchise Tax Board of California v. Alcan Aluminium Limite d, there is “ an exception to this rule allowing a shareholder with a di rect, personal interest in a cause of action to b ring suit ev en if the corporation’s rights are also implicated.” 493 U.S. 331, 336 (1990). The Gilardis’ claim under RFRA asserts a cause of action in their own right for an alleged denial of their exercise of religion. This does not offend the shareholder standing rule.
Second, although the Governm ent does not explicitly assert that the sha reholder standing rule is a pruden tial standing requirement, the Si xth Circuit reached this conclusion in Autocam Corporation v. Sebelius, No. 12-2673, 2013 WL 5182544 (6th Cir. Sept. 17, 2013). While recognizing that RFRA provi des only that the Article III requirements must be m et for standing, the Sixth Circuit nonetheless concluded that prudent ial requirements must also be satisfied. The Autocam decision f irst points out that “‘Congress legislates against the background of [the Suprem e Court’s] prudential standing doctr ine, which applies unless it

10
is expressly negated.’” Id. at *4 (quoting Bennett v. Spear , 520 U.S. 154, 163 (1997)). The decision then goes on to say that, because “RFRA m akes no m ention of prudential standing” nor states “th at Article III constitute s the exclusive set of requirem ents for standing,” prudential standing requirements must apply in RFRA cases in addition to Article III requirements. Id. Finally, the decision holds that the shareholder standing rule is an established com ponent of prudential standing doctrine. Id. I respectfully disagree.
Autocam cites Franchise Tax in support of the proposition that the shareholder standing rule is a com ponent of prudential standing doctrine. B ut Franchise Tax merely stated that “we think” the “s hareholder standing” rule is “related to” the principle of prudential standing that requires a plaintiff to assert his own lega l interests. 493 U.S. at 336. Franchise Tax did not actually rely on the shareholder standing rule to conclude that the plaintiff lacked standing. Id. at 338. We can find no Suprem e Court decision applying the shareholder standing rule to uphol d the dismissal of a party’s law suit for want of “prudentia l standing,” nor can we find a decision citing Franchise Tax for this general idea.
Autocam’s reliance on Bennett v. Spear also seems misplaced. In Bennett, the p rudential standing doctrine to which the Court was referring wa s the “zone of interest” test, not the shareholder standing rule. 520 U.S. 162-63. In m any cases involving challenges to ad ministrative agency actions, in addition to determining whether a petitioner has Article III standing, a court m ust also dete rmine “whether the interest sought to be protected by the co mplainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional gua rantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153 (1970). The zone of interest i nquiry, which is “basically one

11
of interpreting congressional intent,” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 394 (1987), is a prudential requirement that applies unless expre ssly negated by Congress. See Bennett, 520 U.S. at 163. There is not the slightest doubt in this case that the Gilardis’ cause of action is within the zone of interests protected by RFRA.
As already noted, the Autocam decision rests in part on the assumption that “Congress did not remove [the] prudential [shareholder] standing lim itations when it enacted RFRA.” 2013 WL 5182544, at *4. This reasoning is fallacious because neither the Governm ent nor the Sixth Circuit cites any authority holding that the shareho lder standing rule was a prudential limitation governing Free Exercise claim s before the enactment of RFRA. Since the Supreme Court has never held that such a p rudential standing requirement limits who may pursue Free Exercise claim s, it is a non sequitur to sa y that “Congress legislates agai nst the background of [the Supreme Court’s] prudent ial standing doctrine.” Id. (alterations in original).
Third, Bennett makes clear that pru dential standing can be negated by Congress. If there were any prudential standing requirements applicable to Free Ex ercise claims before the enactment of RFRA, Congress elim inated them when RFRA was passed. In Bennett, the Court held that a statutory provision stating that “any person may commence a civil suit” was sufficient to make it clear that any party who satisfied the requirements of Article III could bring suit to challenge a n agency action under the statute. 520 U.S. at 164. The holding in Bennett controls the disposition in this case with respect to prudential standing. RFRA tellingly states that “[s]tanding to assert a claim or defense . . . shall be governed by the general rules of standing under article III of the Constitu tion.” 42 U.S.C. § 2000bb–1(c). The phras e “shall be governed by”

12
makes it plain that Article III, and nothing more, controls with respect to claims under RFRA.
In sum, I a gree with th e majority that th e Gilardis have standing to pursue a claim under RFRA. It is i mportant to note, however, that the Gilardis’ standing rests on their inextricable ties to Fresh way. The companies are operated as an extension of the two owners’ religious beliefs; there are no minority shareholders with different views. Thus, the cognizable constitutional injury—an alleged encroachment on personal religious exercise—only exists in this case because the Gilardis’ fully-owned com panies are a v ehicle by which they express their personal relig ious views, e.g., they direct delivery trucks to display bum per stickers conveying “their religious views regarding the sanctity of human lif e to the public.” Br. of Appellants at 11-12.
The Mandate applying to their com panies touches the Gilardis’ religious exercise rights under RFRA. The touching is not sub stantial, but it is sufficient to satisfy the requirements of Article III. The merits of the Gilard is’ claim under RFRA is quite another matter, however.
II. FREE EXERCISE JURISPRUDENCE
A. First Principles: The Li mited Reach of the Free Exercise Clause
Through the entire histor y of Free Exercise jurisprudence, the Suprem e Court has rem ained true to th e principle that the Free Exer cise Clause does not ensure freedom from any regulation to which a party holds a religious objection. Indeed, the Court has consistently recognized that any such rule would be problematic because it “would place beyond the law any act done under claim of

13
religious sanction.” Cleveland v. United States, 329 U.S. 14, 20 (1946); accord Reynolds, 98 U.S. at 167 (“To perm it this would . . . in ef fect . . . perm it every citizen to become a law unto himself. Government coul d exist only in nam e under such circumstances.”).
In early cases, the Su preme Court routinely held that religious activities m ust be subordinate to general public welfare legislation. Mormons we re thus not exem pt for the sake of religious exercise from laws crim inalizing polygamy. Reynolds, 98 U.S. at 145; Cleveland, 329 U.S. at 20. A child who wished to distribute religious literature with her f amily was not exem pt from child labor laws. Prince v. Massachusetts, 321 U.S. 158, 167 (1944) (“[T]he state has a wide range of power for li miting parental freedom and authority in things af fecting the c hild’s welfare; and tha t includes, to some extent, matters of conscience and religious conviction.”). And in Braunfeld v. Brown , the Court upheld the application of a Sunday cl osing law to Jewish m erchants who observed the Sabbath on Sa turday, even though the law “ma[de] the practice of their religious beliefs more expensive” by forcing them to close two days a week. 366 U.S. at 605; accord McGowan v. Maryland , 366 U.S. 420 (1961). The Sunday closing law was intended to establish a “day of community tranquility, respite and recreation” for the general well-being of citizens, Braunfeld, 366 U.S. at 602, and “[t]o strike down . . . legislation which im poses only an indirect burden on the exercise of religion . . . would radically restrict the operating latitude of the legislature.” Id. at 606.
When one studies the hi story of Free Exercis e jurisprudence in the Un ited States, it is in escapable that th e Free Exercise Clause of the Firs t Amendment has been narrowly defined for good reasons . This point was am plified by Justice O’Connor in Lyng:

14
However much we m ight wish that it wer e otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of governm ent activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on th e basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the ten ets of their religion. The First Am endment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, a nd courts cannot, offer to reconcile the various compe ting demands on government, many of them rooted in sinc ere religious belief, that inevitably arise in so d iverse a society as ours. T hat task, to the extent that it is f easible, is f or the legislatures and other institutions.
485 U.S. at 452.
B. The Evolution of the Substa ntial Burden/Compelling Governmental Interest Test During the Twenty-seven Years from Sherbert to Smith
RFRA states in relevant part:
(a) In general
Government shall not subs tantially burden a person’s exercise of religion even if the burden r esults from a rule of general applicability, except as provided in subsection (b) of this section.

15
(b) Exception

Government may substantially burden a person’s ex ercise of religion only if it demonstrates that application of t he burden to the person –

(1) is in furtherance of a co interest; and

mpelling governmental

(2) is the least restrictive means of f urthering that compelling governmental interest.

42 U.S.C. § 2000bb-1.

RFRA was enacted to overturn the Suprem e Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872 ( 1990), which had vitiated the substantial burden/compelling governmental interest test enunciated in Sherbert, 374 U.S. 398. See 42 U.S.C. § 2000bb(b)(1) (stating that a purpose of the statute is “to restore the com pelling interest test as set forth in” Sherbert). It is also undisputed that, in passing RFRA, Congress meant to restore the entire body of Free Exercise jurisprudence that developed during the twenty -seven years following the Court’s decision in Sherbert up until the Court’s decision in Smith. See, e.g., S. REP. NO. 103-111, at 8-9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898; H.R. REP. NO. 103-88, at 6-7 (1993). An exa mination of the relevant case law durin g these twenty-seven y ears confirms that, when it enacted RFRA, Congress never m eant to abandon the first principles that have historically lim ited the reach of the Free Exercise Clause.

The compelling interest framework was f irst articulated in Sherbert, where the Court held that South Carolina violated the plaintiff’s Free E xercise rights when it denied h er

16
unemployment benefits on the grounds that observing the Sabbath did not constitute “good cause” for declining work on Saturday. 374 U.S. at 400-01. Th e Court explained that the state must show a com pelling interest f or refusing to accommodate the p laintiff’s Sabbath observan ce. Sherbert cited Braunfeld approvingly. Unlike Sherbert, Braunfeld involved a situation in which there was “a strong state interest in providing one uniform day of r est for all workers,” and “[r]equiring exemptions for Sa bbatarians . . . appeared to present an adm inistrative problem of such m agnitude, or to afford the e xempted class so gr eat a com petitive advantage, that such a requirem ent would have rendered the entire statutory scheme unworkable.” Id. at 408-09. In Sherbert, however, as the Court later exp lained, the Government acted pursuant to a statutory schem e that created “a m echanism for individualized exemptions.” Bowen v. Roy, 476 U.S. 693, 708 (1986). When a “state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship . . . tends to exhibit hostility, not neutrality, towards religion.” Id.
In the majority of the Free Exercise cases decided during the twenty-seven years following Sherbert, the Court applied this compelling interest framework to hold either (a) that there was no substantial burden on religious exercise, or (b) that the burden was justified by the G overnment’s interest in administering a statutory schem e that, by its na ture, required uniform enforcement in order to be adm inistrable. The Court amplified these lines of analysis in Lee.
In Lee, the Court upheld the Gove rnment’s application of Social Security taxes to an Am ish employer who held a religious objection to th e Social Security system. Accepting the plaintiff’s “contention that both paym ent and receip t of social security benefits is forbidden by the Am ish faith,” the Court concluded that Social Security taxes imposed a

17
substantial burden on Lee’s Free Exercise. 455 U.S. at 257. Nonetheless, the Court found the burden justified because in Lee, as in Braunfeld, uniform application of the law was necessary to m ake general public welfare regulations administrable: “[M]andatory participation [by all covered employers and em ployees] is ind ispensable to the fisca l vitality of the . . . syste m,” id. at 258, and “[t]he tax system could not function if denom inations were allowed to challenge [it] because tax paym ents were spen t in a m anner that violates their religious belief.” Id. at 260.

In at least s ix more Free Exercise cases decided during the twenty-seven years post- Sherbert, the Court applied the substantial burden/compelling governmental interest framework to hold that the di sputed Government action or regulation imposed no substantia l burden, or that the burden was justified under the reasoning in Lee and Braunfeld:

 Gillette v. United Sta tes, 401 U.S. 437, 461 (1971)

(the Military Selective Service Act, exempting persons

who oppose participating in war generally, but not

those who hold religious obj ections to a particu lar

war, does n ot violate Free Exercise) (“Our cas es do

not at their farthest reach support the proposition that a

stance of conscientious opposition relieves an objector

from any colliding duty fixed by a dem

ocratic

government.”).

 Bob Jones Univ. v. United States , 461 U.S. 574, 60304 (1983) (denying tax-exem pt status to a religious school that practiced racial discrimination as part of a religious belief against interracial dating and m arriage did not violate Free Exerci se) (“Th[e] governmental interest [in eradicating racial discrimination] substantially outweighs whatever burden denial of tax

18
benefits places on petitione rs’ exercise of their religious beliefs.” (citing Lee, 455 U.S. at 259-60; Prince, 321 U.S. at 170; Gillette, 401 U.S. 437; and Reynolds, 98 U.S. 145)).

 Hernandez v. Comm’r , 490 U.S. 680, 698 (1989)

(denying tax deductible status to fees paid for training

sessions that were “the

central practice of

Scientology” did not violate Free Exercise); id. at 699-

700 (“Lee establishes that even a substantial b urden

would be justified by the ‘broad public inter est in

maintaining a sound tax system ,’ free of ‘myriad

exceptions flowing from a wi de variety of religious

beliefs.’” (quoting Lee, 455 U.S. at 260)).

 Tony & Susan Alamo Found. v. Sec’y of Labor , 471 U.S. 290, 303 (1985) (the Fa ir Labor Standards Act did not burden the religious exercise of a non-profit religious organization or its “associates,” who received food and shelter in exchange for work carrying out the organization’s commercial enterprises).

 Bowen, 476 U.S. at 706-07 (rejecting a claim that using a social security num ber to adm inister Government programs violated the Free Exercise of Native Americans who believed the num ber would impair their child’s spirit) (“[T]he nature of the burden is relevant to the standard the government must meet to justify the burden. . . . [A]dm inistration of complex [benefits] programs requires certain conditions and restrictions. Although in some situations, a mechanism for individual consideration will be created, a policy decision . . . to treat all applicants alike and . . . not . . . to become involved in case- by-case inquiries into the

19
genuineness of each religious objection . . . is entitled to substantial deference.” (citing Thomas v. Review Bd. of Ind. Em p’t Sec. Div. , 450 U.S. 707, 717-18 (1989); Sherbert, 374 U.S. at 404)).
 Lyng, 485 U.S. at 442 (no substantial burden on religious exercise even though building a road across a stretch of national forest that would “cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief sys tems and lifeway” of the Nativ e American tribes); id. at 450-51 (“[Sherbert] does not and cannot imply that incidental effects of governm ent programs, which m ay make it more difficult to pr actice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification. . . .”).
During this sam e twenty-seven year period, the Court found Free Exercise violations only when the disputed governmental policy allowed for individualized or discrete exemptions, and the state declined to grant exem ptions or exceptions to accomm odate religious beliefs. Three of th e four successful Free Exercise cases, like Sherbert, presented a discretionary decision as to wh ether the plaintiff had “good cause” for refusing employm ent that conflicted with their religious practice. Thomas, 450 U.S. 707 (claim ant denied unemployment benefits because he refused a job assem bling weapons on the grounds of a religious objection); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987) (claimant was denied unem ployment benefits because of refusal to work on th e Sabbath); Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S. 829 (1989) (claim ant denied unem ployment benefits because he refused to work on Sunday).

20
In the fourth case, Wisconsin v. Yoder , 406 U.S. 205 (1972), the Court held that th e state lacked a com pelling interest in r equiring Amish families to send their child ren to school for the ninth and tenth grades. The Court reiterated that “[i]t is tru e that activities of individuals, even wh en religiously based, are often s ubject to regulation . . . to promote the health, safet y, and general welfare.” Id. at 220 (citing Gillette, 401 U.S. 437; Braunfeld, 366 U.S. 599; Prince, 321 U.S. 158; Reynolds, 98 U.S. 145). But it concluded that the state had not shown why its educational objectives required Amish child ren to attend “ an additional one or two years of form al high sc hool . . . in place of their long-established program of in formal vocational education.” Id. at 222. In other words, there was no demonstrated need for a uniform attendance rule. Indeed, the accommodation sought by the Am ish was not at odds with the state’s objective of ensuring meaningful education for m inors. Therefore, the Court concluded that the Governm ent simply had not show n that the state’s educational objectives would be com promised by granting a discrete exemption for Amish students.
In sum, a careful read ing of the Suprem e Court’s Free Exercise decisions during the twenty-seven years pos tSherbert shows that Free Exercis e challenges to generally applicable, neutral Governm ent policies were rarely successful. See Michael W. McConnell, The Origins an d Historical Understanding of Free Exercise of Religion , 103 HARV. L. REV. 1409, 1417 (1990) (“Since 1972, the Court has rejected every claim for a free exercise exem ption to com e before it, outside the narro w context of unem ployment benefits governed strictly by Sherbert.” (footnotes omitted)).

21
C. Congress’ Enactment of RFRA in Reaction to Smith: Restoration of the S ubstantial Burden/Compelling Governmental Interest Test

After twenty-seven y ears of consistently applying the substantial burden/compelling governmental interest framework to decide cases ar ising under the Free Exercise Clause, the Supre me Court inexplicably discarded this analytical framework in Smith, 494 U.S. 872. The reactio n from Congress was swift and clear.

In Smith, the Court held that cr iminalizing the use of peyote did not violate the free ex ercise of Native Am erican sects that traditionally used the hallucinogen during religious ceremonies. The Court did not re quire the state to provid e a compelling justification for denying an exemption, stating that the Sherbert compelling interest test was “inapplicable” to “an across-the-board criminal prohibition on a particular form of conduct.” Id. at 884-85. W hile pre-Smith cases had often applied the compelling interest framework to conclude that a claimant’s religious exercise was not substantially burdened, or that the Government’s compelling interest justified any burden, Smith went a step further by eliminating this framework entirely.

In response to Smith, Congress enacted RFRA. The

statute notes that “the S upreme Court virtually elim inated the

requirement that the governm ent justify burdens on religious

exercise imposed by laws neutral toward religion.” 42 U.S.C.

§ 2000bb(a)(4). It then states th at the purpose of RFRA is to

“restore the compelling interest test as set f orth” in Sherbert

and Yoder and to “guarantee its app lication in all cases where

free exercise of religion is substantially burdened.”

Id.

§ 2000bb(b)(1).

22
Reports from both houses m ake clear that Congress sought to restore the entire body of Free Exercise jurisprudence as it existed during the twenty-seven years postSherbert. S. REP. NO. 103-111, at 9 (“Pre- Smith case law makes it clear that only governm ental actions that place a substantial burden on the exercise of religion must m eet the compelling interest test. . . . The act thus would not require such a jus tification for every gov ernment action that m ay have some incidental effect on religious institutions. . . . [T]he compelling interest test gene rally should not be construed more stringently or more leniently than it was prior to Smith.”); H.R. REP. NO. 103-88, at 7 (“This b ill is not a codification of any prior free ex ercise decision but rather the restoration of the legal standa rd that was ap plied in tho se decisions. . . . [ T]he [compelling interest] test g enerally should not be construed m ore stringently or mo re leniently than it was prior to Smith.”); 139 CONG. REC. S26178 (daily ed. Oct. 26, 1993) (statem ent of Se n. Kennedy) (“Not every free exercise claim will prevail, just as not every claim prevailed prior to th e Smith decision.”). Indeed, RFRA itself says that “the com pelling interest test as s et forth in prior Federal court rulings is a workab le test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5) (em phasis added).
Senator Hatch, a sponsor of RFRA, explained that the bill was amended to add the word “substantial” before “burden” so as to be “consistent with the case law developed by the Court prior to the Smith decision” that “does not require the Government to justify every act ion that has som e effect on religious exercise.” 139 C ONG. REC. S26180 (daily ed. Oct. 26, 1993) (statement of Sen. Hatch).

23

Since the passage of RFRA, the Suprem e Court has

confirmed that, as Congress in tended, RFRA reinstates the

full body of pre-Smith jurisprudence. In Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal , 546 U.S. 418 (2006),

the Court held that declining to permit a “Christian Spiritist”

sect’s sacramental use of hoasca, a hallucinogenic tea

prohibited by the Controlled Subs tances Act, violated Free

Exercise under RFRA. The Governm ent conceded that

prohibiting the sect from usi ng hoasca imposed a substantial

burden on the group’s religious exercise. Id. at 426. The Court

made clear that the principles of Braunfeld and Lee still apply

under RFRA, explaining that “the Governm

ent can

demonstrate a compelling interest in uniform application of a

particular program by offeri ng evidence that granting the

requested religious accomm odations would serious ly

compromise its ability to administer the program.” Id. at 435.

Applying these principles, the Court concluded that the Government failed to prove that the Controlled Substances Act required uniform application in order to be administrable. Critical to this conc lusion was the fact th at the Controlled Substances Act authorized the Attorney General to “‘waive the requirement for registrati on of certain m anufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.’” Id. at 432 (quoting 21 U.S.C. § 822(d)). Furthermore, the Act granted an exemption to all members of Native American tribes for the sacramental use of peyote. Id. at 433. “The well-established peyote exception also fatally undermines the Government’s broader contention that the C ontrolled Substances Act establishes a clo sed regulatory system that admits of no exceptions under RFRA.” Id. at 434. O Centro easily fits within the body of Free Exercise cases decided during the twenty -seven years po stSherbert.

24
III. THE MANDATE DOES NOT SUBSTANTIALLY BURDEN APPELLANTS’ RELIGIOUS OBJECTIONS TO THE USE OF CONTRACEPTIVE PRODUCTS
Requiring Freshway’s health plan to cover contraceptive products does not substantially burden the Gilardis’ personal objection to using contraception. The Gilard is have stand ing in this case only because of the alleged injuries that arise from the Mandate’s application to th eir companies, not to them. Their alleged injuries are sufficient to satisfy the requirements of Article III, but they have failed to show that the Mandate substantially burdens their personal religious activities.
There are three reaso ns why the Mandate does not substantially burden the Gilardis’ “exercise of religion.” First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway’s em ployees to use contraceptives any m ore directly than they do by authorizing Freshway to pay wa ges. Finally, the Gila rdis remain free to express publ icly their disapproval of contraceptive products.
Because the Mandate d oes not req uire the Gilardis to personally engage in conduct pr ohibited by their religious beliefs, this case differs from every case in which the Court has found a substantial burden on religious exercise. In O Centro and Yoder, for instance, there was no dispute as to whether the regulations substant ially burdened the plaintiffs’ religious exercise. The disputed Government policies in those cases very plain ly prevented the plaintiffs, personally, from engaging in their religious pr actices (using hoasca and hom eschooling one’s children), and the only question was whether the burdens were justified.

25

In contrast, the Gilardis cannot claim that they are being

forced to u se contraceptives, which would directly conflict

with their religious b eliefs. Rather, they c omplain that

because their companies are required to purchase insurance

that includes coverage for contracep tion, they as owners are

enabling third parties to engage in conduct that they oppose.

This is a specious claim . The Gilardis can find no support for

their position in th e controlling case preceden ts. No Free

Exercise decision issued by the Suprem

e Court has

recognized a substantial burden on a plaintiff’s religious

exercise where the plaintiff is not himself required to take or

forgo action that violates his religious beliefs, but is m erely

required to take action that might enable other people to do

things that are at odds with the plaintiff’s religious beliefs.

Furthermore, the Mandate does not require the Gilardis to directly facilitate employees’ use of contraception. The Gilardis do not contend that their religious exercise is violated when Freshway pays wages th at employees might use to purchase contraception, and th e Mandate does not require the Gilardis to facilitate the use of contraception any m ore directly than they already do by authorizing Freshway to pa y wages. Amici supporting the Gilardis’ position attempt in vain to distinguish between the Mandate and paying wages. First, they argue th at the Ma ndate requires th e Gilardis to become an “essen tial cause” of increas ing the num ber of employees who use contracep tion. Br. of 28 Catholic Theologians and Ethicists at 22- 23. But the Gilard is are n o more of an “essen tial cause” of increasing the us e of contraception when they authorize Freshway to pay for a benefits plan that em ployees might use to get contraception than they are when they authorize wages that an em ployee might use to purchase contraception she would not otherwise be able to afford.

26
Amici also attempt to d istinguish between the Mandate and paying wages by arguing th at covering contraceptive products is akin to the difference between giving an underage person a “gift certificate” to buy beer, and giving him money that he m ight spend on beer. Id. at 21-22. But this analogy fails. Health coverage under th e Mandate is not like giving a gift certificate to buy beer specifically, but more like a g ift certificate to a supermarket where the recipient may purchase whatever is available, including beer. Just as the Governm ent does not directly encourag e religion when it provides vouchers that recipients may choose to spend on religious schools, the Gilardis do not di rectly encourage the use of contraception when they provi de insurance coverage that recipients may choose to spend on contraceptives. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (“The incidental advancement of a religious m ission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the [ party granting the benefits], whose role ends with the disbursem ent of benefits.”).
Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death pe nalty being required to pay taxes that f und executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execu tion will take p lace.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is tha t the Manda te does not require the Gilardis to have nearly this degree of personal involvement in prov iding contraceptives. The Mandate does not require the Gila rdis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to em ployees. Under the Em ployee

27
Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being inform ed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Am ericans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, th e Gilardis are free to procure Mandate-compliant coverage for their em ployees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.
Finally, the Gilard is suggest that b ecause Freshway is required to offer health insuranc e that includes contraception, they as owners are being pre ssed to effectively endorse the use of contraception. This clai m fails because the Suprem e Court has held that a party’s First Am endment rights are not violated when he must comply with a Government policy that sends a message contrary to his be liefs. Hence, an institute of higher education may be requir ed to host m ilitary recruiters on campus, even if it strongly op poses military policy. See Rumsfeld v. Forum for Academic & Institu tional Rights, Inc., 547 U.S. 47 (2006). P arties who com ply with a regulation contrary to their beliefs “r emain[] free to disassociate [themselves] from those views.” Id. at 65 (citation omitted). The Gilardis likewis e remain free to “disassociate” themselves from any message th at might suggest tha t they endorse contraception. They m ay denounce publicly the use of contraception, for instance, by issuing a statem ent to Freshway’s employees expressing their disapproval of the Mandate and contraception; and th ey are free to continu e

28
authorizing Freshway to display slogans on company delivery trucks expressing their views about the sanctity of human life. There are countless ways the G ilardis can m ake clear that their involuntary compliance with federal law does not signify that they endorse the use of contraception. See Group Health Plans and Health Insu rance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012) (“Nothing in these f inal regulations precludes em ployers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care pro viders to p rescribe contraceptives if doing so is against their religious beliefs.”).
For the foregoing reasons, the Gilardis sim ply cannot establish that the Mandate substantially burdens their personal objection to contraception. The Mandate does not regulate the Gilardis; it regu lates their companies. So the Mandate requires nothing of the Gilardis, save what is required of any managers of business operations subject to federal law. And we do not norm ally assume that m anagers of for-profit companies are personally affronted by the requirem ents of federal law.
More particularly, the Mandate does not require the Gilardis to use or purc hase contraception themselves; it does not require them to f acilitate Freshway’s employees’ use of contraceptives any more directly than they do b y authorizing Freshway to pay wages; and they rem ain free to publicly express their disapproval of contraceptive prod ucts. Because the Gilardis cannot show a substantial burden on their personal religious exercise, they cannot prevail on the m erits of their RFRA clai m as a m atter of law. I would therefore affirm the District Cou rt’s denial of a preliminary injunction

29
on this ground, without inquiring into whether the Mandate serves a compelling governmental interest.
IV. COMPELLING GOVERNMENTAL INTERESTS JUSTIFY THE MANDATE
Even though I would deny the prelim inary injunction on the ground that the Gilardis ca nnot show that the Mandate substantially burdens their exer cise of religion, I will als o address the Governm ent’s compelling interests in o rder to respond to my colleagues’ opinion on this point.
In O Centro, the Court m ade clear that “the Governm ent can demonstrate a compelling interest in uniform applicatio n of a particular program by offering evidence that granting the requested religious accomm odations would serious ly compromise its ability to administer the program.” 546 U.S. at 435. The Governm ent has m et this test in defending the Mandate. The Mandate therefore satisfies the compelling interest test under O Centro, Lee, Braunfeld, and Hernandez.
The Mandate obviously serves the compelling interests of promoting public health, welfare, and gender equality. Br. f or the Appellees 38-40. See, e.g., Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte , 481 U.S. 537, 549 (1987) (“Even if [the Act] does work som e slight infringement on [plaintiffs’] right of expressive association, that infringement is justified because it serves the State’s compelling interest in eliminating discrimination against women.”); Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (“Assuring w omen equal access to . . . goods, privileges, and advantages clearly furth ers compelling state interests.”); Prince, 321 U.S. 158 (upholding child labor laws); Olsen v. DEA , 878 F.2d 1458, 1462 (D.C. Cir. 1989) (upholding laws regulating drug use).

30
Contraceptive products are used for health care purposes beyond preventing unwanted pregnancy. They are prescribed to prevent disease. Contraceptives reduce the risk of ovarian, endometrial, and gynecologic cancers. See Br. of the Ovarian Cancer Nat’l Alliance, et al. at 5-25 (describing how the Mandate is based, in part, on ensuring that wom en have access to cancer-preventative benefits unrelated to preven ting pregnancy). Contraceptives and sterilization als o preserve the health of adult women with diabetes, lupus, and heart conditions, who would be at physical risk if they became pregnant. See Br. of Nat’l Health Law Program, et al. at 7-13.

Coverage for contraceptive products eliminates gender

discrimination because the cost of contraception falls

disproportionately on women, and the costs of health care are

generally much higher for wo men than men. Br. for the

Appellees at 41 (“Congress found that . . . ‘wom

en of

childbearing age spend 68 percent m ore in out-of-pocket

health care costs than men.’” (quoting 155 C ONG. REC.

S28843 (daily ed. D ec. 1, 2009) (statem ent of Sen.

Gillibrand))). Gender inequality in the cost of health ca re is

caused, in part, by the fact that many health services specific

to women have historically been excluded from insurance

coverage. See Br. for Nat’l W omen’s Law Center, et al. at 7

(“Congress intended . . . to help alleviate the ‘punitive

practices of insurance com panies that ch arge women more

and give [them] less in benefits.’” (quoting 155 C ONG. REC.

S28842 (Dec. 1, 2009) (statement of Sen. Mikulski))).

Furthermore, it is cr itical to th e functioning of the Affordable Care Act’s statutory scheme that exemptions from the Mandate are, like exem ptions from the S ocial Security tax, extremely limited. Allowing religious exemptions to forprofit, secular corporations would undermine the universal coverage scheme: If the Gilardis ’ companies were exem pted

31

from covering contraception, another corporation’s owners

might just a s well se ek a reli gious exemption from covering

certain preventative vaccines. A Christian Scientist, whose

religion has historically opposed conventional m edical

treatment, might claim that his corporation is entitled to a

religious exemption from cove ring all m edical care except

healers who treat m edical ailments with prayer. Paul Vitello,

Christian Science Seeks Truce with Modern Medicine , N.Y.

TIMES, Mar. 24, 2010, at A20,

available at

http://www.nytimes.com/2010/03/24/nyregion/24heal.html?p

agewanted= all&_r= 0 (last vis ited Oct. 13, 2013). Muslim or

Jewish business owners m ight claim a religious exem ption

from covering any m edication derived from pork products

(for instance, the gelatin used to make capsules or coating of

many pills). S. Pirzada Sattar & Debra A. Pinals, Letter to the

Editor, When Taking Medications Is a Sin , 53 PSYCHIATRIC

SERVICES

213 (2002),

available

at

http://journals.psychiatryonline.org/article.aspx?Volume=53&

page= 213&journalID= 18 (last vi sited Oct. 13, 2013). Just as

in Lee and Braunfeld, “[t]he whole point of . . . a ‘uniform ’

[policy] would . . . be[] defeated by exceptions.” O Centro,

546 U.S. at 435 (quoting Sherbert, 374 U.S. at 408

(discussing Braunfeld, 366 U.S. at 608-09)).

The existing exemptions to the Mandate do not establish that the Government lacks a com pelling interest in enforcing it against all large, for-profit secular employers. First, the exemptions are not as broad as the Gilardis make them out to be. The exem ption for grandfathered plans is tem porary, intended to be a m eans for gradually transitioning em ployers into mandatory coverage. A hea lth plan loses grandfathered status as soon as it changes its cost-sharing, benefits, or employer-contribution terms. 45 C.F.R. § 147.140(g). The Department of Health and Human Service’s “m id-range estimate” is that 66% o f small employer plans and 45% of

32
large employer plans will relinquish their grandfathered status by the end of 2013. Interim Final Rules for Group Health Plans and Health Insuran ce, 75 F ed. Reg. 34,538, 34,552 (June 17, 2010).
In fact, the Gilardis voluntar ily relinquished Freshway’s grandfathered status b y increasing the em ployees’ copayments for doctor visits. Br. for the Appellees at 43; Joint Appendix at 25. That the Gila rdis voluntarily relinquished grandfathered status d espite their o pposition to the Mandate supports the Departm ent’s prediction that m ost other employers are likely to do so in the short te rm, as they will inevitably modify their coverage plans to accomm odate changes in the cost of health care.
Furthermore, contrary to the Gilardis’ suggestion, employers with fewer than fift y employees are not specifically exempted from the Mandate. Rather they are exempt altogether from being required to provide health coverage under the Affordable Care Act. 26 U.S.C. § 4980H(c)(2)(A). Small businesses that do elect to provide health coverage—as many do in order to offer m ore competitive benefits to em ployees and to receive tax benefits—must provide covera ge that com plies with th e Mandate. Br. for the Appellees at 42. In other words, the Mandate would apply to the Gilardis even if they had fewe r than fifty employees, so long as they chose to provide health coverage, as they contend they are committed to doing. Br. of Appellants at 13-14.
The only perm anent, specific exem ption from the Mandate is for religious, non-profit em ployers. 45 C.F.R. § 147.130(a)(1)(iv)(B) (current ru les defining religious nonprofits in terms of Internal Revenue Code status); Coverage of Certain Preventative Services Under the Affordable Care Act,

33
78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (proposed rules exempting any non-profit organiza tion that holds itself out as a religious organization). This exemption for religious nonprofits surely does not underm ine the Government’s position that uniform enforcement is ess ential to the s cheme, in the way that th e exemption for Nativ e American tribes us ing peyote was fatal to such a claim in O Centro. In O Centro, the existing exemption for the religious use of peyote by Native American tribes was much larger than the exemption sought by the 130 members of the Christian Spiritist sect. If the Controlled Substances Act wa s administrable with a m uch larger exemption for all Native Am ericans, why would a smaller exemption for 130 hoasca users defeat the schem e? Furthermore, the nature of the exem ption sought in O Centro—the Christian Seperatist s ect’s sacramental use of hoasca—was essentially indistingui shable from the nature of the exemption that had already been granted for the Nativ e American tribes’ sacramental use of peyote.
This case is a far cry from the situation seen in O Centro. The exemption sought by the Gilard is for secular, for-profit corporations is potentially much larger than the exemption for non-profit religious entities that exists under the Mandate. In addition, the exem ption sought in this case is fundam entally different from the exe mption that has already been granted. The Court has long recognized that federal workplace regulations apply differently to secular, for-profit corporations than to non-profit re ligious organizations. E.g., HosannaTabor Evangelical Lutheran Church and School v. EEOC , 132 S. Ct. 694 (2012) (Free Exercise Clause shields a minister of a religious non-profit from being sued for violating the Americans with Disabilities Act); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U.S. 327 (1987) (Title VII’s exemption of non-profit churches from provisions prohibiting relig ious discrimination does not

34

violate Establishment Clause); NLRB v. Catholic Bishop of

Chicago, 440 U.S. 490 (1979) (int erpreting the National

Labor Relations Act as ex

empting Church-operated

educational institutions from National Labor Review Board’s

jurisdiction). In exempting religious non-profits, the

Department of Health and Hu man Services reasoned that

“[r]eligious accommodations in re lated areas of federal law,

such as the exem ption for religious organizations under Title

VII of the Civil Rights Act of 1964, are available to nonprofit

religious organizations but not to for-p rofit secular

organizations.” Coverage of Certain Preventive Services

Under the Affordable Care Act, 78 Fed. Reg. 8456, 8462

(Feb. 6, 2013). The A mericans with Disabilities Act also

exempts religious non-profits, but not for-profit, secular

corporations. 42 U.S.C. § 12113(d)(1), (2).

If an exem ption for religious non-profits were taken as proof that the Governm ent lacks a com pelling interest in enforcing regulations against s ecular, for-profit corporations, this would suggest that secula r corporations should likewise be entitled to re ligious exemptions from Title VI I, the National Labor Relations Act, and the A mericans with Disabilities Act. Furtherm ore, the Mandate’s exception for religious non-profits is not hing like the exceptions in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520 (1993), where the ordinan ces prohibiting anim al sacrifices were so replete with ex ceptions that the Court concluded their purpose was “suppr ession of . . . the Santeria worship service.” Id. at 534.

It is very important to recall that the Court in Lee rejected the argument that limited exemptions from the Social Security tax proved the Governm ent lacked a com pelling interest in uniform enforcement all for-profit em ployers. The Court explained that Congress was justif ied in “dr[awing] a line . . .

35
exempting the self-em ployed Amish but not all persons working for an Am ish employer.” 455 U.S. at 261. The Court’s reasoning is equally applicable here: “When followers of a particular sect enter into commercial activity as a matter of choice, the lim its they accept o n their own conduct as a matter of conscience and faith are not to be superim posed on the statutory schem es which ar e binding on others in that activity.” Id. The Court explained th at “[g]ranting an exemption from social security taxes to an em ployer operates to impose the em ployer’s religious faith on the e mployees.” Id.; accord Hernandez, 490 U.S. at 700 (“The fact that Congress has already crafted som e deductions and exemptions in the Code also is of no consequence, for the guiding principle is that a tax ‘must be uniformly applicable to all, exc ept as Congress provides explicitly otherwise.’” (quoting Lee, 455 U.S. at 261)).
Freshway, the em ployer in Lee, and other f or-profit corporations are different from religious non-profits in that they use lab or to make a profit , rather than to perpetu ate a religious values-based m ission. In choosing to use labor for financial gain, the corporat ion and its owners subm it themselves to leg islation—such as Title VI I, the Fair Labo r Standards Act, the Americans with Disabilities Act, and th e Affordable Care Act—designed to protect the health, safety, and welfare of em ployees. They cannot voluntarily capitalize on labor but invoke their persona l religious values to deny employees the benefit o f laws enacted to prom ote employee welfare.
Because the Gilardis have voluntarily chosen to capitalize on labor, they have agreed to accept certain limitations on their conduct that arise from the Government’s compelling interest in securing the safety and welfare of their em ployees. For this reason, even if the Mandate were a substantial burden

36
on the Gila rdis’ religious exercise—which it is not— this record supports the conclusion th at the burden is justified by the Government’s compelling in terest in enforcing a publicwelfare statutory schem e that, like the Social Security tax, simply “could not function” if for-profit em ployers of various “denominations were allowed to challenge the . . . syste m because . . . paym ents were spent in a m anner that violates their religious belief.” O Centro, 546 U.S. at 435 (quoting Lee, 455 U.S. at 258).
The judgment of the District Court should be affirmed.

 
 http://www.supremecourt.gov/orders/courtorders/070114zr_eeam.pdf, redacted to include only Hobby Lobby related orders

(ORDER LIST: 573 U. S.)

TUESDAY, JULY 1, 2014

CERTIORARI -- SUMMARY DISPOSITIONS

13-482 13-567

AUTOCAM CORPORATION, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). GILARDI, FRANCIS A., ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit For
further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

1

13-591

EDEN FOODS, INC., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

2

CERTIORARI DENIED

13-915 13-919 13-937

DEPT. OF H&HS, ET AL. V. GILARDI, FRANCIS A., ET AL. BURWELL, SEC. OF H&HS, ET AL. V. NEWLAND, WILLIAM, ET AL. BURWELL, SEC. OF H&HS, ET AL. V. KORTE, CYRIL B., ET AL.
The petitions for writs of certiorari are denied.

4