Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 1 of 26 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., a Missouri )

Corporation,

)

)

CHARLES N. SHARPE,

)

a Missouri resident,

)

)

JUDI DIANE SCHAEFER,

)

a Missouri resident, and

)

)

RITA JOANNE WILSON,

)

a Missouri resident,

)

)

Plaintiffs,

)

)

vs.

)

)

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,

)

)

TIMOTHY F. GEITHNER, in his official )

capacity as the Secretary of the United )

States Department of the Treasury,

)

)

UNITED STATES DEPARTMENT OF )

LABOR, and

)

)

HILDA L. SOLIS, in her official capacity )

as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

Case No. 2:12-cv-00092

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 2 of 26 PageID #: 2
	  
COMPLAINT Plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer and Rita Joanne Wilson, for their Complaint, state:
NATURE OF THE ACTION 1. This case challenges regulations issued under the Patient Protection and Affordable Care Act of 2010 (“Act”) that force the Plaintiffs to either (a) violate their sincerelyheld religious opposition to abortion on demand or (b) pay heavy fines and penalties (Sharpe Holdings, Inc. and Charles N. Sharpe) or lose health insurance coverage (Judi Diane Schaefer and Rita Joanne Wilson). 2. Sharpe Holdings, Inc. (“Sharpe Holdings”) is a Missouri for-profit general business corporation that employs more than 50 men and women in a variety of industries, including, but not limited to, farming, dairy, creamery, and cheese-making. Sharpe Holdings offers health insurance to its employees through its own self-insured program. 3. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the business of Sharpe Holdings, and he strives to operate Sharpe Holdings’ business according to Christian principles and coinciding sincerely held religious beliefs. 4. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees. Health insurance coverage is a benefit of Schaefer’s and Wilson’s employment at Sharpe Holdings. Schaefer and Wilson pay a portion of the premiums required in order to maintain their coverage. Said premiums partially fund medical services provided to other employees covered

	  

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under the same plan. Schaefer and Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice.
5. The Plaintiffs’ sincerely held religious beliefs forbid them from funding, participating in, paying for, sharing the costs of, training others to engage in, or otherwise supporting or providing a means of abortion on demand.
6. The Plaintiffs do not believe that abortion on demand constitutes medicine, health care, or a means of providing for the well-being of persons. Rather, Plaintiffs believe abortion on demand involves gravely immoral practices and the intentional destruction of innocent human life.
7. The Defendants have issued an administrative rule (“Mandate” or “Final Rule”) pursuant to authority created by the Act requiring that group health plans cover, without cost sharing, “all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning as early as August 1, 2012. Such contraceptive methods include certain drugs and devices such as the “Plan B” and “ella” pills and copper IUDs, all of which are widely known as abortifacients in that they frequently function to destroy fertilized eggs, which Plaintiffs consider to be abortion on demand. This not only forces the Plaintiffs to treat abortion on demand and related education and counseling as health care, but also subverts the expression of the Plaintiffs’ religious beliefs (which they share with millions of other Americans), by forcing them to fund, promote, and assist and participate in the provision of the acquisition of drugs and services which they believe involve gravely immoral practices, including the intentional destruction of innocent human life.

	  

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8. The Mandate unconstitutionally forces the Plaintiffs to violate their sincerely held religious beliefs—under threat of heavy fines and penalties for Sharpe Holdings and Charles N. Sharpe, and under threat of lost health coverage or employment at Sharpe Holdings for Judi Diane Schaefer and Rita Joanne Wilson. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious teachings. Having to pay a fine to government authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. Forcing an employee to fund government-dictated speech that is directly at odds with her own speech and religious teachings, in order to maintain insurance as a job benefit, is similarly wrong.
9. The Defendants’ refusal to accommodate conscience is selective. A patchwork of exemptions shows that Defendants do not believe every insurance plan in the country needs to cover these services. For instance, Defendants have issued thousands of waivers from the Act (in its entirety) for many large corporations and labor unions, purely for reasons of commercial or political convenience. Other exemptions have been awarded based on how old a plan is, or how large an employer is. There are several other exemptions from the Act and from the Mandate, for a variety of groups and for a variety of reasons, including exemptions for certain narrowly defined religious employers that have found favor with the Defendants. There is, however, no exemption for for-profit religious employers and the employees they insure, like the Plaintiffs.
10. Defendants acted with full knowledge of the beliefs of thousands of employers and the employees they insure, like the Plaintiffs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted

	  

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as nothing other than callous disregard of the religious beliefs of the Plaintiffs and many other Americans. The Defendants accordingly seek refuge in this Court.
JURISDICTION AND VENUE 11. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,	  1343(a)(4), 1346(a)(2), and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1. 12. Venue lies in this district pursuant to 28 U.S.C. § 1391(e).
THE PARTIES 13. Plaintiff Sharpe Holdings is a for-profit Missouri corporation residing in Shelby County, Missouri. 14. Plaintiff Charles N. Sharpe is the owner, founder, chairman of the board and chief executive officer of Plaintiff Sharpe Holdings. He is a resident of Shelby County, Missouri. 15. Plaintiff Judi Diane Schaefer is an individual residing in Shelby County, Missouri. 16. Plaintiff Rita Joanne Wilson is an individual residing in Shelby County, Missouri. 17. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 18. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 19. Defendant HHS is an executive agency of the United States government and is

	  

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responsible for the promulgation, administration, and enforcement of the Mandate. 20. Defendant Hilda Solis is the Secretary of the United States Department of
Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
21. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
22. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
23. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Plaintiffs’ Religious Beliefs and Practices Related to Abortion
24. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the business of Sharpe Holdings, and he strives to operate Sharpe Holdings’ business according to Christian principles and coinciding sincerely held religious beliefs. He is also a minister of the gospel.
25. Sharpe Holdings is a Missouri, for-profit corporation that employs individuals in a variety of industries, including but not limited to, farming, dairy, creamery and cheesemaking. Sharpe Holdings promotes the Christian beliefs, practices, and aspirations espoused

	  

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by its founder and owner, Charles N. Sharpe. Outward examples include its milk tankers,
which are emblazoned with the message “Jesus is the Answer,” and its milk and cheese
products, marketed under the name of Heartland Creamery, which substitute the “T” in
Heartland with a Christian cross.
26. The Sharpe Holdings website describes the corporation’s various enterprises and
contains several demonstrations of its faith-based mission, including, for instance, the front
page of the website which is subtitled “Transforming Hearts and Lives through the Power of
Jesus Christ.” See http://www.sharpeholdingsinc.com/.
27. Sharpe Land & Cattle is a division within Sharpe Holdings. The Sharpe
Holdings website says the following of Sharpe Land & Cattle:
The goal of Sharpe Land & Cattle goes far beyond the further growth of an already thriving agricultural enterprise. The heart behind the organization aspires to help people rebuild their lives through the changing power of Jesus Christ. By modeling their work ethic before the men at the Recovery Center, and by providing vocational opportunities for those in their community, the staff of Sharpe Land & Cattle strives to implement Godly principles in every aspect of their business. By remaining true to this calling, Sharpe Land & Cattle has experienced a sovereign move of God—and they plan to continue operating under God’s blessing.
http://www.sharpeholdingsinc.com/slc.html.
28. Christian belief and practice are integral to the identity of Sharpe Holdings, and
adherence to Christian tenets is deeply and sincerely integral to Sharpe Holdings.
29. Sharpe Holdings seeks to defend and promote certain moral and ethical
standards in its employees, including not just teaching them a life-sustaining work ethic but
also promoting a belief in the sanctity and quality of life which precludes abortion on demand
through abortifacient drugs and devices or otherwise.
30. As part of its mission, Sharpe Holdings promotes the well-being and health of its
employees. In furtherance of these commitments, Sharpe Holdings ensures that its employees

	  

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have comprehensive medical coverage through a self-insured plan. The plan purposely excludes coverage for abortions or abortifacient drugs or devices.
31. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees. Health insurance coverage is a benefit of their employment at Sharpe Holdings. They pay a portion of the premiums required in order to maintain this coverage. Said premiums partially fund medical services provided to other employees covered under the same plan.
32. Mr. Sharpe, Ms. Schaefer and Ms. Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice. They have sincerely held religious beliefs that human life begins at conception and that from that point it is sacred and worthy of protection.
33. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of health care coverage for abortions or abortifacient drugs and devices, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
34. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of information or guidance to others under the same insurance plan about locations at which they can access abortifacients, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
35. The Plaintiffs’ health insurance plan year begins on January 1, 2013. II. Abortifacient Drugs and Devices
36. “Plan B” (levonorgestrel) was approved by the Food and Drug Administration (“FDA”) as a prescription-only drug product on July 28, 1999 and was approved by the FDA for over-the-counter sales on August 24, 2006 for women 18 years of age and older and by prescription for those 17 or younger. It is to be taken within three days after unprotected sex.

	  

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On July 9, 2009, a more potent version, Plan B One Step, was approved by the FDA with the same restrictions. Next Choice is another FDA-approved levonorgestrel abortifacient. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ByAudience/ ForWomen/FreePublications/UCM282014.pdf (last visited December 10, 2012).
37. “ella” (ulipristal acetate) was approved by the FDA on August 13, 2010. ella is a prescription-only drug product which is taken within five days after a contraceptive failure or unprotected sex. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited December 10, 2012).
38. Copper IUDs (intra-uterine devices) were approved by the FDA in 1984. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited December 10, 2012).
39. Each of the aforementioned abortifacient drugs or devices frequently operates by stopping a fertilized egg from being implanted into the uterus. III. The Affordable Care Act
40. In March 2010, Congress passed and President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
41. The Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
42. The Act does not apply equally to all insurers, employers or individuals.

	  

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43. The Act does not apply its fine and penalty provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
44. The Act is not generally applicable because it provides for numerous exemptions from its rules.
45. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. Given plan changes since March 23, 2010, the Plaintiffs’ health insurance plan does not qualify as a grandfathered health plan. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
46. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
47. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. See Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html (last visited December 10, 2012). According to government estimates, a total of 191 million Americans belong to plans that may be grandfathered under the Act. Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34538, 34540 (June 17, 2010).

	  

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48. In addition to grandfathering under the Act, the preventive care guidelines exempt certain religious employers (as more fully described infra) from any requirement to cover contraceptive services. 45 C.F.R. § 147.130(a)(iv)(B).
49. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
50. None of the several exemptions from the law applies to any of the plaintiffs. 51. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of a “health care sharing ministry” that meets certain criteria). 52. The Department of Health and Human Services has the authority under the Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. Upon information and belief, more than a thousand HHS waivers have been granted. The Act is not neutral because some religious groups have received HHS waivers while other religious groups have not. 53. The Act is not generally applicable because Defendants have granted numerous waivers from complying with the Act’s requirements. 54. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.

	  

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55. Defendants’ waiver practices create a system of individualized assessments to qualify for an exemption.
56. Violations of the Act can subject an employer and an insurer to substantial monetary penalties.
57. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
58. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Act).
59. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
60. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as

	  

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incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act). IV. The Preventive Care Mandate
61. The Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for[,] . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” and directs the Secretary of HHS to determine what would constitute “preventive care” under the mandate. 42 U.S.C. § 300gg—l3(a)(4).
62. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Act. 75 Fed. Reg. 41726 (2010). The interim final rule requires providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
63. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of “health care,” including abortion on demand and abortifacients.
64. HHS directed an independent, non-profit private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventive care for women. See Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited December 10, 2012).

	  

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65. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
66. No religious groups or other groups that oppose government-mandated coverage of abortion and related education and counseling were among the invited presenters.
67. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventive services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
68. FDA-approved “contraceptive” methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited December 10, 2012).
69. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (the Mandate), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved

	  

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contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day the Health Services and Resources Administration (“HRSA”) issued guidelines adopting the IOM recommendations. See Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited December 10, 2012).
70. The Mandate also requires group health care plans and issuers to provide education and counseling, including on the subject of abortifacients, for all women beneficiaries with reproductive capacity.
71. The Mandate went into effect immediately as an “interim final rule.” 72. HHS did not adequately accommodate the concerns of religious organizations or individuals in the comments submitted before the Mandate was issued. The Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 73. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online. Upon information and belief, over 100,000 comments were submitted against the Mandate. 74. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL (National Abortion Rights Action League) Pro-Choice America. She told the assembled crowd that “we are in a war.” 75. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations and individuals like the Plaintiffs. 76. The Mandate requires that the Plaintiffs provide coverage for or otherwise participate in the provision of abortifacients and related education and counseling against Plaintiffs’ religiously informed consciences.

	  

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77. The Mandate constitutes government-imposed pressure and coercion on the Plaintiffs to change or violate their religious beliefs and practices.
78. The Mandate exposes Sharpe Holdings and Charles N. Sharpe to substantial fines, and, in the case of Judi Diane Schaefer and Rita Joanne Wilson, jeopardizes access to affordable health insurance, because of Plaintiffs’ refusal to change or violate their religious beliefs and practices.
79. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of abortifacients and related education and counseling in violation of their religious beliefs, conduct which is equivalent to assisting another to intentionally destroy innocent human life.
80. It is the Plaintiffs’ sincerely held religious belief that human life begins at conception.
81. The Plaintiffs believe that abortifacients such as Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus, and therefore can and do cause the death of the embryo, which is a human life.
82. Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus. Plan B, ella and copper IUDs can and do cause the death of the embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs.
83. The Mandate forces the Plaintiffs to provide, fund or participate in the

	  

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provision of abortifacients such as Plan B, ella and copper IUDs, free of charge, regardless of the ability of employees to obtain these drugs from other sources.
84. The Mandate forces the Plaintiffs to fund or to otherwise participate in the provision of education and counseling concerning abortion that directly conflicts with the Plaintiffs’ religious beliefs and/or teachings.
85. Sharpe Holdings and Charles N. Sharpe cannot terminate their employees from health insurance coverage without violating their religious duty to provide for the health and well-being of their employees, and would be hampered in their ability to hire and retain qualified employees if they were unable to provide health insurance. Additionally, employees such as Judi Diane Schaefer and Rita Joanne Wilson would be unable to attain similar coverage in the market as it exists today.
86. The Mandate forces the Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee health care plans.
87. Providing counseling and education about abortion directly undermines and subverts the explicit messages and speech of the Plaintiffs. Being compelled to provide such counseling and education constitutes compelled speech, in violation of the First Amendment. Being compelled to refer to abortifacients as “preventive care” also constitutes compelled speech in violation of the First Amendment. V. The Narrow and Discretionary Religious Exemption
88. The Mandate indicates that the HRSA “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). The Mandate allows the HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization

	  

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primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
89. Sharpe Holdings, though a religious employer, does not qualify for this exemption because Sharpe Holdings is a for-profit corporation.
90. On January 20, 2012, Defendant Sebelius announced that there would be no change to the narrow religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify that they qualify for the one-year extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Services’ Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/ 01/20120120a.html (last visited December 10, 2012). VI. The Mandate and the Religious Exemption Become Final, Without Change.
91. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different contraceptive services mandate. This promised mandate would, the President stated, attempt to take into account the kinds of

	  

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religious objections voiced against the original Mandate contained in the interim final rule. 92. On that same day—February 10, 2012—the Defendants issued a “guidance
bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013,” provided they meet certain criteria outlined in the guidance bulletin.
93. Sharpe Holdings, though a religious employer with religious objections to certain contraceptive (as that term is used by the FDA) coverage, does not qualify for the Safe Harbor because Sharpe Holdings is a for-profit corporation.
94. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, implementing and/or using their group health insurance plans, their hiring and retention programs, their employment, and/or their social, educational, and other programs and ministries.
95. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have endured and will continue to endure irreparable harm that outweighs any harm to the Defendants.
96. The Plaintiffs are likely to succeed on the merits of their claims. 97. An injunction, as sought by the Plaintiffs, would not adversely affect the public interest.

	  

19

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 20 of 26 PageID #: 20
	  
CAUSES OF ACTION COUNT I
Violation of the Religious Freedom Restoration Act 98. The Plaintiffs incorporate by reference all preceding paragraphs. 99. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortions or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise. 100. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs. 101. The Mandate exposes the Plaintiffs to substantial fines and penalties for their religious exercise or forces them to forfeit their right to employee health insurance. 102. The Mandate exposes Sharpe Holdings and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees. 103. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice. 104. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate. 105. The Mandate is not narrowly tailored to achieve any compelling governmental interest in a way that is least restrictive to Plaintiffs’ rights. 106. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

	  

20

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 21 of 26 PageID #: 21
	  
107. Absent injunctive and declaratory relief against the Defendants, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 108. The Plaintiffs incorporate by reference all preceding paragraphs. 109. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortion or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise. 110. Neither the Affordable Care Act nor the Mandate is neutral. 111. Neither the Affordable Care Act nor the Mandate is generally applicable. 112. Defendants have created categorical exemptions and individualized assessment exemptions to the Mandate. 113. The Mandate furthers no compelling governmental interest. 114. The Mandate is not narrowly tailored to be the least restrictive means of furthering Defendants’ stated interests. 115. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs. 116. The Mandate chills the Plaintiffs’ religious exercise. 117. The Mandate exposes the Plaintiffs to substantial fines for their religious exercise or forces them to forfeit their right to employee health insurance. 118. The Mandate exposes Sharpe Holdings and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees.

	  

21

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 22 of 26 PageID #: 22
	  
119. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice.
120. The Mandate is not narrowly tailored to achieve any compelling governmental interest.
121. Despite being informed in detail of the fact that millions of Americans had beliefs similar to those of the Plaintiffs, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for the Plaintiffs to comply with their religious beliefs.
122. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the Plaintiffs and others.
123. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
124. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Establishment Clause 125. The Plaintiffs incorporate by reference all preceding paragraphs. 126. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions and in a selective burden on the Plaintiffs.

	  

22

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 23 of 26 PageID #: 23
	  
127. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
128. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 129. The Plaintiffs incorporate by reference all preceding paragraphs. 130. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs. 131. The Mandate would compel the Plaintiffs to subsidize and participate in activities that they teach are violations of their religious beliefs. 132. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion. 133. Expenditures are a form of speech protected by the First Amendment. 134. Defendants’ actions thus violate the Plaintiffs’ rights to be free from compelled speech as secured to them by the First Amendment of the United States Constitution. 135. The Mandate’s compelled speech requirement is not narrowly tailored to achieve a compelling governmental interest in a way least restrictive to Plaintiffs’ rights. 136. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.

	  

23

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 24 of 26 PageID #: 24
	  
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association
137. The Plaintiffs incorporate by reference all preceding paragraphs. 138. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs. 139. The Mandate would compel the Plaintiffs to subsidize, fund or participate in the subsidization of activities that they teach are violations of their religious beliefs. 140. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion. 141. Defendants’ actions thus violate the Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution. 142. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the Administrative Procedure Act 143. The Plaintiffs incorporate by reference all preceding paragraphs. 144. The Mandate is contrary to § 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.” The Act also leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” 42 U.S.C. § 18023(b)(1)(A)(ii).

	  

24

Case: 2:12-cv-00092-DDN Doc. #: 1 Filed: 12/20/12 Page: 25 of 26 PageID #: 25
	  
145. The Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on organizations and individuals like the Plaintiffs.
146. The Mandate is contrary to existing law and is in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).
147. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.

PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against
the Plaintiffs violate the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against
the Plaintiffs violate the Fifth Amendment to the United States Constitution; c. Declare that the Mandate and Defendants’ enforcement of the Mandate against
the Plaintiffs violate the Religious Freedom Restoration Act; d. Declare that the Mandate and Defendants’ enforcement of the Mandate against
the Plaintiffs violate the Administrative Procedure Act; e. Issue an order prohibiting Defendants from enforcing the Mandate against
Plaintiffs insofar as it requires them to provide, fund or participate in the provision of abortions or abortifacients, including Plan B, ella and copper IUDs, or related education and counseling; f. Award Plaintiffs the costs of this action and reasonable attorney’s and expert’s fees pursuant to 42 U.S.C. § 1988 or as otherwise provided by law; and

	  

25

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g. Award such other and further relief as it deems just and necessary.
OTTSEN, LEGGAT AND BELZ, L.C.
By: /s/ Timothy Belz______________ Timothy Belz #MO-31808 112 South Hanley, Suite 200 St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@omlblaw.com
Attorney for Plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer and Rita Joanne Wilson

	  

26

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12-CV-92-DDN

MEMORANDUM AND ORDER This action is before the court on the motion of plaintiffs for a temporary restraining order and a preliminary injunction under Federal Rule of Civil Procedure 65. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court heard oral arguments on December 31, 2012.

I. BACKGROUND On December 20, 2012, plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer, and Rita Joanne Wilson commenced this action against defendants United States Department of Health and Human Services, Kathleen Sebelius in her official capacity as Secretary of Health and Human Services, the United States Department of the Treasury, Timothy Geithner in his official capacity as Secretary of the Treasury, the United States Department of Labor, and Hilda Solis in her official capacity as Secretary of Labor. Defendants are the departments and officials responsible for adopting, administering, and enforcing the federal laws and regulations at issue. By their pending motion, plaintiffs seek immediate injunctive relief prohibiting defendants from applying and enforcing against plaintiffs certain portions of the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010) (collectively the “Affordable Care Act” or the “Act”). Defendants oppose the issuance of injunctive relief. At this initial, pre-discovery stage of the case, plaintiffs’ entitlement to immediate injunctive relief depends upon the allegations of their complaint and their pending motion

and the affidavits submitted in support. At the December 31, 2012 hearing, neither party
offered evidence.
The Affordable Care Act, enacted in March 2010, regulates the national health
insurance market by directly regulating group health plans and health insurance issuers.
The Act contains a preventive services coverage provision which states:
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for[,] with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.

42 U.S.C. § 300gg–13(a)(4).

The Health Resources and Services Administration has issued guidelines requiring

coverage for “[a]ll Food and Drug Administration approved contraceptive methods,

sterilization procedures, and patient education and counseling for all women with

reproductive capacity.” Women's Preventive Services: Required Health Plan Coverage

Guidelines,

Health

Resources

and

Services

Administration,

http://www.hrsa.gov/womensguidelines/ (last visited Dec. 31, 2012). The FDA has

approved several contraceptive methods, including Plan B, Ella, and copper intrauterine

devices (IUDs). 1

Birth Control Guide, FDA Office of Women's Health,

www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM2

82014.pdf.

The government issued a regulation (ACA mandate) that adopted the Health

Resources and Service Administration guidelines as final. 77 Fed.Reg. 8725. Group

health plans and health insurance issuers are required to provide coverage consistent with

the guidelines, without cost sharing, in plan or policy years beginning on or after August

1, 2012. Id. at 8725-26.

Employers failing to meet the requirements of the Act and ACA mandate subject

themselves to a number of liabilities. First, failure to provide an employee health

insurance plan is penalized with a fine in the amount equal to one-twelfth of $2000

multiplied by the number of full-time employees on a monthly basis. 26 U.S.C. § 49890H.

Further, failure to meet the group plan health requirements is penalized in the amount of

1 Plaintiffs refer to these particular contraceptive methods as abortifacients. This appellation is supported by the cited Birth Control Guide which indicates for each of the Plan B, Ella, and copper intrauterine devices that, among the ways the respective device may work is to prevent attachment or implantation of the fertilized egg to the uterus wall. Defendants do not deny this assertion.
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$100 per day for each affected employee. 26 U.S.C. § 49890D. Additionally, 29 U.S.C. § 1132 authorizes private enforcement suits for failure to meet the requirements of the Act.
The ACA mandate is subject to several exceptions. First, the Department of Health and Human Services issued a regulation that exempts religious employers from the requirement of providing contraceptive services. 76 Fed.Reg. 46621-01. The regulation defines religious employer as an employer that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious
tenets of the organization. (3) The organization serves primarily persons who share the religious
tenets of the organization. (4) The organization is a non-profit organization as described in the
[Internal Revenue Code].
Id.; 45 C.F.R. § 147.130(a)(1)(iv)(B). Next, individuals are not required to terminate group health plans or health
insurance coverage if they enrolled in such plans or for such coverage by March 23, 2010. 42 U.S.C. § 18011. More specifically, these grandfathered plans are not subject to the requirements of 42 U.S.C. § 300gg–13(a) or the ACA mandate. Id. Additionally, employers with fewer than 50 full-time employees are not subject to penalties and fines for failure to provide minimum essential coverage under an eligible employer-sponsored plan. 26 U.S.C. §§ 4980D, 4980H. Finally, members of a recognized religious sect or division that conscientiously objects to the acceptance of public or private insurance funds and members of health care sharing ministries are exempt from the requirement to obtain minimum essential coverage. 26 U.S.C. §1402(d)(1); 26 U.S.C. § 5000A(d)(2).
Plaintiff Sharpe Holdings, Inc. is a Missouri corporation that employs more than 50 full-time individuals in industries including farming, dairy, creamery, and cheese-making and offers health insurance to employers through a self-insured program. (Doc. 4-2 at ¶¶ 6,11.) Plaintiff Charles N. Sharpe is the founder, owner, chairman of the board, and chief executive officer of Sharpe Holdings and sets all policies governing the business conduct of Sharpe Holdings. (Id. at ¶ 4.) By their unopposed affidavits, plaintiffs Judi Diane Schaefer and Rita Joanne Wilson are employed by Sharpe Holdings and pay a portion of the required premiums and enjoy the benefits of the self-insured program.
In accordance with their sincerely held religious beliefs and practices, the individual plaintiffs oppose the use, funding, provision, or support of abortion on demand and believe that the use of Plan B, Ella, and copper IUDs constitutes abortion on demand. (Doc. 4-2 at ¶¶ 13,14,17; Doc. 4-3 at ¶¶ 4-7; Doc. 4-4 at ¶¶ 4-7.) At the hearing held on December 31, 2012, counsel for plaintiffs stated that they are not contesting the merely
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contraceptive characteristic of the three devices. Rather, the focus of their claims for injunctive relief is the ability of these devices to prevent a fertilized egg from implanting in the wall of the uterus, thereby leading to the ejection of the fertilized egg from the woman’s body, in other words, the abortion of the live fetus. Plaintiffs’ adherence to these tenets is integral to them. (Docs. 4-2, 15-1, 4-3, 4-4.)
In their complaint, plaintiffs allege violations of the Religious Freedom Restoration Act (RFRA), the First Amendment’s Free Exercise and Establishment Clauses, the right against compelled speech, the right of expressive association, and the Administrative Procedure Act. Plaintiffs seek (a) declarations by the court that the ACA mandate and defendants’ enforcement thereof violate the First and Fifth Amendments, RFRA, and the Administrative Procedure Act; (b) an order prohibiting defendants’ enforcement of the ACA mandate with respect to Plan B, ella, copper IUDs, and related education and counseling; and (c) costs and reasonable attorney and expert fees under 42 U.S.C. § 1988.
II. SUBJECT MATTER JURISDICTION Defendants argue that the court is without subject matter jurisdiction because plaintiffs lack standing, an issue the court is constrained to take up at the outset. If a plaintiff lacks standing to sue, federal subject matter jurisdiction under Article III of the Constitution is lacking. ABF Freight System, Inc. v. International Broth. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). The Eighth Circuit stated the constitutional minimum of standing requires the plaintiffs to show an injury-in-fact that is likely traceable to the challenged action of the defendant and that is likely to be redressed by a favorable decision by this court. Id. (quotation marks and internal citation omitted). Defendants originally argued that plaintiffs had only conclusorily alleged that their group health plan is not in a “grandfathered” status and thus exempt from the operation of the ACA mandate. However, after the conclusion of the hearing earlier today, the parties resolved this issue; they do not dispute that plaintiffs’ group health plan is not grandfathered for exemption from the application of the ACA mandate. The court concludes from the record of the penalties to be imposed on them by violation of the ACA mandate that plaintiffs have made a sufficient initial showing of standing to sue under Article III. Defendants argue, that even if plaintiffs show standing under Article III, they cannot show that the ACA Mandate imposes a substantial burden on their religious exercise. For the reasons set forth below, the court disagrees and concludes, for the
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purposes of these initial proceedings in this action, that the record shows that plaintiffs would suffer an imminent injury from the operation of the challenged regulations.
The court concludes that it has subject matter jurisdiction over this action.

III. MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs move for a temporary restraining order and preliminary injunction prohibiting defendants from applying and enforcing against them the statutory and regulatory provisions that require their employee benefit health plan to cover Plan B, Ella, and copper IUDs, and related patient education and counseling. Specifically, plaintiffs take issue with the requirements of 42 U.S.C. § 300gg-13(a)(4), and the liabilities imposed by 26 U.S.C. § 4980D, § 4980H, and 29 U.S.C. § 1132.
Plaintiffs argue that immediate relief is required because they must identify a health plan and complete the enrollment process immediately, because the renewal date of their current employee health benefit plan is January 1, 2013 and because otherwise failure to follow the ACA Mandate will result in significant fines and penalties. They argue that they will likely succeed on their claims that the ACA Mandate violates RFRA, the Free Exercise Clause, the Establishment Clause, and the right against compelled speech.
“Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). “In balancing the equities no single factor is determinative.” Id. These factors are also considered to determine the propriety of a temporary restraining order. See S.B. McLaughlin & Co., Ltd. v. Tudor Oaks Condo. Project, 877 F.2d 707, 708 (8th Cir. 1989).
The relevant inquiry is “whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113. The burden of proof is on the party seeking injunctive relief. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987); United States v. Dorgan, 522 F.2d 969, 973 (8th Cir. 1975).

A. RFRA

IV. DISCUSSION

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Plaintiffs argue that the government violated RFRA, contending that the ACA mandate imposes a substantial burden on the exercise of their religion, that the government cannot demonstrate a compelling governmental interest, and that the mandate is not the least restrictive means to achieve any interest.
Under RFRA, the federal government may not substantially burden the exercise of religion unless it demonstrates that the burden is in furtherance of a compelling governmental interest and that the burden is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C.A. § 2000bb-1.
As a threshold inquiry, plaintiffs must show that a federal policy or action substantially burdens their sincerely held beliefs. United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012). “In the First Amendment context, substantially burdening one's free exercise of religion means that the regulation ‘must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith; or must deny a person reasonable opportunity to engage in those activities that are fundamental to a person's religion.” Id.
From the record before the court, the court concludes that plaintiffs have shown that the enforcement of the ACA mandate, and its substantial financial penalties, on their health plan would substantially burden their religious beliefs. Such would force them to subsidize coverage for drugs and devices used to induce abortion against their religious beliefs and principles, or force them to suffer very substantial economic consequences.
Plaintiffs also argue that that the government cannot demonstrate a compelling governmental interest. The Supreme Court has articulated that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion” and that “[t]he conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); Sherbert v. Verner, 374 U.S. 398, 403 (1963).
The government has proffered the interests of public health and gender equity in support of the ACA mandate, but plaintiffs contend that these interests are insufficient to meet the government’s burden. Particularly, plaintiffs argue that the various exceptions provided by the Act and mandate undermine the government’s claim that such interests are compelling. Plaintiffs point to the fact that the Act does not require employers with fewer than 50 employees to provide employee health insurance and that the ACA mandate does not apply to grandfathered plans. While these factual assertions by the plaintiffs are not gainsaid by defendant, their impact on plaintiffs’ ultimate entitlement to relief requires
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further hearing and consideration. For the purposes of these proceedings, this unresolved issue does not detract from plaintiffs’ entitlement to relief at this stage of the case.
Plaintiffs further argue that the ACA mandate is not the least restrictive means of achieving the interests of public health and gender equity. To support their argument, plaintiff suggest offering incentives to provide contraceptive services through tax benefits, directly reimbursing citizens, directly providing to citizens, and providing incentives for pharmacies, physicians, and health clinics to offer the contraceptives free of charge as less restrictive means. Defendants argue it is not for plaintiffs to devise alternative programs that avoid their involvement with the ACA mandate.
B. First Amendment Plaintiffs argue that the ACA mandate violates the Free Exercise Clause of the First
Amendment, contending that the mandate is not neutral or generally applicable and cannot withstand strict scrutiny. The Free Exercise Clause states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Under the Free Exercise Clause, an individual's freedom of religious belief is absolute, but freedom of conduct is not. See e.g., Bowen v. Roy, 476 U.S. 693, 699 (1986). A neutral law of general applicability that incidentally burdens religious exercise need only satisfy rational basis review, not strict scrutiny. Employment Div. v. Smith, 494 U.S. 872 (1990). However, “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). “Neutrality and general applicability are interrelated” and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Id. at 531-32.
Plaintiffs argue that the Act must withstand strict scrutiny because it is not neutral nor generally applicable. They contend that because the Act provides preferential treatment for some religious institutions by way of exemption, the ACA mandate lacks neutrality. “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” Id. at 533.
Plaintiffs have shown to the court’s satisfaction for the purposes of these initial proceedings, that the ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees. Specifically, plaintiffs argue that the ACA mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious
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purposes. Burdens cannot be selectively imposed only on conduct motivated by religious belief. Id. at 543. “[W]here the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 884 (1990).
While the parties contest whether or not compelling governmental reasons justify the categorical exemptions to the ACA mandate, the court concludes that this issue need not be finally resolved now. Suffice it to say that plaintiffs have shown a reasonable likelihood of success on the merits that has not been overcome at this time. See O’Brien v. U.S. Dept. of Health and Human Services, No. 12-3357, Order (8th Cir. Nov. 28, 2012)(order granting stay pending appeal from district court dismissal); Korte v. Sebelius, No. 12-3841 (7th Cir. Dec. 28, 2012)(order granting injunction pending appeal); American Pulverizer Co. v. United States Dept. of Health and Human Services, No. 12-3459-CV-SRED (W.D. Mo. Dec. 20, 2012)(order granting preliminary injunction); Conestoga Wood Specialties Corp. v. Sebelius No. 12-6744 (E.D. Pa. Dec. 28, 2012) (order granting temporary injunctive relief).
C. Remaining Equitable Factors Plaintiffs argue that remaining factors of the equitable balancing required by
Dataphase also tip in their favor. As stated above, these factors include irreparable harm, harm imposed on other parties by granting the injunctive relief, and public interest.
Plaintiffs argue that they will suffer irreparable harm due to deprivation of First Amendment freedoms and violations of RFRA. They have shown that they must act immediately to implement a new employee health plan due to its January 1, 2013 renewal date in compliance with the law. Injunctive relief will permit plaintiffs to implement a plan consistent with their religious beliefs without the threat of liabilities imposed due to failure to follow the arguably unconstitutional ACA mandate.
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Violations of RFRA also can constitute irreparable harm. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001).
Plaintiffs further argue that any arguments that injunctive relief would harm the government are frivolous. According to plaintiffs, the government has stayed imposition of the ACA mandate upon thousands of employers and millions of employees, and that the government cannot argue convincingly that injunctive relief in this case would cause it any
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harm. Whether or not plaintiffs’ argument in this regard is accurate, it has not been shown to be otherwise at this time. Further proceedings may contest this issue.
The court concludes that the balance of harms presented at this time tips clearly in favor of the plaintiffs. The court is not strongly persuaded by the government’s arguments that plaintiffs’ delay in bringing these proceedings for 16 months should work against their entitlement to short term injunctive relief. No substantial case has been shown for the government being prejudiced by this passage of time.
The court has concluded that plaintiffs are entitled to injunctive relief that maintains the status quo until the important relevant issues have been more fully heard.
D. Bond Plaintiffs argue that no bond should be imposed. “The court may issue a
preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). “The amount of the bond rests within the sound discretion of the trial court.” Stockslager v. Carroll Elec. Co-op. Corp., 528 F.2d 949, 951 (8th Cir. 1976). Since there is no substantial risk of monetary loss to the government by the grant of temporary injunctive relief maintaining the status quo in this case, the court does not order plaintiffs to submit security for the relief. American Pulverizer Co. v. United States Department of Health and Human Services, Inc., No. 12-3459 CV-S-RED at 9.
V. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED that the motion of plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer, and Rita Joanne Wilson for a temporary restraining order is sustained. IT IS FURTHER ORDERED that defendants are TEMPORARILY RESTRAINED from enforcing the ACA Mandate regulations regarding abortifacient devices and related counseling. See 42 U.S.C. § 300gg-13(a)(4), 26 U.S.C. § 4980D, § 4980H, and 29 U.S.C. § 1132.
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IT IS FURTHER ORDERED that the motion of plaintiffs for a preliminary injunction is set for further hearing on January 14, 2013, at 10:00 a.m.

Signed on December 31, 2012.

/S/ David D. Noce______________ UNITED STATES MAGISTRATE JUDGE

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 Case: 2:12-cv-00092-DDN Doc. #: 31 Filed: 01/14/13 Page: 1 of 1 PageID #: 382

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12-CV-92-DDN

ORDER CONTINUING TEMPORARY RESTRAINING ORDER IT IS HEREBY ORDERED that the temporary restraining order currently in place to prohibit defendants from enforcing the ACA Mandate and its regulations regarding abortifacient devices and related counseling, see 42 U.S.C. § 300gg-13(a)(4), 26 U.S.C. § 4980D, § 4980H, and 29 U.S.C. § 1132, shall remain in full force and effect until the court finally determines plaintiffs’ entitlement or not to further injunctive relief.

Signed on January 14, 2013.

/S/ David D. Noce__________ UNITED STATES MAGISTRATE JUDGE

 
 Case: 2:12-cv-00092-DDN Doc. #: 52 Filed: 06/14/13 Page: 1 of 28 PageID #: 549

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., a Missouri )

Corporation,

)

)

OZARK NATIONAL LIFE INSURANCE )

COMPANY, a Missouri Corporation,

)

)

CNS CORPORATION, a Missouri

)

Corporation,

)

)

N.I.S. FINANCIAL SERVICES, INC., a )

Missouri Corporation,

)

)

CHARLES N. SHARPE,

)

a Missouri resident,

)

)

JUDI DIANE SCHAEFER,

)

a Missouri resident, and

)

)

RITA JOANNE WILSON,

)

a Missouri resident,

)

)

Plaintiffs,

)

)

vs.

)

)

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,

)

)

JACOB J. LEW, in his official

)

capacity as the Secretary of the United )

States Department of the Treasury,

)

)

UNITED STATES DEPARTMENT OF )

LABOR, and

)

Case No. 2:12-cv-00092-DDN

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)

SETH D. HARRIS, in his official capacity )

as Acting Secretary of the United States )

Department of Labor,

)

)

Defendants.

)

FIRST AMENDED COMPLAINT

Plaintiffs Sharpe Holdings, Inc., Ozark National Life Insurance Company, CNS

Corporation, N.I.S. Financial Services, Inc., Charles N. Sharpe, Judi Diane Schaefer and Rita

Joanne Wilson, for their First Amended Complaint, state:

NATURE OF THE ACTION

1. This case challenges regulations issued under the Patient Protection and

Affordable Care Act of 2010 (“Act”) that force the Plaintiffs to either (a) violate their sincerely-

held religious opposition to abortion on demand or (b) pay heavy fines and penalties (Sharpe

Holdings, Inc., Ozark National Life Insurance Company, CNS Corporation, N.I.S. Financial

Services, Inc. and Charles N. Sharpe) or lose health insurance coverage (Judi Diane Schaefer and

Rita Joanne Wilson).

2. Sharpe Holdings, Inc. (“Sharpe Holdings”) is a Missouri for-profit general

business corporation that employs more than 50 men and women in a variety of industries,

including, but not limited to, farming, dairy, creamery, and cheese-making. Sharpe Holdings

offers health insurance to its employees through its own self-insured program.

3. Ozark National Life Insurance Company (“Ozark”) is a Missouri for-profit

insurance corporation that employs more than 50 men and women. Ozark offers health

insurance to its employees through a third-party insurance company, Aetna.

4. N.I.S. Financial Services, Inc. (“N.I.S.”) is a Missouri for-profit general business

corporation that employs fewer than 50 men and women. N.I.S. is a mutual fund broker. N.I.S.

	  

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offers health insurance to its employees through a third-party insurance company, Aetna. Sharpe Holding, Ozark, CNS Corporation and N.I.S. will hereafter be collectively referred to as “the Corporate Plaintiffs.”
5. CNS Corporation is a Missouri for-profit general business corporation that employs fewer than 50 men and women. CNS Corporation is the holding company for Sharpe Holdings, Ozark and N.I.S. CNS Corporation offers health insurance to its employees through a third-party insurance company, Aetna.
6. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; and the founder, owner, president and chairman of the board of CNS Corporation. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the businesses of the Corporate Plaintiffs, and he strives to operate the Corporate Plaintiffs’ businesses according to Christian principles and coinciding sincerely held religious beliefs.
7. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees. Health insurance coverage is a benefit of Schaefer’s and Wilson’s employment at Sharpe Holdings. Schaefer and Wilson pay a portion of the premiums required in order to maintain their coverage. Said premiums partially fund medical services provided to other employees covered under the same plan. Schaefer and Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice.
8. The Plaintiffs’ sincerely held religious beliefs forbid them from funding, participating in, paying for, sharing the costs of, training others to engage in, or otherwise supporting or providing a means of abortion on demand.

	  

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9. The Plaintiffs do not believe that abortion on demand constitutes medicine, health care, or a means of providing for the well-being of persons. Rather, Plaintiffs believe abortion on demand involves gravely immoral practices and the intentional destruction of innocent human life.
10. The Defendants have issued an administrative rule (“Mandate” or “Final Rule”) pursuant to authority created by the Act requiring that group health plans cover, without cost sharing, “all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning as early as August 1, 2012. Such contraceptive methods include certain drugs and devices such as the “Plan B” and “ella” pills and copper IUDs, all of which are widely known as abortifacients in that they frequently function to destroy fertilized eggs, which Plaintiffs consider to be abortion on demand. This not only forces the Plaintiffs to treat abortion on demand and related education and counseling as health care, but also subverts the expression of the Plaintiffs’ religious beliefs (which they share with millions of other Americans), by forcing them to fund, promote, and assist and participate in the provision of the acquisition of drugs and services which they believe involve gravely immoral practices, including the intentional destruction of innocent human life.
11. The Mandate unconstitutionally forces the Plaintiffs to violate their sincerely held religious beliefs—under threat of heavy fines and penalties for the Corporate Plaintiffs and Charles N. Sharpe, and under threat of lost health coverage or employment at Sharpe Holdings for Judi Diane Schaefer and Rita Joanne Wilson. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious teachings. Having to pay a fine to government authorities for the privilege of practicing one’s

	  

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religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. Forcing an employee to fund government-dictated speech that is directly at odds with her own speech and religious teachings, in order to maintain insurance as a job benefit, is similarly wrong.
12. The Defendants’ refusal to accommodate conscience is selective. A patchwork of exemptions shows that Defendants do not believe every insurance plan in the country needs to cover these services. For instance, Defendants have issued thousands of waivers from the Act (in its entirety) for many large corporations and labor unions, purely for reasons of commercial or political convenience. Other exemptions have been awarded based on how old a plan is, or how large an employer is. There are several other exemptions from the Act and from the Mandate, for a variety of groups and for a variety of reasons, including exemptions for certain narrowly defined religious employers that have found favor with the Defendants. There is, however, no exemption for for-profit religious employers and the employees they insure, like the Plaintiffs.
13. Defendants acted with full knowledge of the beliefs of thousands of employers and the employees they insure, like the Plaintiffs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than callous disregard of the religious beliefs of the Plaintiffs and many other Americans. The Defendants accordingly seek refuge in this Court.
JURISDICTION AND VENUE 14. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,	  1343(a)(4), 1346(a)(2), and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under

	  

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28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1. 15. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). THE PARTIES 16. Plaintiff Sharpe Holdings is a for-profit Missouri corporation residing in Shelby
County, Missouri. 17. Plaintiff Ozark is a for-profit Missouri corporation residing in Jackson County,
Missouri. 18. Plaintiff CNS Corporation is a for-profit Missouri corporation residing in
Jackson County, Missouri. 19. Plaintiff N.I.S. is a for-profit Missouri corporation residing in Jackson County,
Missouri. 20. Charles N. Sharpe is the founder, owner, chairman of the board and chief
executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; and the founder, owner, president and chairman of the board of CNS Corporation. He is a resident of Shelby County, Missouri.
21. Plaintiff Judi Diane Schaefer is an individual residing in Shelby County, Missouri.
22. Plaintiff Rita Joanne Wilson is an individual residing in Shelby County, Missouri.
23. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate.
24. Defendant Kathleen Sebelius is the Secretary of the United States Department

	  

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of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
25. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
26. Defendant Seth D. Harris is the Acting Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Harris is sued in his official capacity only.
27. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
28. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
29. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Plaintiffs’ Religious Beliefs and Practices Related to Abortion
30. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; and the founder, owner, president and chairman of the board of CNS Corporation. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the businesses of the Corporate Plaintiffs,

	  

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and he strives to operate the Corporate Plaintiffs’ businesses according to Christian principles
and coinciding sincerely held religious beliefs. He is also a minister of the gospel.
31. Sharpe Holdings is a Missouri, for-profit corporation that employs individuals in
a variety of industries, including but not limited to, farming, dairy, creamery and cheese-
making. Sharpe Holdings promotes the Christian beliefs, practices, and aspirations espoused
by its founder and owner, Charles N. Sharpe. Outward examples include its milk tankers,
which are emblazoned with the message “Jesus is the Answer,” and its milk and cheese
products, marketed under the name of Heartland Creamery, which substitute the “T” in
Heartland with a Christian cross.
32. The Sharpe Holdings website describes the corporation’s various enterprises and
contains several demonstrations of its faith-based mission, including, for instance, the front
page of the website which is subtitled “Transforming Hearts and Lives through the Power of
Jesus Christ.” See http://www.sharpeholdingsinc.com/.
33. Sharpe Land & Cattle is a division within Sharpe Holdings. The Sharpe
Holdings website says the following of Sharpe Land & Cattle:
The goal of Sharpe Land & Cattle goes far beyond the further growth of an already thriving agricultural enterprise. The heart behind the organization aspires to help people rebuild their lives through the changing power of Jesus Christ. By modeling their work ethic before the men at the Recovery Center, and by providing vocational opportunities for those in their community, the staff of Sharpe Land & Cattle strives to implement Godly principles in every aspect of their business. By remaining true to this calling, Sharpe Land & Cattle has experienced a sovereign move of God—and they plan to continue operating under God’s blessing.
http://www.sharpeholdingsinc.com/slc.html.
34. Ozark is a Missouri, for-profit life insurance company.
35. N.I.S. is a Missouri, for-profit securities broker/dealer.
36. Ozark and N.I.S. work in conjunction in providing an insurance/investment

	  

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product called The Balanced Program which combines mutual fund investment and life insurance.
37. Ozark and N.I.S. share a website, which states that “Ozark National Life is proud to be associated with” and supports Heartland Ministries. http://www.ozarknational.com/connect.aspx. There is a link to the Heartland Ministries website, whose homepage states, among other things, “Jesus is the answer!” http://heartland-ministries.org. Charles N. Sharpe is the founder and head pastor for Heartland Ministries.
38. CNS Corporation is a Missouri, for-profit corporation that serves as a holding company for Sharpe Holdings, Ozark and N.I.S.
39. Christian belief and practice are integral to the identities of the Corporate Plaintiffs, and adherence to Christian tenets is a deeply and sincerely integral aspect of the Corporate Plaintiffs.
40. The Corporate Plaintiffs seek to defend and promote certain moral and ethical standards in their employees, including not just teaching them a life-sustaining work ethic but also promoting a belief in the sanctity and quality of life which precludes abortion on demand through abortifacient drugs and devices or otherwise.
41. As part of their missions, the Corporate Plaintiffs promote the well-being and health of their employees. In furtherance of these commitments, the Corporate Plaintiffs ensure that their employees have comprehensive medical coverage. Sharpe Holdings has a self-insured plan, while Ozark, CNS Corporation and N.I.S. have plans with a third-party provider, Aetna. The plans purposely exclude coverage for abortions or abortifacient drugs or devices.
42. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees. Health insurance coverage is a benefit of their employment at Sharpe Holdings. They pay a

	  

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portion of the premiums required in order to maintain this coverage. Said premiums partially fund medical services provided to other employees covered under the same plan.
43. Mr. Sharpe, Ms. Schaefer and Ms. Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice.
44. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of health care coverage for abortions or abortifacient drugs and devices, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
45. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of information or guidance to others under the same insurance plan about locations at which they can access abortifacients, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
46. The Sharpe Holdings health insurance plan year began on January 1, 2013. The Ozark, CNS Corporation and N.I.S. plans begin on July 1, 2013. II. Abortifacient Drugs and Devices
47. “Plan B” (levonorgestrel) was approved by the Food and Drug Administration (“FDA”) as a prescription-only drug product on July 28, 1999 and was approved by the FDA for over-the-counter sales on August 24, 2006 for women 18 years of age and older and by prescription for those 17 or younger. It is to be taken within three days after unprotected sex. On July 9, 2009, a more potent version, Plan B One Step, was approved by the FDA with the same restrictions. Next Choice is another FDA-approved levonorgestrel abortifacient. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ByAudience/ ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).

	  

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48. “ella” (ulipristal acetate) was approved by the FDA on August 13, 2010. ella is a prescription-only drug product which is taken within five days after a contraceptive failure or unprotected sex. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
49. Copper IUDs (intra-uterine devices) were approved by the FDA in 1984. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
50. Each of the aforementioned abortifacient drugs or devices frequently operates by stopping a fertilized egg from being implanted into the uterus. III. The Affordable Care Act
51. In March 2010, Congress passed and President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
52. The Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
53. The Act does not apply equally to all insurers, employers or individuals. 54. The Act does not apply its fine and penalty provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 55. The Act is not generally applicable because it provides for numerous exemptions from its rules.

	  

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56. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. Given plan changes since March 23, 2010, the Plaintiffs’ health insurance plan does not qualify as a grandfathered health plan. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
57. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
58. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. See Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html (last visited May 27, 2013). According to government estimates, a total of 191 million Americans belong to plans that may be grandfathered under the Act. Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34538, 34540 (June 17, 2010).
59. In addition to grandfathering under the Act, the preventive care guidelines exempt certain religious employers (as more fully described infra) from any requirement to cover contraceptive services. 45 C.F.R. § 147.130(a)(iv)(B).
60. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
61. None of the several exemptions from the law applies to any of the Plaintiffs.

	  

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62. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of a “health care sharing ministry” that meets certain criteria).
63. The Department of Health and Human Services has the authority under the Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. Upon information and belief, more than a thousand HHS waivers have been granted. The Act is not neutral because some religious groups have received HHS waivers while other religious groups have not.
64. The Act is not generally applicable because Defendants have granted numerous waivers from complying with the Act’s requirements.
65. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.
66. Defendants’ waiver practices create a system of individualized assessments to qualify for an exemption.
67. Violations of the Act can subject an employer and an insurer to substantial monetary penalties.
68. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under

	  

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an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
69. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Act).
70. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
71. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act). IV. The Preventive Care Mandate
72. The Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for[,] . . . with respect to women, such additional

	  

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preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” and directs the Secretary of HHS to determine what would constitute “preventive care” under the mandate. 42 U.S.C. § 300gg—l3(a)(4).
73. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Act. 75 Fed. Reg. 41726 (2010). The interim final rule requires providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
74. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of “health care,” including abortion on demand and abortifacients.
75. HHS directed an independent, non-profit private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventive care for women. See Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited May 27, 2013).
76. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
77. No religious groups or other groups that oppose government-mandated coverage of abortion and related education and counseling were among the invited presenters.

	  

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78. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventive services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
79. FDA-approved “contraceptive” methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
80. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (the Mandate), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day the Health Services and Resources Administration (“HRSA”) issued guidelines adopting the IOM recommendations. See Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited May 27, 2013).
81. The Mandate also requires group health care plans and issuers to provide education and counseling, including on the subject of abortifacients, for all women

	  

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beneficiaries with reproductive capacity. 82. The Mandate went into effect immediately as an “interim final rule.” 83. HHS did not adequately accommodate the concerns of religious organizations
or individuals in the comments submitted before the Mandate was issued. The Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations.
84. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online. Upon information and belief, over 100,000 comments were submitted against the Mandate.
85. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL (National Abortion Rights Action League) Pro-Choice America. She told the assembled crowd that “we are in a war.”
86. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations and individuals like the Plaintiffs.
87. The Mandate requires that the Plaintiffs provide coverage for or otherwise participate in the provision of abortifacients and related education and counseling against Plaintiffs’ religiously informed consciences.
88. The Mandate constitutes government-imposed pressure and coercion on the Plaintiffs to change or violate their religious beliefs and practices.
89. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to substantial fines, and, in the case of Judi Diane Schaefer and Rita Joanne Wilson, jeopardizes access to affordable health insurance, because of Plaintiffs’ refusal to change or violate their religious beliefs and practices.
90. The Mandate forces the Plaintiffs to provide, fund or participate in the

	  

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provision of abortifacients and related education and counseling in violation of their religious beliefs, conduct which is equivalent to assisting another to intentionally destroy innocent human life.
91. It is the Plaintiffs’ sincerely held religious belief that human life begins at conception.
92. The Plaintiffs believe that abortifacients such as Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus, and therefore can and do cause the death of the embryo, which is a human life.
93. Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus. Plan B, ella and copper IUDs can and do cause the death of the embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs.
94. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of abortifacients such as Plan B, ella and copper IUDs, free of charge, regardless of the ability of employees to obtain these drugs from other sources.
95. The Mandate forces the Plaintiffs to fund or to otherwise participate in the provision of education and counseling concerning abortion that directly conflicts with the Plaintiffs’ religious beliefs and/or teachings.
96. The Corporate Plaintiffs and Charles N. Sharpe cannot terminate their employees from health insurance coverage without violating their religious duty to provide for

	  

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the health and well-being of their employees, and would be hampered in their ability to hire and retain qualified employees if they were unable to provide health insurance. Additionally, employees such as Judi Diane Schaefer and Rita Joanne Wilson would be unable to attain similar coverage in the market as it exists today.
97. The Mandate forces the Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee health care plans.
98. Providing counseling and education about abortion directly undermines and subverts the explicit messages and speech of the Plaintiffs. Being compelled to provide such counseling and education constitutes compelled speech, in violation of the First Amendment. Being compelled to refer to abortifacients as “preventive care” also constitutes compelled speech in violation of the First Amendment. V. The Narrow and Discretionary Religious Exemption
99. The Mandate indicates that the HRSA “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). The Mandate allows the HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
100. The Corporate Plaintiffs, though religious employers, do not qualify for this exemption because they are for-profit corporations.

	  

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101. On January 20, 2012, Defendant Sebelius announced that there would be no change to the narrow religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify that they qualify for the one-year extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Services’ Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/ 01/20120120a.html (last visited May 27, 2013). VI. The Mandate and the Religious Exemption Become Final, Without Change.
102. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different contraceptive services mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
103. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to

	  

20

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enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013,” provided they meet certain criteria outlined in the guidance bulletin.
104. The Corporate Plaintiffs, though religious employers with religious objections to certain contraceptive (as that term is used by the FDA) coverage, do not qualify for the Safe Harbor because they are for-profit corporations.
105. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, implementing and/or using their group health insurance plans, their hiring and retention programs, their employment, and/or their social, educational, and other programs and ministries.
106. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have endured and will continue to endure irreparable harm that outweighs any harm to the Defendants.
107. The Plaintiffs are likely to succeed on the merits of their claims. 108. An injunction, as sought by the Plaintiffs, would not adversely affect the public interest.
CAUSES OF ACTION COUNT I
Violation of the Religious Freedom Restoration Act 109. The Plaintiffs incorporate by reference all preceding paragraphs. 110. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortions or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise.

	  

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111. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs.
112. The Mandate exposes the Plaintiffs to substantial fines and penalties for their religious exercise or forces them to forfeit their right to employee health insurance.
113. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees.
114. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice.
115. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate.
116. The Mandate is not narrowly tailored to achieve any compelling governmental interest in a way that is least restrictive to Plaintiffs’ rights.
117. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
118. Absent injunctive and declaratory relief against the Defendants, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 119. The Plaintiffs incorporate by reference all preceding paragraphs.

	  

22

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120. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortion or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise.
121. Neither the Affordable Care Act nor the Mandate is neutral. 122. Neither the Affordable Care Act nor the Mandate is generally applicable. 123. Defendants have created categorical exemptions and individualized assessment exemptions to the Mandate. 124. The Mandate furthers no compelling governmental interest. 125. The Mandate is not narrowly tailored to be the least restrictive means of furthering Defendants’ stated interests. 126. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs. 127. The Mandate chills the Plaintiffs’ religious exercise. 128. The Mandate exposes the Plaintiffs to substantial fines for their religious exercise or forces them to forfeit their right to employee health insurance. 129. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees. 130. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice. 131. The Mandate is not narrowly tailored to achieve any compelling governmental interest.

	  

23

Case: 2:12-cv-00092-DDN Doc. #: 52 Filed: 06/14/13 Page: 24 of 28 PageID #: 572
	  
132. Despite being informed in detail of the fact that millions of Americans had beliefs similar to those of the Plaintiffs, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for the Plaintiffs to comply with their religious beliefs.
133. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the Plaintiffs and others.
134. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
135. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Establishment Clause 136. The Plaintiffs incorporate by reference all preceding paragraphs. 137. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions and in a selective burden on the Plaintiffs. 138. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. 139. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.

	  

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Case: 2:12-cv-00092-DDN Doc. #: 52 Filed: 06/14/13 Page: 25 of 28 PageID #: 573
	  
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 140. The Plaintiffs incorporate by reference all preceding paragraphs. 141. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs. 142. The Mandate would compel the Plaintiffs to subsidize and participate in activities that they teach are violations of their religious beliefs. 143. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion. 144. Expenditures are a form of speech protected by the First Amendment. 145. Defendants’ actions thus violate the Plaintiffs’ rights to be free from compelled speech as secured to them by the First Amendment of the United States Constitution. 146. The Mandate’s compelled speech requirement is not narrowly tailored to achieve a compelling governmental interest in a way least restrictive to Plaintiffs’ rights. 147. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association
148. The Plaintiffs incorporate by reference all preceding paragraphs. 149. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs.

	  

25

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150. The Mandate would compel the Plaintiffs to subsidize, fund or participate in the subsidization of activities that they teach are violations of their religious beliefs.
151. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion.
152. Defendants’ actions thus violate the Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution.
153. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the Administrative Procedure Act 154. The Plaintiffs incorporate by reference all preceding paragraphs. 155. The Mandate is contrary to § 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.” The Act also leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” 42 U.S.C. § 18023(b)(1)(A)(ii). 156. The Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on organizations and individuals like the Plaintiffs. 157. The Mandate is contrary to existing law and is in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). 158. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.

	  

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PRAYER FOR RELIEF Wherefore, these Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Fifth Amendment to the United States Constitution; c. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Religious Freedom Restoration Act; d. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Administrative Procedure Act; e. Issue an order prohibiting Defendants from enforcing the Mandate against these
Plaintiffs insofar as it requires them to provide, fund or participate in the provision of abortions or abortifacients, including Plan B, ella and copper IUDs, or related education and counseling; f. Award these Plaintiffs the costs of this action and reasonable attorney’s and expert’s fees pursuant to 42 U.S.C. § 1988 or as otherwise provided by law; and g. Award such other and further relief as it deems just and necessary.

	  

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Case: 2:12-cv-00092-DDN Doc. #: 52 Filed: 06/14/13 Page: 28 of 28 PageID #: 576

OTTSEN, LEGGAT AND BELZ, L.C.

By: /s/ Timothy Belz______________ Timothy Belz #MO-31808 112 South Hanley, Suite 200 St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@omlblaw.com

Attorney for Plaintiffs

Certificate of Service

I hereby certify that on June 13, 2013, the foregoing was filed electronically with the Clerk of the Court for the United States District Court for the Eastern District of Missouri to be served by operation of the Court’s electronic filing system upon the following registered CM/ECF participants:

Jacek Pruski U.S. DEPARTMENT OF JUSTICE - CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530

Christina Bahr Moore OFFICE OF U.S. ATTORNEY 111 S. Tenth Street 20th Floor St. Louis, MO 63102

/s/ Timothy Belz

28

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC.,

)

CHARLES N. SHARPE,

)

JUDI DIANE SCHAEFER,

)

RITA JOANNE WILSON,

)

OZARK NATIONAL LIFE INSURANCE

)

COMPANY,

)

N.I.S. FINANCIAL SERVICES, INC., and

)

CNS CORPORATION,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12-CV-92-DDN

MEMORANDUM AND ORDER This action is before the court on the motion of newly added plaintiffs Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., and CNS Corporation (Doc. 51) for a preliminary injunction under Federal Rule of Civil Procedure 65. Also pending is the motion of the defendants (Doc. 42) for a second extension of time to file a response to plaintiffs’ complaint. Because plaintiffs have filed an amended complaint adding the movant plaintiffs, the court will consider defendants’ motion as applying to the amended complaint as well. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The newly added plaintiffs seek preliminary injunctive relief because there is a threat of immediate harm to them if they do not receive the injunctive relief. They allege that “the renewal date of their employee health benefit plan is July 1, 2013, and these plaintiffs must complete the process of identifying an appropriate health plan and completing the enrollment process for their employees immediately.” (Doc. 51 at 2.) Defendants do not object to the entry of this injunctive relief, which maintains the status quo, based upon plaintiffs’ claims under the federal Religious Freedom Restoration Act. Defendants do not request a bond. (Id.)

Therefore, in order to maintain the status quo, until further order of the court, and without objection by the defendants,
IT IS HEREBY ORDERED that defendants, their agents, officers and employees are prohibited from applying and enforcing against these plaintiffs, their employee health plan(s), or their insurer(s) the statute and regulations that require plaintiffs to provide 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,” as prescribed by a health care provider, 77 Fed. Reg. 8725, as well as any penalties, fines, assessments, or enforcement actions for noncompliance, including those found in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. § 1132, to the extent these regulations require coverage of services that plaintiffs believe to be abortifacients.
IT IS FURTHER ORDERED that the motion of defendants for a second extension of time to file a response to plaintiffs’ original and amended complaints (Doc. 42) is sustained. Defendants may have until 28 days, from the date the court issues its ruling on the pending motion of defendants to stay these proceedings, to file a response to the plaintiffs’ complaints.
IT IS FURTHER ORDERED that the motion of plaintiffs for a ruling (Doc. 55) is denied as moot.

Signed on June 28, 2013.

/S/ David D. Noce______________ UNITED STATES MAGISTRATE JUDGE

2

 
 Case: 2:12-cv-00092-DDN Doc. #: 57 Filed: 09/30/13 Page: 1 of 3 PageID #: 585

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC.,

)

RITA JOANNE WILSON,

)

JUDI DIANE SCHAEFER,

)

OZARK NATIONAL LIFE INSURANCE

)

COMPANY,

)

CNS CORPORATION, and

)

N.I.S. FINANCIAL SERVICES, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

KATHLEEN SEBELIUS, Secretary of

)

the United States Department of

)

Health and Human Services,

)

UNITED STATES DEPARTMENT OF

)

THE TREASURY,

)

JACOB J. LEW, Secretary of the

)

United States Department of the

)

Treasury,

)

UNITED STATES DEPARTMENT OF

)

LABOR, and

)

SETH D. HARRIS, Acting Secretary of

)

the United States Department of Labor,

)

)

Defendants.

)

No. 2:12 CV 92 DDN

ORDER STAYING PROCEEDINGS AND ADMINISTRATIVELY TERMINATING DOC. 2 This action is before the court on the motion of the defendants to stay these proceedings. (Doc. 41). 1 Original plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer, and Rita Joanne Wilson commenced this action for injunctive relief prohibiting defendants from applying and enforcing against plaintiffs certain portions of the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010). Following the filing of

1 The court notes that plaintiffs' original motion for preliminary injunctive relief remains shown on the minutes of this action as pending. It is herein dealt with administratively.

Case: 2:12-cv-00092-DDN Doc. #: 57 Filed: 09/30/13 Page: 2 of 3 PageID #: 586
new pleadings on behalf of added plaintiffs Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., and CNS Corporation, the court on June 28, 2013, entered the following order:
IT IS HEREBY ORDERED that defendants, their agents, officers and employees are prohibited from applying and enforcing against these plaintiffs, their employee health plan(s), or their insurer(s) the statute and regulations that require plaintiffs to provide 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," as prescribed by a health care provider, 77 Fed. Reg. 8725, as well as any penalties, fines, assessments, or enforcement actions for noncompliance, including those found in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. § 1132, to the extent these regulations require coverage of services that plaintiffs believe to be abortifacients.
(Doc. 56 at 2.) Thereafter, the minute entries of this case continue to show that the original motion for a preliminary injunction (Doc. 2) remains pending. This is incorrect. The entry of the order quoted above effectively disposed of Doc. 2. Therefore, the court directs the clerk to administratively terminate the pendency of Doc. 2.
Still pending, however, is the motion of the defendants to stay this action. Since the commencement of this action, two assertedly similar cases have been appealed to the United States Court of Appeals for the Eighth Circuit and that court has issued injunctive relief maintaining the status quo pending appeal in both cases. O'Brien v. HHS, No. 123357 (8th Cir. Nov. 28, 2012); Annex Medical, Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025 (8th Cir. Feb. 1, 2013).
In their motion to stay, defendants state "they do not oppose plaintiffs' motion for preliminary injunction, ECF No. 2, on its Religious Freedom Restoration Act (RFRA) claim, until such time as the appeal in O'Brien or Annex Medical is resolved, whichever occurs first. In light of the pending appeals and defendants' non-opposition to a preliminary injunction until the appeal in O'Brien or Annex Medical is resolved, defendants move to stay all proceedings in this case until such time." (Doc. 41 at 1.)
Plaintiffs object to the stay, because defendants have not shown entitlement to it, because there are no extraordinary circumstances that support a stay here, defendants have not shown they would be prejudiced by the failure to stay the action, there are significant differences between this case and the two cases now before the Court of Appeals, and plaintiffs anticipate seeking summary judgment on their RFRA claim during the pendency of these appeals without the need for extensive discovery. (Doc. 44.)
Defendants argue in reply that they anticipate that the disposition of the two cases now on appeal will support a motion to dismiss this case, the appellate disposition(s) will
2

Case: 2:12-cv-00092-DDN Doc. #: 57 Filed: 09/30/13 Page: 3 of 3 PageID #: 587
otherwise significantly affect the outcome of this case, and the plaintiffs will not be substantially prejudiced by a stay since they will have the benefit of the preliminary injunction. (Doc. 45.)
The court has considered the parties arguments and concludes that the circumstances warrant a stay of this case pending the disposition of the issues appealed to the Court of Appeals. Neither side in this litigation will be substantially prejudiced by a stay, and the Court of Appeals' ruling on the issues before it, and any appeal to the Supreme Court from the Court of Appeals' ruling(s) will very likely provide guidance to this court in further proceedings in this case.
Thereupon, IT IS HEREBY ORDERED that the Clerk of the Court administratively terminate Doc. 2, the original motion of plaintiffs for a preliminary injunction. IT IS FURTHER ORDERED that the injunction issued by the court on June 28, 2013 (Doc. 56) quoted above shall remain in effect for all parties until further order of this court on that matter. IT IS FURTHER ORDERED that the motion of the defendants for a stay of these proceedings (Doc. 41) is sustained. All proceedings in this action are STAYED pending the final resolution of the appeal in O'Brien v. HHS, No. 12-3357, or in Annex Medical, Inc. v. Sebelius, No. 13-1118, whichever occurs first, including the time any proper application(s) for relief is before the Supreme Court. Thereafter, this court will set a status and scheduling proceeding regarding this action.

Signed on September 30, 2013.

/S/ David D. Noce______________ UNITED STATES MAGISTRATE JUDGE

3

 
 Case: 2:12-cv-00092-DDN Doc. #: 61 Filed: 12/04/13 Page: 1 of 36 PageID #: 636

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., a Missouri )

Corporation,

)

)

OZARK NATIONAL LIFE INSURANCE )

COMPANY, a Missouri Corporation,

)

)

CNS CORPORATION, a Missouri

)

Corporation,

)

)

N.I.S. FINANCIAL SERVICES, INC., a )

Missouri Corporation,

)

)

CNS INTERNATIONAL MINISTRIES, )

INC., a Missouri Non-Profit Corporation, )

)

HEARTLAND CHRISTIAN COLLEGE, )

A Missouri Non-Profit Corporation,

)

)

CHARLES N. SHARPE,

)

a Missouri resident,

)

)

JUDI DIANE SCHAEFER,

)

a Missouri resident, and

)

)

RITA JOANNE WILSON,

)

a Missouri resident,

)

)

Plaintiffs,

)

)

vs.

)

)

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,

)

Case No. 2:12-cv-00092-DDN

Exhibit 1

Case: 2:12-cv-00092-DDN Doc. #: 61 Filed: 12/04/13 Page: 2 of 36 PageID #: 637
!

JACOB J. LEW, in his official

)

capacity as the Secretary of the United )

States Department of the Treasury,

)

)

UNITED STATES DEPARTMENT OF )

LABOR, and

)

)

THOMAS E. PEREZ, in his official

)

Capacity as the Secretary of the United )

States Department of Labor,

)

)

Defendants.

)

SECOND AMENDED COMPLAINT

Plaintiffs Sharpe Holdings, Inc., Ozark National Life Insurance Company, CNS

Corporation, N.I.S. Financial Services, Inc., CNS International Ministries, Inc., Heartland

Christian College, Charles N. Sharpe, Judi Diane Schaefer and Rita Joanne Wilson, for their

Second Amended Complaint, state:

NATURE OF THE ACTION

1. This case challenges regulations issued under the Patient Protection and

Affordable Care Act of 2010 (“Act”) that force the Plaintiffs to either (a) violate their sincerely-

held religious opposition to abortion on demand or (b) pay heavy fines and penalties (Sharpe

Holdings, Inc., Ozark National Life Insurance Company, CNS Corporation, N.I.S. Financial

Services, Inc., CNS International Ministries, Inc., Heartland Christian College, and Charles N.

Sharpe) or lose health insurance coverage and pay fines (Judi Diane Schaefer and Rita Joanne

Wilson).

2. Sharpe Holdings, Inc. (“Sharpe Holdings”) is a Missouri for-profit general

business corporation that employs more than 50 men and women in a variety of industries,

including, but not limited to, farming, dairy, creamery, and cheese-making. Sharpe Holdings

offers health insurance to its employees through its own self-insured program. This is the same

!

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!
self-insured program used by all the Plaintiffs in this case, and will be referred to herein simply as “the self-insured program.”
3. Ozark National Life Insurance Company (“Ozark”) is a Missouri for-profit insurance corporation that employs more than 50 men and women. Ozark offers health insurance to its employees through the self-insured program.
4. N.I.S. Financial Services, Inc. (“N.I.S.”) is a Missouri for-profit general business corporation that employs fewer than 50 men and women. N.I.S. is a mutual fund broker. N.I.S. offers health insurance to its employees through the self-insured program.
5. CNS Corporation is a Missouri for-profit general business corporation that employs fewer than 50 men and women. CNS Corporation is the holding company for Sharpe Holdings, Ozark and N.I.S. CNS Corporation offers health insurance to its employees through the self-insured program.
6. CNS International Ministries, Inc. (“CNS Ministries”) is a Missouri non-profit corporation that provides full-time residential services to men, women and children who suffer from alcohol or drug dependencies and behavioral problems. CNS Ministries, located in the Missouri counties of Lewis, Knox and Shelby, employs more than 50 men and women. Charles N. Sharpe is its founder, chairman and president. CNS Ministries offers health insurance to its employees through the self-insured program.
7. Heartland Christian College is a Missouri non-profit corporation that provides post-secondary higher education to employees and residents of CNS International Ministries and their dependents, in addition to others. It is part of the same community in which CNS Ministries and Sharpe Holdings participate. Heartland Christian College offers health insurance

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Case: 2:12-cv-00092-DDN Doc. #: 61 Filed: 12/04/13 Page: 4 of 36 PageID #: 639
!
to its employees through the self-insured program. Charles N. Sharpe is the founder of Heartland Christian College.
8. Sharpe Holdings, Ozark, CNS Corporation, N.I.S., CNS Ministries and Heartland Christian College will hereafter be collectively referred to as “the Corporate Plaintiffs.”
9. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; the founder, owner, president and chairman of the board of CNS Corporation; the president, founder, chairman of the board and chief executive officer of CNS Ministries; and the founder of Heartland Christian College. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the businesses of the Corporate Plaintiffs (except for Heartland Christian College, which has an independent board, but nevertheless fully concurs with the views of its founder, Mr. Sharpe, regarding the matters at issue in this suit). Mr. Sharpe strives to operate the Corporate Plaintiffs (other than Heartland Christian College, which he does not control but which concurs herein) according to Christian principles and coinciding sincerely held religious beliefs.
10. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees. Health insurance coverage is a benefit of Schaefer’s and Wilson’s employment at Sharpe Holdings. Schaefer and Wilson pay a portion of the premiums required in order to maintain their coverage. Said premiums partially fund medical services provided to other employees covered under the same plan. Schaefer and Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice.

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11. The Plaintiffs’ sincerely held religious beliefs forbid them from funding, participating in, paying for, sharing the costs of, training others to engage in, or otherwise supporting or providing a means of abortion on demand.
12. The Plaintiffs do not believe that abortion on demand constitutes medicine, health care, or a means of providing for the well-being of persons. Rather, Plaintiffs believe abortion on demand involves gravely immoral practices and the intentional destruction of innocent human life.
13. The Defendants have issued an administrative rule ostensibly pursuant to authority created by the Act requiring that group health plans cover, without cost sharing, “all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning as early as August 1, 2012. Such contraceptive methods include certain drugs and devices such as the “Plan B” and “ella” pills and copper IUDs, all of which are widely known as abortifacients in that they frequently function to destroy fertilized eggs, which Plaintiffs consider to be abortion on demand. This mandate to provide coverage for abortifacient drugs (hereinafter, the “Mandate”) not only forces the Plaintiffs to treat abortion on demand and related education and counseling as health care, but also subverts the expression of the Plaintiffs’ religious beliefs (which they share with millions of other Americans), by forcing them to fund, promote, and assist and participate in the provision of the acquisition of drugs and services which they believe involve gravely immoral practices, including the intentional destruction of innocent human life.
14. The Mandate unconstitutionally forces the Plaintiffs to violate their sincerely held religious beliefs—under threat of heavy fines and penalties for the Corporate Plaintiffs and Charles N. Sharpe, and under threat of lost health coverage and fines for Judi Diane Schaefer and

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Rita Joanne Wilson at Sharpe Holdings. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious teachings. Having to pay a fine to government authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. Forcing an employee to fund government-dictated speech that is directly at odds with her own speech and religious teachings, in order to maintain insurance as a job benefit, is similarly wrong.
15. The Defendants’ refusal to accommodate conscience is selective. A patchwork of exemptions shows that Defendants do not believe every insurance plan in the country needs to cover these services. For instance, Defendants have issued thousands of waivers from the Act (in its entirety) for many large corporations and labor unions, purely for reasons of commercial or political convenience. Other exemptions have been awarded based on how old a plan is, or how large an employer is. There are several other exemptions from the Act and from the Mandate, for a variety of groups and for a variety of reasons, including exemptions for certain narrowly defined religious employers that have found favor with the Defendants. There is, however, no exemption for for-profit religious employers, the employees they insure, or nonprofit religious employers that are not churches. Plaintiffs fall into these categories.
16. The government has instituted an alleged “accommodation” for religious nonprofits like CNS Ministries and Heartland Christian College in which third party insurance providers or administrators supposedly provide the objectionable drugs and devices directly to requesting employees. This “accommodation” is a shell game, as the non-profits’ employment of its employees is still the direct cause of the provision to them of abortifacients and coverage for same.

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17. Defendants acted with full knowledge of the beliefs of thousands of employers and the employees they insure, like the Plaintiffs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than callous disregard of the religious beliefs of the Plaintiffs and many other Americans. The Defendants accordingly seek refuge in this Court.
JURISDICTION AND VENUE 18. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,1343(a)(4), 1346(a)(2), and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1. 19. Venue lies in this district pursuant to 28 U.S.C. § 1391(e).
THE PARTIES 20. Plaintiff Sharpe Holdings is a for-profit Missouri corporation residing in Shelby County, Missouri. 21. Plaintiff Ozark is a for-profit Missouri corporation residing in Jackson County, Missouri. 22. Plaintiff CNS Corporation is a for-profit Missouri corporation residing in Jackson County, Missouri. 23. Plaintiff N.I.S. is a for-profit Missouri corporation residing in Jackson County, Missouri. 24. Plaintiff CNS Ministries is a non-profit Missouri corporation residing in Shelby County, Missouri.

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25. Plaintiff Heartland Christian College is a non-profit Missouri corporation residing in Knox County, Missouri.
26. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; the founder, owner, president and chairman of the board of CNS Corporation; the president, founder, chairman of the board and chief executive officer of CNS Ministries; and the founder of Heartland Christian College. He is a resident of Shelby County, Missouri.
27. Plaintiff Judi Diane Schaefer is an individual residing in Shelby County, Missouri.
28. Plaintiff Rita Joanne Wilson is an individual residing in Shelby County, Missouri. 29. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 30. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 31. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate. 32. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.

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33. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
34. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
35. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Plaintiffs’ Religious Beliefs and Practices Related to Abortion
36. Charles N. Sharpe is the founder, owner, chairman of the board and chief executive officer of Sharpe Holdings; the founder, owner, president and chairman of the board of Ozark; the founder, owner and chairman of the board of N.I.S; the founder, owner, president and chairman of the board of CNS Corporation; the president, founder, chairman of the board and chief executive officer of CNS Ministries; and the founder of Heartland Christian College. Mr. Sharpe is responsible for setting all policies governing the conduct of all phases of the activities of the Corporate Plaintiffs, except for the religious non-profit Heartland Christian College, which he founded but does not govern. He strives to make sure the Corporate Plaintiffs’ activities are in accordance with Christian principles and coinciding sincerely held religious beliefs. He is also a minister of the gospel.
37. Sharpe Holdings is a Missouri, for-profit corporation that employs individuals in a variety of industries, including but not limited to, farming, dairy, creamery and cheese-making.

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Sharpe Holdings promotes the Christian beliefs, practices, and aspirations espoused by its
founder and owner, Charles N. Sharpe. Outward examples include its milk tankers, which are
emblazoned with the message “Jesus is the Answer,” and its milk and cheese products, marketed
under the name of Heartland Creamery, which substitute the “T” in Heartland with a Christian
cross.
38. The Sharpe Holdings website describes the corporation’s various enterprises and
contains several demonstrations of its faith-based mission, including, for instance, the front page
of the website which is subtitled “Transforming Hearts and Lives through the Power of Jesus
Christ.” See http://www.sharpeholdingsinc.com/.
39. Sharpe Land & Cattle is a division within Sharpe Holdings. The Sharpe Holdings
website says the following of Sharpe Land & Cattle:
The goal of Sharpe Land & Cattle goes far beyond the further growth of an already thriving agricultural enterprise. The heart behind the organization aspires to help people rebuild their lives through the changing power of Jesus Christ. By modeling their work ethic before the men at the Recovery Center, and by providing vocational opportunities for those in their community, the staff of Sharpe Land & Cattle strives to implement Godly principles in every aspect of their business. By remaining true to this calling, Sharpe Land & Cattle has experienced a sovereign move of God—and they plan to continue operating under God’s blessing.
http://www.sharpeholdingsinc.com/slc.html.
40. Ozark is a Missouri, for-profit life insurance company.
41. N.I.S. is a Missouri, for-profit securities broker/dealer.
42. Ozark and N.I.S. work in conjunction in providing an insurance/investment
product called The Balanced Program that combines mutual fund investment and life insurance.
43. Ozark and N.I.S. share a website, which states that “Ozark National Life is
proud to be associated with” and supports Heartland Ministries. http://www.ozark-
national.com/connect.aspx. There is a link to the Heartland Ministries website, whose

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homepage states, among other things, “Jesus is the answer!” http://heartland-ministries.org. Charles N. Sharpe is the founder and head pastor for Heartland Ministries.
44. CNS Corporation is a Missouri, for-profit corporation that serves as a holding company for Sharpe Holdings, Ozark and N.I.S.
45. CNS Ministries provides full-time residential services to men, women and children who suffer from alcohol or drug dependencies or other behavioral problems.
46. Heartland Christian College is a Missouri non-profit corporation that provides post-secondary higher education to employees and residents of CNS International Ministries and their dependents, in addition to others. It is part of the same community in which CNS Ministries and Sharpe Holdings participate.
47. Christian belief and practice are integral to the identities of the Corporate Plaintiffs, and adherence to Christian tenets is a deeply and sincerely integral aspect of the Corporate Plaintiffs.
48. The Corporate Plaintiffs seek to defend and promote certain moral and ethical standards in their employees, including not just teaching them a life-sustaining work ethic but also promoting a belief in the sanctity and quality of life which precludes abortion on demand through abortifacient drugs and devices or otherwise.
49. As part of their religious missions, the Corporate Plaintiffs promote the wellbeing and health of their employees. In furtherance of these commitments, the Corporate Plaintiffs ensure that their employees have comprehensive medical coverage. The Corporate Plaintiffs all utilize the same self-insured plan. The plan purposely excludes coverage for abortions or abortifacient drugs or devices.
50. Judi Diane Schaefer and Rita Joanne Wilson are Sharpe Holdings employees.

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Health insurance coverage is a benefit of their employment at Sharpe Holdings. They pay a portion of the premiums required in order to maintain this coverage. Said premiums partially fund medical services provided to other employees covered under the same plan.
51. Mr. Sharpe, Ms. Schaefer and Ms. Wilson oppose the use, funding, provision or support of abortion on demand as a matter of sincerely held religious belief and practice.
52. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of health care coverage for abortions or abortifacient drugs and devices, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
53. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of information or guidance to others under the same insurance plan about locations at which they can access abortifacients, or related education and counseling, without violating their deeply and sincerely held religious beliefs.
54. The Sharpe Holdings health insurance plan year began on January 1, 2013. The Ozark, CNS Corporation and N.I.S. plans formerly began on July 1, 2013, but now begins, with all the other corporations, on January 1, 2014. The plan year for CNS Ministries and Heartland Christian College begins on January 1, 2014. II. Abortifacient Drugs and Devices
55. “Plan B” (levonorgestrel) was approved by the Food and Drug Administration (“FDA”) as a prescription-only drug product on July 28, 1999 and was approved by the FDA for over-the-counter sales on August 24, 2006 for women 18 years of age and older and by prescription for those 17 or younger. It is to be taken within three days after unprotected sex. On July 9, 2009, a more potent version, Plan B One Step, was approved by the FDA with the same restrictions. Next Choice is another FDA-approved levonorgestrel abortifacient. See

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FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
56. “ella” (ulipristal acetate) was approved by the FDA on August 13, 2010. ella is a prescription-only drug product which is taken within five days after a contraceptive failure or unprotected sex. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
57. Copper IUDs (intra-uterine devices) were approved by the FDA in 1984. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
58. Each of the aforementioned abortifacient drugs or devices frequently operates by stopping a fertilized egg from being implanted into the uterus. III. The Affordable Care Act
59. In March 2010, Congress passed and President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
60. The Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
61. The Act does not apply equally to all insurers, employers or individuals. 62. The Act does not apply its fine and penalty provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).

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63. The Act is not generally applicable because it provides for numerous exemptions from its rules.
64. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. Given plan changes since March 23, 2010, the Plaintiffs’ health insurance plan does not qualify as a grandfathered health plan. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
65. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
66. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. See Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-youhavegrandfathered.html (last visited May 27, 2013). According to government estimates, a total of 191 million Americans belong to plans that may be grandfathered under the Act. Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34538, 34540 (June 17, 2010).
67. In addition to grandfathering under the Act, the preventive care guidelines exempt certain religious employers (as more fully described infra) from any requirement to cover contraceptive services. 45 C.F.R. § 147.130(a)(iv)(B).
68. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.

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69. None of the several exemptions from the law applies to any of the Plaintiffs. 70. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of a “health care sharing ministry” that meets certain criteria). 71. The Department of Health and Human Services has the authority under the Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. Upon information and belief, more than a thousand HHS waivers have been granted. The Act is not neutral because some religious groups have received HHS waivers while other religious groups have not. 72. The Act is not generally applicable because Defendants have granted numerous waivers from complying with the Act’s requirements. 73. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 74. Defendants’ waiver practices create a system of individualized assessments to qualify for an exemption. 75. Violations of the Act can subject an employer, an insurer and individuals to substantial monetary penalties.

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76. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
77. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Act).
78. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
79. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 75700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).

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IV. The Preventive Care Mandate 80. The Affordable Care Act mandates that health plans “provide coverage for and
shall not impose any cost sharing requirements for[,] . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” and directs the Secretary of HHS to determine what would constitute “preventive care” under the mandate. 42 U.S.C. § 300gg—l3(a)(4).
81. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Act. 75 Fed. Reg. 41726 (2010). The interim final rule requires providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
82. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of “health care,” including abortion on demand and abortifacients.
83. HHS directed an independent, non-profit private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventive care for women. See Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited May 27, 2013).
84. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John

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Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
85. No religious groups or other groups that oppose government-mandated coverage of abortion and related education and counseling were among the invited presenters.
86. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventive services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
87. FDA-approved “contraceptive” methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
88. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (the Mandate), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day the Health Services and Resources Administration (“HRSA”) issued guidelines adopting the IOM recommendations. See

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Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited May 27, 2013).
89. The Mandate also requires group health care plans and issuers to provide education and counseling, including on the subject of abortifacients, for all women beneficiaries with reproductive capacity.
90. The Mandate went into effect immediately as an “interim final rule.” 91. HHS did not adequately accommodate the concerns of religious organizations or individuals in the comments submitted before the Mandate was issued. The Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 92. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online. Upon information and belief, over 100,000 comments were submitted against the Mandate. 93. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL (National Abortion Rights Action League) Pro-Choice America. She told the assembled crowd that “we are in a war.” 94. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations and individuals like the Plaintiffs. 95. The Mandate requires that the Plaintiffs provide coverage for or otherwise participate in the provision of abortifacients and related education and counseling against Plaintiffs’ religiously informed consciences. 96. The Mandate constitutes government-imposed pressure and coercion on the Plaintiffs to change or violate their religious beliefs and practices. 97. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to

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substantial fines, and, in the case of Judi Diane Schaefer and Rita Joanne Wilson, jeopardizes access to affordable health insurance and exposes them to fines, because of Plaintiffs’ refusal to change or violate their religious beliefs and practices.
98. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of abortifacients and related education and counseling in violation of their religious beliefs, conduct which is equivalent to assisting another to intentionally destroy innocent human life.
99. It is the Plaintiffs’ sincerely held religious belief that human life begins at conception.
100. The Plaintiffs believe that abortifacients such as Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus, and therefore can and do cause the death of the embryo, which is a human life.
101. Plan B, ella and copper IUDs can and do prevent the implantation of a human embryo in the wall of the uterus. Plan B, ella and copper IUDs can and do cause the death of the embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law and as that term is understood by Plaintiffs.
102. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of abortifacients such as Plan B, ella and copper IUDs, free of charge, regardless of the ability of employees to obtain these drugs from other sources.
103. The Mandate forces the Plaintiffs to fund or to otherwise participate in the

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provision of education and counseling concerning abortion that directly conflicts with the Plaintiffs’ religious beliefs and/or teachings.
104. The Corporate Plaintiffs and Charles N. Sharpe cannot terminate their employees from health insurance coverage without violating their religious duty to provide for the health and well-being of their employees, and would be hampered in their ability to hire and retain qualified employees if they were unable to provide health insurance. Additionally, employees such as Judi Diane Schaefer and Rita Joanne Wilson would be unable to attain similar coverage in the market as it exists today.
105. The Mandate forces the Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee health care plans.
106. Providing counseling and education about abortion directly undermines and subverts the explicit messages and speech of the Plaintiffs. Being compelled to provide such counseling and education constitutes compelled speech, in violation of the First Amendment. Being compelled to refer to abortifacients as “preventive care” also constitutes compelled speech in violation of the First Amendment. V. The Narrow and Discretionary Religious Exemption
107. The Mandate indicates that the HRSA “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). The Mandate at first allowed the HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section

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6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
108. On January 20, 2012, Defendant Sebelius announced that there would be no change to the narrow religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify that they qualify for the one-year extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Services’ Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/ 2012pres/ 01/20120120a.html (last visited May 27, 2013).
109. After receiving complaints regarding the narrow nature of the religious employer exemption, the Defendants altered the exemption so that a “religious employer” would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461.
110. In other words, religious organizations like the Plaintiffs that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption.
111. None of the Corporate Plaintiffs, although religious employers, qualifies as a church or an integrated auxiliary of a church.

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VI. The Mandate Becomes Final, Without Change. 112. On February 10, 2012, President Obama held a press conference at which he
announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different contraceptive services mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
113. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applied to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants stated that qualifying organizations would not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013,” provided they meet certain criteria outlined in the guidance bulletin.
114. The Corporate Plaintiffs, though religious employers with religious objections to certain contraceptive (as that term is used by the FDA) coverage, do not qualify for the Safe Harbor because they are for-profit corporations. VII. The Defendants’ Proposed “Accommodation” For Religious Nonprofits
115. On June 28, 2013, The Defendants issued final rules that laid out an “accommodation” for non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
116. The “accommodation” did not resolve the concerns of religious nonprofit

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organizations like CNS Ministries, which are forced to provide coverage that necessarily includes and triggers access to abortion-inducing drugs and related education and counseling. The “accommodation” did not resolve the concerns of smaller (under 50 employees) organizations like Heartland Christian College, which are forced, if they choose to provide health coverage to their employees, to provide coverage that includes or triggers access to abortion-inducing drugs and related education and counseling.
117. “[O]ver 400,000 comments” were submitted in response to the announcement of the “accommodation,” 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
118. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
119. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package. See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25) (emphasis added).
120. Given the timing of these remarks, it is clear that Defendants gave no

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consideration to the comments submitted in response to the proposed “accommodation.” 121. Moreover, Secretary Sebelius’ remarks belie the assertion that objecting
employers are not actually “providing coverage for” morally objectionable items in the health insurance plans they provide employees.
122. An organization is eligible for the “accommodation” if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
123. CNS Ministrites and Heartland Christian College are eligible for the so-called “accommodation.”
124. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875.
125. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889.
126. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer. If the organization has a self-insured plan, it would deliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875.
127. If CNS Ministries and Heartland Christian College elect to invoke the “accommodation” with respect to the self-insured plan, they would be required to execute the self-certification and deliver it to the plan’s third party administrator before January 1, 2014.
128. By delivering its self-certification to its third-party administrator, CNS Ministries

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and Heartland Christian College would trigger the third-party administrator’s provision of or arrangement for payments for the morally abhorrent abortifacients. 78 Fed. Reg. 39892-39893. These payments constitute coverage of the items to which Plaintiffs object. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”). These payments also are treated as coverage under the consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from the self-insured plan in which CNS Ministries and Heartland Christian College participate.
129. By issuing their self-certifications, CNS Ministries and Heartland Christian College would be identifying their participating employees to the insurer or third-party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services.
130. The insurer’s third-part administrator’s obligation to make direct payments for abortifacient services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
131. Accordingly, CNS Ministries and Heartland Christian College would have to coordinate with its insurer or third-party administrator whenever it added or removed employees and beneficiaries to or from their healthcare plan and, as a direct and unavoidable result, to or from the abortifacient services payment scheme.
132. The insurer or third-party administrator is required to notify plan participants and beneficiaries of the abortifacient payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876. This would also require CNS Ministries and Heartland

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Christian College to coordinate the notices with their insurer or third-party administrator. 133. The insurer or third-party administrator is required to provide the abortifacient
benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77. Thus, any payment or coverage disputes presumably would be resolved under the terms of existing plan documents for CNS Ministries and Heartland Christian College.
134. Thus, even under the accommodation, CNS Ministries and Heartland Christian College, along with every other non-exempt objecting religious organization, would continue to play a central role in facilitating free access to abortifacient services. CNS Ministries and Heartland Christian College would be a sine qua non cause of the provision of the coverage that they sincerely oppose as a matter of religious belief and practice.
135. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
136. Nevertheless, even if the payments, over time, eventually resulted in cost savings in other areas, it is undisputed that it would cost money at the outset to make the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
137. Moreover, if the cost savings that allegedly will arise make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers or administrators.
138. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact

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and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. 39877.
139. This encourages issuers to artificially inflate the eligible organization’s premiums. 140. Under this methodology—assuming it is even legal—the eligible organization would still bear the cost of the required payments for abortifacient services in violation of their consciences, as if the accommodation had never been made. 141. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878. 142. There is no legal authority for forcing third parties to pay for services provided to the employees of eligible organizations under the accommodation. 143. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers or administrators to make separate payments for contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries. 144. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority. 145. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations with self-insured plans from being co-opted as the central cog in the government’s scheme to force the free provision of contraceptive and abortifacient services even when the organizations object to facilitating those services. 146. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for

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expanding access to contraceptive and abortifacient services. 147. Despite the accommodation’s convoluted machinations, a religious organization’s
decision to offer health insurance (which the ACA’s employer mandate requires of employers of 50 or more employees) and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services to its employees and plan beneficiaries from the same plan they are funding.
148. CNS Ministries and Heartland Christian College cannot participate in or facilitate the government’s scheme in this manner without violating their religious convictions.
149. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the contraceptive mandate, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, implementing and/or using their group health plans, their hiring and retention programs, their employment, and/or their social, educational, and other programs and ministries.
150. Absent injunctive and declaratory relief against the offending portions of the contraceptive mandate, the Plaintiffs have endured and will continue to endure irreparable harm that outweighs any harm to the Defendants.
151. The Plaintiffs are likely to succeed on the merits of their claims. 152. An injunction, as sought by the Plaintiffs, would not adversely affect the public interest.
CAUSES OF ACTION COUNT I
Violation of the Religious Freedom Restoration Act 153. The Plaintiffs incorporate by reference all preceding paragraphs.

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154. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortions or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise.
155. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs.
156. The Mandate exposes the Plaintiffs to substantial fines and penalties for their religious exercise or forces them to forfeit their right to employee health insurance.
157. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees.
158. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice.
159. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate.
160. The Mandate is not narrowly tailored to achieve any compelling governmental interest in a way that is least restrictive to Plaintiffs’ rights.
161. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
162. Absent injunctive and declaratory relief against the Defendants, the Plaintiffs have been and will continue to be harmed.

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COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 163. The Plaintiffs incorporate by reference all preceding paragraphs. 164. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for abortion or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise. 165. Neither the Affordable Care Act nor the Mandate is neutral. 166. Neither the Affordable Care Act nor the Mandate is generally applicable. 167. Defendants have created categorical exemptions and individualized assessment exemptions to the Mandate. 168. The Mandate furthers no compelling governmental interest. 169. The Mandate is not narrowly tailored to be the least restrictive means of furthering Defendants’ stated interests. 170. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs. 171. The Mandate chills the Plaintiffs’ religious exercise. 172. The Mandate exposes the Plaintiffs to substantial fines for their religious exercise or forces them to forfeit their right to employee health insurance. 173. The Mandate exposes the Corporate Plaintiffs and Charles N. Sharpe to substantial competitive disadvantages, in that they will no longer be permitted to offer health insurance to employees. 174. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice.

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175. The Mandate is not narrowly tailored to achieve any compelling governmental interest.
176. Despite being informed in detail of the fact that millions of Americans had beliefs similar to those of the Plaintiffs, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for the Plaintiffs to comply with their religious beliefs.
177. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the Plaintiffs and others.
178. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
179. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Establishment Clause 180. The Plaintiffs incorporate by reference all preceding paragraphs. 181. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions and in a selective burden on the Plaintiffs. 182. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.

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183. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 184. The Plaintiffs incorporate by reference all preceding paragraphs. 185. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs. 186. The Mandate would compel the Plaintiffs to subsidize and participate in activities that they teach are violations of their religious beliefs. 187. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion. 188. Expenditures are a form of speech protected by the First Amendment. 189. Defendants’ actions thus violate the Plaintiffs’ rights to be free from compelled speech as secured to them by the First Amendment of the United States Constitution. 190. The Mandate’s compelled speech requirement is not narrowly tailored to achieve a compelling governmental interest in a way least restrictive to Plaintiffs’ rights. 191. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association
192. The Plaintiffs incorporate by reference all preceding paragraphs.

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193. The Plaintiffs teach and/or believe that abortion on demand violates their religious beliefs.
194. The Mandate would compel the Plaintiffs to subsidize, fund or participate in the subsidization of activities that they teach are violations of their religious beliefs.
195. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of abortifacients and education and counseling related to abortion.
196. Defendants’ actions thus violate the Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution.
197. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the Administrative Procedure Act

198. The Plaintiffs incorporate by reference all preceding paragraphs. 199. The Mandate is contrary to § 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.” The Act also leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” 42 U.S.C. § 18023(b)(1)(A)(ii). 200. The Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on organizations and individuals like the Plaintiffs. 201. The Mandate is contrary to existing law and is in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).

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202. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, these Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Fifth Amendment to the United States Constitution; c. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Religious Freedom Restoration Act; d. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Administrative Procedure Act; e. Issue an order prohibiting Defendants from enforcing the Mandate against these
Plaintiffs insofar as it requires them to provide, fund or participate in the provision of abortions or abortifacients, including Plan B, ella and copper IUDs, or related education and counseling; f. Award these Plaintiffs the costs of this action and reasonable attorney’s and expert’s fees pursuant to 42 U.S.C. § 1988 or as otherwise provided by law; and g. Award such other and further relief as it deems just and necessary.

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OTTSEN, LEGGAT AND BELZ, L.C.

By: /s/ Timothy Belz______________ Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 112 South Hanley, Suite 200 St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@omlblaw.com

Attorney for Plaintiffs

Certificate of Service

I hereby certify that on November 19, 2013, the foregoing was filed electronically with the Clerk of the Court for the United States District Court for the Eastern District of Missouri to be served by operation of the Court’s electronic filing system upon the following registered CM/ECF participants:

Jacek Pruski U.S. DEPARTMENT OF JUSTICE - CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530

Christina Bahr Moore OFFICE OF U.S. ATTORNEY 111 S. Tenth Street 20th Floor St. Louis, MO 63102

/s/ Timothy Belz

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12 CV 92 DDN

MEMORANDUM AND ORDER

This action is before the court on the m otion of plaintiffs CNS International Ministries,

Inc. and Heartland Christian College for a

temporary restraining order and prelim inary

injunction. (Doc. 62.) The partie s have consented to the exerci se of plenary authority by the

undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 69.)

On December 20, 2012, plaintiffs Sharpe Ho ldings, Inc., Rita Joanne W ilson, Judi

Dianne Schaefer, and Charles N. Sharpe commenced this action against defendants United States

Department of Health and Hum an Services, U nited States Departm ent of the Treasury, United

States Department of Labor, and Kathleen Sebe lius, Timothy Geitner, and Hilda Solis in their

official capacities as the respec tive secretaries of the defendant departm ents. (Doc 1.)

Collectively, defendants are the departm ents and officials responsible for adopting,

administering, and enforcing the regulations at issue.

The Patient Protection and Affordable Care Act, Pub. L. 111-148, and the Health C are

and Education Reconciliation Act, Pub. L. 111 -152, (the Act) both en acted in March 2010,

regulates the national health in surance market by directly re gulating group health plans and

health insurance issu ers. The Act contains a preventive services coverage provision which

provides:

“A group health plan and a health insu rance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirem ents for[,] with resp ect to wo men, such additional preventive care and screenings . . . as provided f or in com prehensive

guidelines supported by the Health Res ources and Services Adm inistration for purposes of this paragraph.”

42 U.S.C. § 300gg–13(a)(4).

The Health Resources and Services Adm inistration has issued guidelines requiring

coverage for “[a]ll Food and Drug Adm inistration approved contraceptive methods, sterilization

procedures, and patient educati on and counseling for all wom en with reproductive capacity.”

Women's Preventive Services: Required Health Plan Coverage Guidelines, Health Resources and

Services Administration, http://www.hrsa.gov/womensguidelines/ (last visited Dec. 31, 2012).

The FDA has approved several contraceptive methods, including Plan B, Ella, and copper intrauterine devices (IUDs).1 Birth Control Guide, F DA Office of W omen's Health,

www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014

.pdf.

The government issued a regul ation (contraceptive m andate) that adopted the H ealth

Resources and Service Adm inistration guidelines as final. 77 Fed. Reg. 8725. G roup health

plans and health insurance issuers are requ ired to provide coverage consistent with the

guidelines, without cost sharing, in plan or policy years beginning on or after August 1, 2012.

Id. at 8725-26.

Employers failing to m eet the requirem ents of the Act and contraceptive m andates

subject themselves to a num ber of liabilities. First, failure to provide an em ployee health

insurance plan is penalized with a fine in the amount equal to one-twelfth of $2000 multiplied by

the number of full-time employees on a m onthly basis. 26 U.S.C. § 4980H. Further, failure to

meet the group plan health re quirements is penalized in th e amount of $100 per day for each

affected employee. 26 U.S.C. § 4980D. However, em ployers with fewer t han fifty full-time

employees are not subject to penalties and fine s for failure to provid e their em ployees with

health insurance, but if they choose to provide employees with insurance, they must provide the

minimum essential coverage. See 26 U.S. C. §§ 4980D, 4980H. Moreover, the fines and

penalties do not apply until Janu ary 1, 2015. U. S. Dept. of the Treasury, Continuing to

Implement

the ACA in a Careful, Thoughtful Manner,

http://www.treasury.gov/connect/blog/Pages/Continuing-to-Implement-the-ACA-in-a-Careful-

1 Plaintiffs refer to these particular contraceptive methods as abortifacients.

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Thoughtful-Manner-.aspx (last vis ited December 12, 2013). Additionally, 29 U.S.C. § 1132 authorizes private enforcement suits for failure to meet the requirements of the Act.
On December 31, 2012, the court issued a tem porary restraining order, prohibiting the enforcement of the A CA Mandate regulations re garding abortifacient devices and related counseling. (Doc. 20.) On January 14, 2013, the temporary restraining order was continued until the court’s determ ination regarding additional injunctive reli ef. (Doc. 31.) On June 14, 2013, plaintiffs filed a first am ended complaint to add Ozark National Life Insurance Com pany, N.I.S. Financial Services, Inc., and CNS Corporation as plaintiffs. (Doc. 52.) On June 28, 2013, the court sustained plaintiffs’ request for a preliminary injunction. (Doc. 56.) On September 30, 2013, the court left the prelim inary injunction in effect and stayed the proceedings pending the resolution of “the appeal in O'Brien v. HHS, No. 12-3357, or in Annex Medical, Inc. v. Sebelius, No. 13-1118, whichever occurs first, including th e time any proper applica tions for relief is before the Supreme Court.” (Doc. 57.)
On December 11, 2013, plaintiffs filed a second am ended complaint to add CNS International Ministries, Inc. and Heartland Christian College as pl aintiffs. (Doc. 61.) Plaintiff CNS International Ministries is a Missouri non-profit corporation that provides full-tim e residential services to m en, women, and children who suffer from alcohol or drug dependencies and behavioral problem s. (Id. at ¶ 6.) It employs m ore than fifty people and offers health insurance to its em ployees through its own self-insured program . (Id.) Plaintiff Heartland Christian College is a Missour i non-profit corporation that pr ovides post-secondary higher education to employees and residents of CNS International Ministries and their dependents. (Id. at ¶ 7.) It offers health insurance to its em ployees through its own self-insured program . (Id.) Their plans expire on December 31, 2014. (Id. at ¶ 126.)
In accordance with their sincerely held religi ous beliefs and practic es, plaintiffs oppose the use, funding, provision, or support of abortion on demand and believe that use of Plan B, Ella, and copper IUDs constitute abortion on demand. (Id. at ¶¶ 48-58. ) Further, adherence to these tenets is integral to them. (Id. at ¶ 47.)
In their complaint, pla intiffs allege violation of the Religious Freedo m Restoration Act (RFRA), violations of the Firs t Amendment Free Exercise Clause, Establishm ent Clause, the right against compelled speech, and the right of expressive association, as well as violation of the Administrative Procedure Act. (Id.) Plaintiffs seek declarations that the contraceptive m andate
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and defendants’ enforcem ent thereof violate th e First and F ifth Amendments, RFRA, and the Administrative Procedure Act; an order prohibiting defendants’ enforcement of the contraceptive mandate with respect to Plan B, ella, copper IUDs, and related educat ion and counseling; and costs and reasonable attorney and expert fees under 42 U.S.C. 1988. (Id.)
Plaintiffs CNS International Ministries, Inc. and Heartland Christian College alleg e that they do not qualify for the religious employer exemption from the contraceptive mandate. (Id. at ¶¶ 109-11.); see 45 C.F.R. § 147.130(a)(iv)(B). Howeve r, they allege that they are eligible for the religious employer accommodation. (Do c. 61 at ¶ 123.) The regulations provide an accommodation for an organization that: (1) “op poses providing coverage for som e or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “s elf-certifies that it satisf ies the first three criteria.” 45 C.F.R. § 147.131( b). Organizations seeking this accommodation must self-certify prior to the beginning of the first plan year and deliver it to the insurer or, in the case of the selfinsured, the third party adm inistrator. Id. § 147 .131(c)(1). The third party adm inistrator must then exclude contraceptive coverage from the group health insurance coverage and provide separate payments for contraceptive services for the plan beneficiaries. Id. § 147.131(c)(2). The third party adm inistrator must also notify the pl an beneficiaries of this contraceptive paym ent benefit. Id. § 147.131(d).
In essence, plaintiffs CNS International Mi nistries, Inc. and Heartland Christian College argue that although th e accommodation alters th e means, they continu e to be requ ired to take affirmative steps to f acilitate access to abortifacient services in violation of their Fir st Amendment rights. The court has al ready granted injunctive relief to the other plaintiffs in this case, and the arguments for those plaintiffs are substantially similar to the arguments now before the court. The resolution of the O'Brien or Annex Medical appeals will also likely f acilitate the resolution of the argum ents of plaintiffs CNS International Ministries, Inc. an d Heartland Christian College. Thus, the court extends the pre liminary injunction and stay currently in effect to plaintiffs CNS Intern ational Ministries, Inc. and Heartlan d Christian College. See Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. 2013).
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For the reasons stated above, IT IS HEREBY ORDERED that the m otion of plaintiffs CNS International Ministries, Inc. and Heartland Christian College for leave to file an overlength m emorandum in support of their pending motion (Doc. 63) is sustained. IT IS FURTHER ORDERED that the motion of plaintiffs CNS International Ministries, Inc. and Heartland Christian Colleg e a tem porary restraining order and prelim inary injunction (Doc. 64) is sustained. The preliminary injunction and stay currently in effect (Docs. 56, 57) are extended to plaintiffs CNS International Ministries, Inc. and Heartland Christian College.

Signed on December 30, 2013.

/S/ David D. Noce______________ UNITED STATES MAGISTRATE JUDGE

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12 CV 92 DDN

MEMORANDUM This action is before the court on the motion of plaintiffs Sharpe Holdings, Inc., Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., CNS Corporation, and Charles N. Sharpe for the entry of final judgment pursuant to Federal Rule of Civil Procedure 54(b). (Doc. 119.)

I. BACKGROUND Plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Schaefer, and Rita Joanne Wilson commenced this action on December 20, 2012, against the Department of Health and Human Services, its Secretary, Kathleen Sebelius, the Department of the Treasury, its Secretary, Timothy Geithner, the Department of Labor, and its Secretary, Hilda Solis. Plaintiffs claimed the Affordable Care Act’s1 contraception mandate violates the Religious Freedom Restoration Act (RFRA); the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution; their freedoms of speech and association guaranteed by the First Amendment to the United States Constitution; and the Administrative Procedures Act, 5 U.S.C. § 706(2).

1 The Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010) are collectively known as the “Affordable Care Act” (“ACA”).

Plaintiffs Sharpe Holdings, Ozark National Life Insurance, N.I.S. Financial Services, CNS Corporation, and Charles N. Sharpe2 filed a motion for summary judgment and request for permanent injunction on October 1, 2014. (Docs. 95, 96.) The court granted the motion and issued a permanent injunction on February 13, 2015. (Doc. 102.) Plaintiffs were awarded $138,632.50 in attorneys’ fees and expenses under 42 U.S.C. § 1988(b). (Doc. 111.)
On September 8, 2015, plaintiffs filed this motion requesting a decree of final judgment regarding only the for-profit plaintiffs in order to obtain the previously awarded attorneys’ fees and expenses. (Doc. 119 at 2.) Defendants do not oppose this motion as long as the court determines that there is no just reason for delay and includes that conclusion in its decree. (Doc. 123.)
II. FINAL JUDGMENT PURSUANT TO RULE 54(b)
Federal Rule of Civil Procedure 54(b) provides for judgment on multiple claims or involving multiple parties:
When an action presents more than once claim for relief – whether as a claim, counterclaim, crossclaim, or third-party claim – or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. Fed. R. Civ. P. 54(b)
In order for this decree to have effect the court must expressly determine that there is no just reason for delay regarding the parties or claims in question. Without a final judgment an appeal cannot be taken by any party. Parsing the issues this way, however, should not be done
2 Defendants appealed the decision to extend the temporary restraining order and preliminary injunction to plaintiffs CNS International Ministries and Heartland Christian College. (Doc. 85.) The Eighth Circuit affirmed this court’s ruling instituting the temporary restraining order and preliminary injunction as to the non-profit corporation plaintiffs. Sharpe Holdings, et al. v. HHS, No. 14-1507, 2015 WL 5449491, at *13 (8th Cir. Sept. 17, 2015).
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just as an accommodation to counsel, but “only if there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal.” Assurance Co. of Am. v. Syntrax Innovations, Inc., 2005 WL 1528254, at *2 (E.D. Mo. June 27, 2005) (citing Bullock v. Baptist Mem’l Hosp., 817 F.2d 58, 59 n.2 (8th Cir. 1987)). This policy avoids piecemeal and interlocutory appeals. Id. (citing Burlington N.R.R., Co. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985) (per curiam)).
In this case plaintiffs seek compensation for over 374 hours billed, which total $132,322.50 in fees and expenses. (Doc. 119.) This portion of the case has been ongoing since December 2012. At this time, it does not appear that the non-profit portion of the case will substantially affect the for-profit portion. However, it is foreseeable that the non-profit portion of this case will continue through another appeal as there is now a Circuit split on the Affordable Care Act’s birth control mandate as applied to non-profits.3 Compare Sharpe Holdings, et al., 2015 WL 5449491 with Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015); Geneva Coll. v. Sec’y U.S. Dep’t of HHS, 778 F.3d 422 (3d Cir. 2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015); Grace Schools, et al. v Burwell, Nos. 14-1430 &14-1431, 2015 WL 5167841 (7th Cir. Sept. 4, 2015); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015). It would be unjust to withhold the award of fees and expenses to the for-profit plaintiffs’ until further resolution of the non-profit plaintiffs’ case, which could continue but, barring an unforeseen circumstance, will have no effect on the for-profit plaintiffs.
Applying these considerations, the court finds and concludes that there is no just reason to delay the entry of final judgment on the claims of plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, CNS Corporation, Ozark National Life Insurance Company, and N.I.S. Financial
3 No petition for a rehearing en banc or certiorari has been filed in Sharpe Holdings as of September 25, 2015. Petitions for certiorari have been filed in several of the other similarly situated cases. E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015), petition for cert. filed, (July 8, 2015) (No. 15-35); Geneva Coll. v. Sec’y of Dep’t of HHS, 778 F.3d 422 (3d Cir. 2015), petition for cert. filed, (Aug. 11, 2015) (No. 15-191); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015), petition for cert. filed (July 23, 2015).
-3-

Services, Inc. Not entering a decree of final judgment on the for-profit plaintiffs’ claims would result in a hardship and injustice to these plaintiffs.
Therefore, IT IS HEREBY ORDERED that the motion of the for-profit plaintiffs for entry of final judgment (Doc. 119) is sustained. IT IS FURTHER ORDERED that the Clerk of the Court enter final judgment in favor of plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, CNS Corporation, Ozark National Life Insurance Company, and N.I.S. Financial Services, Inc. against defendants.

Signed on October 9, 2015.

/S/ David D. Noce UNITED STATES MAGISTRATE JUDGE

-4-

 
 Case: 2:12-cv-00092-DDN Doc. #: 102 Filed: 02/13/15 Page: 1 of 2 PageID #: 1160

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

No. 2:12 CV 92 DDN

ORDER AND INJUNCTION Before the court is the motion of plaintiffs for summary judgment. (Doc. 95.) Defendants have consented to the entry of judgment and certain injunctive relief. (Doc. 98.) Plaintiffs seek judgment on their claims that the contraceptive mandate included in the Affordable Care Act, Public Law 111-148, 124 Stat. 119 (2010), violates plaintiffs rights under the Religious Freedom Restoration Act , 42 U.S.C. § 2000bb et seq. The court has given due consideration to the parties' presentations on the language of the appropriate permanent injunctive relief to be entered following the ruling of the Supreme Court in Burwell v. Hobby Lobby Stores, Inc. 134 S. Ct. 2751 (2014). Whereupon, IT IS HEREBY ORDERED that the motion of plaintiffs for summary judgment (Doc. 95) is sustained in that judgment is entered in favor of all plaintiffs, both individual and corporate, and against defendants on plaintiffs' claim under the Religious Freedom Restoration Act , 42 U.S.C. § 2000bb et seq. All other claims of the plaintiffs are dismissed. IT IS FURTHER ORDERED as follows: Defendants, their agents, officers and employees are PERMANENTLY ENJOINED and prohibited from applying and enforcing against any of the named plaintiffs, individual or corporate, their employee health plan(s), or their insurer(s) the statute and regulations that require plaintiffs, health plans, or insurers to provide plaintiffs' employees insurance coverage for all Food and Drug Administration approved contraceptive methods, sterilization procedures,

Case: 2:12-cv-00092-DDN Doc. #: 102 Filed: 02/13/15 Page: 2 of 2 PageID #: 1161
and patient education and counseling for all women with reproductive capacity, as prescribed by a health care provider, 77 Fed. Reg. 8725, as well as any penalties, fines, assessments, or enforcement actions for non-compliance, including those found in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. § 1132, to the extent these regulations require coverage of services that plaintiffs believe to be abortifacients.
IT IS FURTHER ORDERED that this Order and Injunction does not apply with respect to any changes in any statute or regulation that are enacted or promulgated after this date. Should any future legislation or regulation come into effect providing for-profit entities a religious accommodation to the contraceptive coverage mandate, the government may seek to enforce such legislation or regulation against plaintiffs. And nothing herein prevents plaintiffs from filing a new civil action to challenge any future changes.
IT IS FURTHER ORDERED that pursuant to E.D.Mo. Local Rule 84-8.02, unless otherwise ordered, the parties are directed to confer within 30 days of this Order and attempt to reach a settlement on attorneys' fees and costs. If no settlement of attorneys' fees and costs is reached, plaintiffs may file a motion for the award of attorneys' fees and costs, within 30 days after this conference.

Signed on February 13, 2015.

/S/ David D. Noce______________ UNITED STATES MAGISTRATE JUDGE

-2-

 
 !

2016 WL 2842448 Only the Westlaw citation is currently available.
Supreme Court of the United States
DEPT. OF H&HS, ET AL. V. CNS INT’L MINISTRIES, ET AL.
No. 15-775. |
May 16, 2016.
Opinion
*1 The petition for writ of certiorari is granted. The judgments is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit in light of Zubik v. Burwell, 578 U. S. ___ (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by respondent’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives.‘ Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation,
!
!

respondent have made the Government awis of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.‘ Id., at ___ (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, ‘precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage‘ going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on respondent for failure to provide the relevant notice. Justice Sotomayor, with whom Justice Ginsburg joins, concurs in the decision to grant, vacate, and remand in this case for the reasons expressed in Zubik v. Burwell, 578 U. S. ___ (2016) (Sotomayor, J., concurring).
All Citations
--- S.Ct. ----, 2016 WL 2842448 (Mem), 84 USLW 3630, 84 USLW 3626
!

!

1!

!

 
 Case: 2:12-cv-00092-DDN Doc. #: 138 Filed: 11/17/17 Page: 1 of 5 PageID #: 1688

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

INC., et. al.,

)

)

Defendants.

)

No. 2:12-CV-92-DDN

MOTION OF CNS INTERNATIONAL MINISTRIES, INC. AND HEARTLAND CHRISTIAN COLLEGE FOR PERMANENT INJUNCTION AND DECLARATORY
RELIEF

CNS International Ministries, Inc. (CNS) and Heartland Christian College, for their

Motion for Permanent Injunction and Declaratory Relief, state as follows:

1. On December 30, 2013, this Court granted the motion of CNS International

Ministries, Inc. (CNS) and Heartland Christian College (HCC) (collectively, Movants) for a

preliminary injunction. Doc. 84.

2. This injunction is still in place almost four years later, although it has been under

appeal by the government in the Eighth Circuit since early in 2014.

3. On October 6, 2017, the government published its new Interim Final Rule (IFR),

allowing religious nonprofits like Movants to simply elect not to provide contraceptive coverage

they considered religiously abhorrent, an exemption previously available only to churches and

their auxiliaries. 82 Fed. Reg. 47792 (Oct. 13, 2017). The government moved to dismiss its

appeal of this Court’s preliminary injunction of December 30, 2013. That motion was granted on

October 13, 2017.

Case: 2:12-cv-00092-DDN Doc. #: 138 Filed: 11/17/17 Page: 2 of 5 PageID #: 1689
4. The government has now concluded with and in its IFR that forcing religious employers like CNS and HCC to choose between their “accommodation” and the Mandate’s crippling fines is illegal under the Religious Freedom Restoration Act (RFRA). “Because we have concluded that requiring such compliance through the Mandate or accommodation has constituted a substantial burden on the religious exercise of many such entities or individuals, and because we conclude requiring such compliance did not serve a compelling interest and was not the least restrictive means of serving a compelling interest, we now believe that requiring such compliance led to the violation of RFRA in many instances.” Id. at 47806.
5. Although the government vigorously defended its Mandate before this Court in 2013, and has been fighting since then to defend its Mandate in various appellate courts and the Supreme Court, the government now admits that CNS and HCC, this Court, and the Eighth Circuit were right all along.
6. Movants now seek (1) to make their longstanding preliminary injunction permanent and (2) declaratory relief regarding the Mandate’s violation of Movants’ RFRA rights.
7. The government no longer challenges the Movants on the merits of the case. Instead, the government is prepared to argue that the case is moot because of the new interim final regulations that provide an exemption to Movants from the contraceptive mandate.
8. But “voluntary cessation of a challenged practice does not moot a case unless ‘subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)); see also City of Mesquite v. Aladdin's Castle, Inc., 455
2

Case: 2:12-cv-00092-DDN Doc. #: 138 Filed: 11/17/17 Page: 3 of 5 PageID #: 1690
U.S. 283, 289 (1982) (“The test for mootness is stringent. Mere voluntary cessation of allegedly illegal conduct does not moot a case.”).
9. Movants are filing a memorandum of law in support of this motion and incorporate that memorandum by reference.
10. Movants also incorporate all previously filed declarations in support of their motion for preliminary injunction, including the December 11, 2013 declarations of Charles N. Sharpe and David R. Melton. Docs. 64-1 and 64-2.
WHEREFORE, for the reasons stated herein and in all the pleadings, motions, briefs, declarations and exhibits filed in this matter, plaintiffs CNS International Ministries, Inc. and Heartland Christian College respectfully request:
(1) that the Court enter an injunction in favor of CNS International Ministries, Inc. (CNS) and Heartland Christian College (HCC): (a) enjoining the defendants, their employees, agents and successors in office from enforcing against CNS and HCC, their health plan, or their health insurance issuers or third-party administrators in connection with their health plan: (i) the statutes and regulations requiring contraceptive coverage to the extent such coverage requires the provision of products or services CNS and HCC believe to be abortifacients, or related counseling; (ii) the accommodation as last amended by regulation dated August 27, 2014, or (iii) any attendant penalties, fines or assessments for noncompliance with the aforementioned statutes and regulations from December 30, 2013 until termination of this injunction; and
(b) requiring the defendants, their employees, agents and successors in office to
3

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provide CNS and HCC with an exemption from compliance with (i) the statutory and regulatory requirements of the contraceptive mandate, to the extent such coverage requires the provision of products or services CNS and HCC believe to be abortifacients, or related counseling; (ii) the accommodation as last amended by regulation dated August 27, 2014, and (iii) any requirements to pay any attendant penalties, fines or assessments for noncompliance with the aforementioned statutes and regulations from December 30, 2013, until termination of this injunction; (2) that the Court enter a declaratory judgment declaring that the contraceptive mandate in the Affordable Care Act and implementing regulations and the accommodation as augmented on August 27, 2014, violate the rights of CNS and HCC pursuant to the Religious Freedom Restoration Act, and that CNS and HCC are not subject to any fines, already accrued or imposed in the future, for their non-compliance with such laws; (3) Award CNS and HCC the costs of this action, reasonable attorneys’ fees, expert fees and expenses pursuant to 42 U.S.C. 1988, and as otherwise provided by law; and (4) Grant such other and further relief as the Court shall deem proper and just.
4

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Respectfully submitted,
OTTSEN, LEGGAT & BELZ, L.C.
/s/ Timothy Belz_____________________ Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 112 South Hanley, Suite 200 St. Louis, MO 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@olblaw.com jmbelz@olblaw.com
Attorneys for Plaintiffs CNS International Ministries, Inc. and Heartland Christian College

CERTIFICATE OF SERVICE

I hereby certify that on November 17, 2017, I caused a true and correct copy of this filing

to be served on counsel by means of the Court’s ECF system.

/s/Timothy Belz

________________

5

 
 Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 1 of 124 PageID #: 1944

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

MOTION OF APPELLEES FOR ATTORNEY FEES AND EXPENSES

Appellate Case: 14-1507 Page: 1 Date Filed: 112/065/2017 Entry ID: 456907624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 2 of 124 PageID #: 1945
TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................. iii INTRODUCTION .............................................................................................. 1 DISCUSSION .................................................................................................... 2
I. Lodestar Methodology and Factors .......................................................... 2 A. Hours Reasonably Expended ............................................................. 3 1. District Court Proceedings ............................................................ 5 2. Before the Eighth Circuit .............................................................. 6 3. Before the Supreme Court ............................................................. 8 4. Before the Eighth Circuit on Remand ........................................... 10 B. Reasonable Rates ............................................................................... 12 1. The Requested Rates For Movants’ Attorneys Were Approved as Reasonable in this Case Two Years Ago ................ 13 2. Missouri Lawyers Weekly “Billing Rates” .................................. 14 3. Missouri Cases .............................................................................. 14 4. The Laffey Matrixes and Locality Pay Rates ............................... 17 a. The United States Attorney’s Office’s Laffey Matrix ............. 18 b. The LSI-Adjusted Laffey Matrix ............................................ 20 5. Attorney Qualifications ................................................................ 20 6. Supporting Declarations .............................................................. 21
II. Lodestar Calculation .............................................................................. 22 i
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III. Expenses ................................................................................................ 22 CONCLUSION ................................................................................................ 23
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 4 of 124 PageID #: 1947
TABLE OF AUTHORITIES Cases Albright v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist.,
4:11CV01691 AGF, 2013 WL 4855304 (E.D. Mo. Sept. 11, 2013) ............. 16 Betton v. St. Louis County, 4:05CV01455 JCH, 2010 WL 2025333
(E.D. Mo. May 19, 2010) .............................................................................. 17 Betton v. St. Louis County, Mo., 405 Fed. Appx. 101 (8th Cir. 2010) ............... 17 Bishop v. Comm. on Prof’l Ethics & Conduct of Iowa State Bar Ass’n,
686 F.2d 1278 (8th Cir. 1982) ....................................................................... 6 Blanchard v. Bergeron, 489 U.S. 87 (1989) ....................................................... 1 Boehner v. McDermott, 541 F. Supp. 2d 310 (D.D.C. 2008) ............................ 10 Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health &
Human Res., 532 U.S. 598 (2001) ................................................................ 6 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) ........................... 7 Buzzanga v. Life Ins. Co. of N. Am., 4:09-CV-1353 CEJ, 2013 WL 784632
(E.D. Mo. Mar. 1, 2013) .............................................................................. 14 Casey v. City of Cabool, 12 F.3d 799 (8th Cir. 1993) ................................ 3, 4, 12 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) ............................. 3 Dunkin Donuts Franchising LLC v. Sai Food Hospitality, LLC,
4:11CV01484 AGF, 2014 WL 2009106 (E.D. Mo. May 16, 2014) ............. 18 Easley v. Empire Inc., 757 F.2d 923 (8th Cir. 1985) .......................................... 6 Eckermann v. Colvin, 4:13-CV-04002-SLD, 2014 WL 4899624
(C.D. Ill. Sept. 29, 2014) ............................................................................. 20
iii
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Executive Affiliates, Inc. v. AAF-McQuay, Inc., 4:12-CV-175 CEJ, 2013 WL 6571595 (E.D. Mo. Dec. 13, 2013) .............................................. 16
Fox v. Vice, 563 U.S. 826 (2011) ....................................................................... 3 Gregory v. United States, 110 Fed. Cl. 400 (2013) ........................................... 16 Hanig v. Lee, 415 F.3d 822 (8th Cir. 2005) ....................................................... 2 Hasbrouck v. Texaco, Inc., 879 F.2d 632 (9th Cir.1989) ................................. 10 Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991) .................................. 13 Hensley v. Eckerhart, 461 U.S. 424 (1983) ..................................................... 2, 4 Holmes v. Slay, 4:12-CV-2333 HEA, 2017 WL 994473
(E.D. Mo. Mar. 15, 2017) ............................................................................. 14 Howe v. City of Akron, 17 F. Supp. 3d 690
(N.D. Ohio Apr. 8, 2014) ............................................................................. 20 Hunter Eng’g Co. v. Hennessy Indus., Inc., 4:08 CV 465 DDN,
2010 WL 2628336 (E.D. Mo. June 25, 2010) ............................................. 17 IMS Health Corp. v. Schneider, 901 F. Supp. 2d 172 (D. Me. 2012) .............. 19 Jorstad v. IDS Realty Trust, 643 F.2d 1305 (8th Cir. 1981) ............................ 11 LC Corp., LLC v. Valley Beef, LLC, 17-1146, 2017 WL 3200323
(8th Cir. Mar. 9, 2017) ................................................................................ 15 LC Franchisor, LLC v. Valley Beef, LLC, 4:15-CV-00383-JCH,
2016 WL 7405841 (E.D. Mo. Dec. 22, 2016) ............................................. 15 Maher v. Barton, 4:13-CV-2260 CEJ, 2014 WL 1316936
(E.D. Mo. Apr. 2, 2014) .............................................................................. 16 McDonald v. Armontrout, 860 F.2d 1456 (8th Cir. 1988) ................................ 12 Moore v. City of Des Moines, 766 F.2d 343 (8th Cir. 1988) ............................ 12
iv
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Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319 (D.C. Cir. 1982) ........................................................................................... 10
Neufeld v. Searle Laboratories, 884 F.2d 335 (8th Cir. 1989) ......................... 22 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) ...................... 3 Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219
(4th Cir. 2009) .............................................................................................. 20 Pennsylvania v. Delaware Valley Citizens Council for Clean Air,
478 U.S. 546 (1986) ..................................................................................... 2 Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) ................................... 1, 3 Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996) ...................................... 22 Planned Parenthood Great Plains v. Williams, 863 F.3d 1008
(8th Cir. 2017) ............................................................................................... 6 Planned Parenthood of Kansas & Mid-Missouri, Inc. v. Lyskowski,
2:15-CV-04273-NKL, 2016 WL 4083484 (W.D. Mo. Aug. 1, 2016) .......... 15 Riverside v. Rivera, 477 U.S. 561 (1986) ............................................................ 3 S.M. v. Lincoln County, 4:12CV02276 PLC, 2016 WL 6441587
(E.D. Mo. Nov. 1, 2016) .............................................................................. 15 Sellers v. Peters, 624 F. Supp. 2d 1064 (E.D. Mo. 2008) .................................. 11 Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Services,
2:12 CV 92 DDN, 2015 WL 3773426 (E.D. Mo. June 17, 2015) ............ 12, 13 Snider v. City of Cape Giradeau, 752 F.3d 1149 (8th Cir. 2014) ...................... 13 SSM Managed Care Org., L.L.C. v. Comprehensive Behavioral Care, Inc.,
4:12-CV-2386 CAS, 2014 WL 1389581 (E.D. Mo. Apr. 9, 2014) .............. 15
v
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Thornton v. Mainline Communications, LLC, 4:12-CV-00479 SNLJ, 2016 WL 687844 (E.D. Mo. Feb. 19, 2016) ................................................ 15
Tussey v. ABB, Inc., 06-04305-CV-C-NKL, 2012 WL 5386033 (W.D. Mo. Nov. 2, 2012) ............................................................................. 17
U.S. ex rel. Peterson v. Sanborn Map Co., Inc., 4:11CV000902 AGF, 2014 WL 2815592 (E.D. Mo. June 23, 2014) .............................................. 18
Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014) .............................................. 7 White v. McKinley, 05-0203-CV-W-NKL, 2009 WL 813372
(W.D. Mo. Mar. 26, 2009) ........................................................... 13, 17, 18, 19 Zubik v. Burwell, 136 S. Ct. 1557 (2016) ........................................................... 11
Statutes 42 U.S.C. 1988 ........................................................................................... 1, 6, 17
Other Authorities “Billing Rates 2017,” Missouri Lawyers Weekly ............................................. 14 Executive Order 13715, “Adjustments of Certain Rates of Pay” ...................... 19 LSI-Adjusted Laffey Matrix .............................................................................. 20 S. Rep. No. 94-1011 (1976) ............................................................................... 1 USAO Laffey Matrix .............................................................................. 18, 19, 20
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INTRODUCTION Plaintiffs-Appellees CNS International Ministries (CNS) and Heartland Christian College (HCC) (collectively, Movants) are the prevailing parties in this appeal and move for an award of attorney fees and expenses pursuant to 42 U.S.C. 1988. Congress enacted 42 U.S.C. 1988 in order to ensure that federal rights are adequately enforced. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010). Section 1988 provides for recovery of attorney fees in actions to enforce the Religious Freedom Restoration Act (RFRA). 42 U.S.C. 1988(b). Counsel for a prevailing party under § 1988 “should be paid, as is traditional with attorneys compensated by a fee paying client, ‘for all time reasonably expended on a matter.’” Blanchard v. Bergeron, 489 U.S. 87, 91 (1989) (citing S. Rep. No. 941011, p. 6 (1976) (legislative history of § 1988)). This was not an ordinary case. First, this Court’s September 17, 2015 opinion created a circuit split; the seven other courts of appeals to address the issue ruled against the religious claimants. This split gave all the nonprofit challengers to the contraceptive mandate the foothold they needed with the Supreme Court, which granted certiorari in their cases several weeks after this Court’s decision. Second, as the parties were preparing for the December 2014 oral argument in this case, they had to change course and file additional “supplemental” briefs because
1
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of regulatory changes to the “accommodation” that had resulted in an “augmented accommodation” in the summer of 2014. Third, in addition to the changing regulatory landscape, relevant court decisions were rapidly handed down causing the parties to provide many 28(j) letters and responses while the Court was deliberating. Finally, Movants filed two briefs with the Supreme Court: (1) a response to the government’s petition for writ of certiorari in this case; and (2) an amicus brief in a related case, Zubik v. Burwell, Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 and 15-191 (Sup. Ct.).
Given the unique success achieved, and for the reasons more fully explained below, Movants’ attorneys are now entitled under applicable law to recover their expenses and the reasonable lodestar for the services they provided. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
DISCUSSION I. Lodestar Methodology and Factors The starting point for determining a reasonable attorney fee is the “lodestar” calculation: that is, the number of hours reasonably expended multiplied by a reasonable hourly rate. Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005). The “resulting product is presumed to be the minimum reasonable fee to which counsel is entitled.” Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986) (emphasis in original). Adjustments to the lodestar are
2
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appropriate only for a limited number of reasons and in “exceptional cases” and the burden of proving an adjustment is to be borne by the party seeking the adjustment. Perdue, 559 U.S. at 552, 554. The lodestar “presumption is a ‘strong’ one.” Id. at 552.
“The primary purpose of this formulation is to promote diffuse private enforcement of civil rights law by allowing the citizenry to monitor rights violations at their source, while imposing the costs of rights violations on the violators.” Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993). As the Supreme Court has explained:
When a plaintiff succeeds in remedying a civil rights violation, we have stated, he serves “as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.” He therefore “should ordinarily recover an attorney’s fee” from the defendant—the party whose misconduct created the need for legal action. Fee-shifting in such a case at once reimburses a plaintiff for “what it cos[t][him] to vindicate [civil] rights,” and holds to account “a violator of federal law.” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968), Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416, 418 (1978), and Riverside v. Rivera, 477 U.S. 561, 577-78 (1986)).
A. Hours Reasonably Expended Congress intended that “[i]n computing the fee, counsel for prevailing parties should be paid, as is traditional for attorneys compensated by a fee-paying
3
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client, ‘for all time reasonably expended on a matter.’” Casey, 12 F.3d at 805. The hours devoted to the litigation include all work on all matters involving the “common core of facts” and work “based on related legal theories.” Hensley v. Eckerhart, 461 U.S. 424, 433, 435 (1983). As the Supreme Court recognized, “[m]uch of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.” Id. at 435. The “result is what matters,” even if “the plaintiff failed to prevail on every contention.” Id. at 435.
Movants used primarily two lawyers in the prosecution of this case, Timothy Belz and Matthew Belz of Ottsen, Leggat & Belz, L.C. Tim Belz, a partner, spent 625.5 hours on the case and Matt Belz, an associate for some of the case but a partner since late 2015, spent 377.3 hours on the case. Carl H. Esbeck, a professor at the University of Missouri School of Law, spent 71.8 hours on the case. Detailed reports, first for Tim Belz and Matt Belz and then for Professor Esbeck, are attached as Exhibit 1. A spreadsheet breakdown of the hours worked by each attorney during the different stages of the litigation is attached as Exhibit 2.
Both Movants have prevailed in this case against every defendant and have, since their preliminary injunction on December 30, 2013, obtained the relief they have sought along the way.
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The following four subsections are summaries of the work done by Movants’ attorneys at each of the main stages in the litigation.
1. District Court Proceedings1 Movants’ attorneys worked 214.8 hours at the district court prior to the government’s appeal. Movants’ attorneys’ initial work involved researching their claims and the quickly evolving legal landscape, amending their complaint, and joining the nonprofit parties to the case. (The case previously involved related for-profit entities challenging the contraceptive mandate.) Movants’ attorneys then began working on their motion for a preliminary injunction, the 44-page memorandum in support, supporting declarations, and related research. This prompted a 30-page brief from the government in opposition to Movants’ motion for injunctive relief, as well as an amicus brief from the American Civil Liberties Union. Doc. 68; Doc. 74. Movants then filed a 19-page reply brief on December 25, 2013. Doc. 78. During the last days of December, 2013, Movants and the government also filed supplemental authorities, notifying the court of related decisions that were
1 Movants are unsure if this Court will decide this subsection of the motion, as it applies to fees and expenses before the district court. But even if this Court does not decide fees and expenses before the district court, the information contained in this subsection provides context.
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issuing in courts around the country. The end of the year was particularly active and important because many insurance plan years end with the calendar year.
The district court entered a preliminary injunction in favor of Movants on December 30, 2013, and Movants have had an abortifacient-free insurance plan since that date, despite contrary regulations. Doc. 84. That relief obtained by the Movants, which “the focus should be on,” is “real.” Easley v. Empire Inc., 757 F.2d 923, 931-32 (8th Cir. 1985); Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human Res., 532 U.S. 598, n.13 (2001).
The preliminary injunction has never been disturbed, making Movants prevailing parties2 under § 1988. Planned Parenthood Great Plains v. Williams, 863 F.3d 1008, 1011 (8th Cir. 2017) (citing Bishop v. Comm. on Prof’l Ethics & Conduct of Iowa State Bar Ass’n, 686 F.2d 1278, 1290 (8th Cir. 1982)).
2. Before the Eighth Circuit In March of 2014, the government filed its appeal and on May 22, 2014, the government filed a 41-page Appellants’ Brief. Several amicus briefs were filed shortly thereafter in support of the government’s position, including those by the American Civil Liberties Union, NARAL Pro-Choice America and Planned Parenthood of the St. Louis Region and Southwest Missouri.
2 Movants intend to further prevail in the district court, to which the case has been remanded, by obtaining the declaratory and permanent injunctive relief prayed for in their complaint.
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On June 30, 2014, the relevant controlling authority was clarified dramatically when the Supreme Court handed down its opinion in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Less than a month later, the Supreme Court decided that a nonprofit college did not have to follow portions of the “accommodation” that set forth the means by which it was to notify the Government of its objection to providing contraceptive coverage to employees. Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014).
On July 22, 2014, Movants CNS and HCC filed a 68-page Appellees’ Brief and Addendum. Movants’ attorneys spent 251.8 hours on the initial briefing process before this Court.
After the parties filed their initial briefs, the contraceptive mandate began an evolution that continued until as recently as October 6, 2017. For nonprofits, there was originally a “temporary safe harbor,” and then an “accommodation,” and then an “augmented accommodation.” Part of this evolution occurred before oral argument in the appeal in this case, and so in November 2014, the government and Movants filed “supplemental” briefs, each of which was 37 pages long, detailing and arguing the effects of the regulatory changes on the lawsuit. Movants’ attorneys spent 93.9 hours on their supplemental briefing and other things during this timeframe.
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During what was roughly a month before oral argument, Movants reviewed a multitude of related decisions, monitored oral arguments that were taking place in related cases, held a moot court, and otherwise prepared for oral argument. Oral argument occurred on December 10, 2014. Movants’ attorneys spent 102.9 hours on this portion of the appeal.
In the months following oral argument, but before this Court’s opinion in September 2015, CNS and HCC submitted three Rule 28(j) letters. They also responded to seven of the eight 28(j) letters filed by the government. This was an active period of appellate legislation in the contraceptive mandate cases as many of the appeals of the December, 2013 district court judgments were being decided.
On September 17, 2015, this Court affirmed the district court’s decision in favor of CNS and HCC. The other seven appellate courts to rule on the matter ruled against the religious claimants. Between oral argument and when the Court’s decision was handed down, Movants’ attorneys spent 123.3 hours on the case.
In total, Plaintiff’s attorneys worked 571.9 hours at this Court prior to beginning work at the Supreme Court.
3. Before the Supreme Court This Court issued its opinion on September 17, 2015, creating a split in the circuits. The Supreme Court granted the other religious claimants’ petitions for certiorari in all the other cases on November 6, 2015. In the case at bar, the
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government waited until the 89th day (December 15, 2015) to file its petition for a writ of certiorari. This made consolidation with the existing cases unlikely and, because the cases before the Supreme Court were already being briefed, this effectively thwarted any possibility that CNS and HCC would be able to defend this Court’s decision in their favor before the Supreme Court. On January 28, 2016, CNS and HCC filed a response to the government’s certiorari petition. Exhibit 3. Movants’ attorneys worked 43.6 hours during this timeframe.
On January 8, 2016, CNS and HCC also filed an amicus brief in the related and aforementioned Supreme Court case, Zubik v. Burwell, Nos. 14-1418, 141453, 14-1505, 15-35, 15-105, 15-119 and 15-191 (Sup. Ct.). Exhibit 4. The Zubik plaintiffs were similarly situated to CNS and HCC, and if the Supreme Court had issued a substantive opinion, it would have likely ended the case at bar one way or the other. The amicus brief detailed the many changes—about eight—made by the government to make the contraceptive mandate less restrictive to religious freedom, despite prior government claims in each instance that the then-current iteration of the mandate was the least restrictive. This repeated moving of the goal posts by the government goes a long way toward explaining why this case was as time-consuming as it was. Movants’ attorneys spent 63.8 hours working on the amicus brief and other items during this period.
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Time spent working on amicus briefs should be awarded if it is expended “in pursuit of a successful resolution in th[e] matter and a reasonably prudent attorney would have done the same . . .” Boehner v. McDermott, 541 F. Supp. 2d 310, 320 (D.D.C. 2008); Hasbrouck v. Texaco, Inc., 879 F.2d 632 (9th Cir.1989) (holding, in antitrust context, award of attorney fees for amicus work in a related case was reasonable because a reasonable and prudent lawyer would have undertaken such work to advance or protect his client’s interest); see also Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1335 (D.C. Cir. 1982) (“Compensable time should not be limited to hours expended within the four corners of the litigation”; instead, time is compensable as long as it was “expended in pursuit of a successful resolution of the case in which fees are being claimed.”).
On June 16, 2016, the Supreme Court vacated every other circuit decision in the related cases, remanding for further proceedings. At the same time, it granted certiorari in this case, vacated this Court’s decision, and remanded for further proceedings.
Movants’ attorneys worked a total of 107.4 hours before the Supreme Court. 4. Before the Eighth Circuit on Remand
The Supreme Court’s decision to vacate the circuits’ decisions was accompanied by a mandate that the parties find an alternative solution to the
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problematic “augmented accommodation” that was in place. Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016).
For more than a year starting on July 21, 2016, the government filed status reports, eight in total. CNS and HCC responded to some of these.
During this time, and as part of what they believed to be their responsibility under Zubik, CNS and HCC filed with the Centers for Medicare & Medicaid Services a response to the government’s Request For Information (RFI) regarding possible ways the government could respect religious objections while still furthering its stated interests.
Also, during this time, various ideas for settlement were discussed among the many attorneys for the religious claimants and the government.
On October 6, 2017, the Government issued an interim final rule that indeed, at last, respected religious objections to the contraceptive mandate. On the same day, the Government dismissed its appeal in the case at bar.
Finally, during settlement negotiations and on this motion for fees, Tim Belz has reasonably expended 51.7 hours and Matt Belz has reasonably expended 24.6 hours. Time reasonably spent on an application for fees and expenses is recoverable. Sellers v. Peters, 624 F. Supp. 2d 1064, 1068 (E.D. Mo. 2008) (citing Jorstad v. IDS Realty Trust, 643 F.2d 1305 (8th Cir. 1981)). Movants’ attorneys were able to use some of the work they did on a previous fee application, relating
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only to the for-profit portion of this case, in order to minimize time spent. See Doc. 118, Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Services, 2:12 CV 92 DDN (E.D. Mo.).
Movants’ attorneys have worked a total of 180.5 hours in the nearly 18 months this case has been on remand to this Court.
*** The above descriptions do not include the many meetings, phone calls and hours spent on research and routine motions. The attached time reports contain more detailed explanations of the time spent on this case by Movants’ attorneys.
B. Reasonable Rates In setting reasonable attorney fees, the touchstone is whether the rates are in line with those prevailing in the community for comparable services by lawyers of reasonably comparable skill, experience, and reputation. See Moore v. City of Des Moines, 766 F.2d 343, 346 (8th Cir. 1988). “Community” should be given an expansive reading, and other parts of the state, like Kansas City, help define the relevant market. See McDonald v. Armontrout, 860 F.2d 1456, 1459 (8th Cir. 1988). In a complex matter, the relevant market “may extend beyond the local geographic community” and include the national market or a market for a particular legal specialization. Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993).
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The Eighth Circuit and courts within it have affirmed approval of higher

than usual hourly rates based on the specialized skill of counsel, particularly in the

area of civil rights. White v. McKinley, 05-0203-CV-W-NKL, 2009 WL 813372, at

*8 (W.D. Mo. Mar. 26, 2009) (citing Hendrickson v. Branstad, 934 F.2d 158, 164

(8th Cir. 1991) (affirming rate based on that of comparable nationally-prominent

federal civil rights counsel, rather than local counsel, because of attorney’s

expertise in civil rights law)); Snider v. City of Cape Giradeau, 752 F.3d 1149,

1160 (8th Cir. 2014) (discussing need to attract experienced counsel, including in

civil rights cases).

Movants’ attorneys seek the following rates:

Attorney Tim Belz Carl Esbeck Matt Belz

Rate $450 $450 $250

1. The Requested Rates For Movants’ Attorneys Were Approved as Reasonable in this Case Two Years Ago.

The rates requested for Movants’ attorneys in this case were approved and

expressly deemed reasonable by Judge David Noce in this case in 2015, when the

associated for-profit plaintiffs successfully challenged the contraceptive mandate.

Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Services, 2:12 CV 92

DDN, 2015 WL 3773426, at *2-3 (E.D. Mo. June 17, 2015) (“the court finds that

an hourly rate of $450 is reasonable for Timothy Belz, Esq.”; “the court finds that

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an hourly rate of $250 is reasonable for J. Matthew Belz, Esq.”; “the court finds Professor Esbeck substantially contributed to the lawsuit and $450.00 per hour is a reasonable rate for his services as an experienced, specialized attorney and professor.”). The government did not challenge these rates.
2. Missouri Lawyers Weekly “Billing Rates” District courts often cite Missouri Lawyers Weekly’s annual “Billing Rates” feature as helpful in determining reasonable rates. See e.g. Buzzanga v. Life Ins. Co. of N. Am., 4:09-CV-1353 CEJ, 2013 WL 784632, at *1 (E.D. Mo. Mar. 1, 2013). For St. Louis in 2017, the issue listed the average partner rate at $504 per hour and the average associate rate at $269 per hour. See “Billing Rates 2017,” Missouri Lawyers Weekly, http://molawyersmedia.com/2017/08/07/st-louisaverages-411-kansas-city-373/ (last visited Oct. 18, 2017).
3. Missouri Cases There are several Missouri district court cases that support the rates proposed by the Movants (in addition to the aforementioned attorney fees decision by Judge Noce in the for-profit portion of this case). The cases below start with the most recent: • In Holmes v. Slay, 4:12-CV-2333 HEA, 2017 WL 994473 (E.D. Mo. Mar. 15, 2017), rates of $250, $330, $350, $400 and $450 per hour were identified as reasonable in a civil rights case. Id. at *4.
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• In LC Franchisor, LLC v. Valley Beef, LLC, 4:15-CV-00383-JCH, 2016 WL 7405841 (E.D. Mo. Dec. 22, 2016), appeal dismissed sub nom. LC Corp., LLC v. Valley Beef, LLC, 17-1146, 2017 WL 3200323 (8th Cir. Mar. 9, 2017), rates between $355 and $477 per hour were approved for two St. Louis attorneys. Id. at *2.
• In S.M. v. Lincoln County, 4:12CV02276 PLC, 2016 WL 6441587 (E.D. Mo. Nov. 1, 2016), rates of $350, $375 and $450 per hour were identified as reasonable in a civil rights case. Id. at *9.
• In Planned Parenthood of Kansas & Mid-Missouri, Inc. v. Lyskowski, 2:15CV-04273-NKL, 2016 WL 4083484 (W.D. Mo. Aug. 1, 2016), the court awarded the plaintiff $156,630.68 in fees and expenses. Id. at *1. The opinion did not list the attorneys’ rates, but the pleadings show that that they were between $315 and $500 per hour for each of the five attorneys, two of whom were associates. Id. at Doc. 85, p. 7; Doc. 85-1.
• In Thornton v. Mainline Communications, LLC, 4:12-CV-00479 SNLJ, 2016 WL 687844 (E.D. Mo. Feb. 19, 2016), the court found a law school classmate of Matthew Belz, who is claiming $250 per hour in this case, to have a reasonable hourly rate of $250. Id. at *2.
• In SSM Managed Care Org., L.L.C. v. Comprehensive Behavioral Care, Inc., 4:12-CV-2386 CAS, 2014 WL 1389581 (E.D. Mo. Apr. 9, 2014), the 15
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court found that “the billing rates for litigation partners in St. Louis firms vary from a high of $495 to $550/hour to a low of $230 to $295/hour,” and that rates of $235 to $247.50 for a litigation associate were “reasonable (if not low) compared to litigation associates in the St. Louis area firms.” Id. at *3. • In Maher v. Barton, 4:13-CV-2260 CEJ, 2014 WL 1316936 (E.D. Mo. Apr. 2, 2014), the court found another law school classmate of Matthew Belz to have a reasonable hourly rate of $280. Id. at *2. • In Executive Affiliates, Inc. v. AAF-McQuay, Inc., 4:12-CV-175 CEJ, 2013 WL 6571595 (E.D. Mo. Dec. 13, 2013), the court found $450 to be a reasonable partner rate and $300 to be a reasonable associate rate. Id. at *3. • In Albright v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., 4:11CV01691 AGF, 2013 WL 4855304 (E.D. Mo. Sept. 11, 2013), the court found a lead counsel rate of $500 to be reasonable. Id. at *8. The other attorneys’ rates were apparently between $245 and $300. Id. • In Gregory v. United States, 110 Fed. Cl. 400 (2013), the United States Court of Federal Claims analyzed Kansas City rates and found “$475 per hour for partners” and “$275 per hour for associates” to be “not only . . . reasonable, [but] average or below average for the Kansas City market.” Id. at 406.
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• In Tussey v. ABB, Inc., 06-04305-CV-C-NKL, 2012 WL 5386033 (W.D. Mo. Nov. 2, 2012) vacated and remanded (on other grounds), 746 F.3d 327 (8th Cir. 2014), the court found a “blended hourly rate of $514.60” to be reasonable and applied the rate uniformly to plaintiffs’ attorneys, which had various levels of experience. Id. at *4.
• In Hunter Eng’g Co. v. Hennessy Indus., Inc., 4:08 CV 465 DDN, 2010 WL 2628336 (E.D. Mo. June 25, 2010), the Court agreed to hourly attorney rates from $300 to $440. Id. at *3.
• In Betton v. St. Louis County, 4:05CV01455 JCH, 2010 WL 2025333 (E.D. Mo. May 19, 2010) aff’d sub nom. Betton v. St. Louis County, Mo., 405 Fed. Appx. 101 (8th Cir. 2010), the court found rates of $400 and $450 to be reasonable.
• In White v. McKinley, 05-0203-CV-W-NKL, 2009 WL 813372 (W.D. Mo. Mar. 26, 2009), rates of $250 per hour, $395 per hour and $450 per hour were identified as reasonable. Id. at *7. 4. The Laffey Matrixes and Locality Pay Rates The vast majority of cases involving claims under 42 U.S.C. 1988 are
against state and local officials and governmental entities. One of the ways in which this case is rare is that it involves a claim for fees and expenses under § 1988 against the federal government. Accordingly, it may be appropriate for the
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Court in this case to consider what are known as the Laffey Matrixes, which are commonly used to determine attorney fees in cases against the federal government. There are two Laffey Matrixes: one prepared by the U.S. Attorney’s office for the District of Columbia, the other being the LSI-Adjusted3 Laffey Matrix, which is not prepared by the government.
a. The United States Attorney’s Office’s Laffey Matrix One oft-used version of the Laffey Matrix is “prepared by the Civil Division of the United States Attorney’s Office for the District of Columbia to be used in cases in which a fee-shifting statute permits the prevailing party to recover reasonable attorneys’ fees.” U.S. ex rel. Peterson v. Sanborn Map Co., Inc., 4:11CV000902 AGF, 2014 WL 2815592, at *2 (E.D. Mo. June 23, 2014); Dunkin Donuts Franchising LLC v. Sai Food Hospitality, LLC, 4:11CV01484 AGF, 2014 WL 2009106, at *5 (E.D. Mo. May 16, 2014); White v. McKinley, 05-0203-CV-WNKL, 2009 WL 813372, at *7 (W.D. Mo. Mar. 26, 2009) (allowing attorney rates between $250 and $450 per hour). A current version of the USAO’s Laffey Matrix is attached as Exhibit 5.4 The rate provided by the Justice Department for the most experienced attorneys, those who have 31 or more years of experience, is $568 per hour for the 3 “LSI” stands for “Legal Services Index.” 4 This version was obtained from the Justice Department’s website. See https://www.justice.gov/usao-dc/file/796471/download (last visited Oct. 18, 2017).
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years 2015-16 and $581 per hour for the years 2016-17. Tim Belz and Carl Esbeck have been attorneys for roughly 40 years each. For attorneys with 8-10 years of experience—Matt Belz has nine—the Justice Department provides a rate of $386 per hour for the years 2015-16 and $395 per hour for the years 2016-17.
Those numbers are admittedly tailored for the Washington, D.C. and Baltimore market. Courts in non-Washington jurisdictions have used governmentprovided locality pay differential numbers to make adjustments. This appears to be the approach used in the Western District of Missouri. White, a 2009 case, at *7 (“Even adjusting for locality, the matrix would dictate a rate of $426 per hour for Mr. Kanovitz and Jon Loevy . . .”).
The Washington, D.C. area has a locality pay rate of 24.78%. Executive Order 13715 (Schedule 9).5 The St. Louis area has a locality pay rate of 14.49%. Id. Courts simply subtract the lower rate to determine the reduction, which here would lead to a 10.29% reduction from the Washington, D.C. rates. IMS Health Corp. v. Schneider, 901 F. Supp. 2d 172, 196 n.17 (D. Me. 2012). This results in a $509.55 rate for St. Louis attorneys such as Tim Belz and Carl Esbeck who have 31 or more years of experience using the 2015-16 USAO Laffey figure, and $521.22 using the 2016-17 figure. For Matt Belz, who has nine years of 5 Executive Order 13715, “Adjustments of Certain Rates of Pay,” available at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/payexecutive-order-2016-adjustments-of-certain-rates-of-pay.pdf (last visited Oct. 31, 2017).
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experience, the USAO’s Laffey Matrix rate, adjusted to St. Louis, is $346.28 per hour using the 2015-16 figure and $354.35 using the 2016-17 figure.
b. The LSI-Adjusted Laffey Matrix There is a separate version of the Laffey Matrix, not prepared by the government, which contains higher rates (the “LSI-Adjusted Laffey Matrix”). See http://laffeymatrix.com/see.html (last visited October 18, 2017), cited in Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 229 n.11 (4th Cir. 2009); Eckermann v. Colvin, 4:13-CV-04002-SLD, 2014 WL 4899624, at *2 (C.D. Ill. Sept. 29, 2014); Howe v. City of Akron, 17 F. Supp. 3d 690, 693 n.6 (N.D. Ohio Apr. 8, 2014). However the Laffey Matrix is applied, and whichever one is applied, it supports considerably higher rates than those requested by the Movants’ attorneys even when adjusted for locality.
5. Attorney Qualifications Tim Belz graduated Order of the Coif from the University of Iowa College of Law in 1976 and has specialized in litigation since spending his first five years in the Antitrust Division of the U.S. Department of Justice. See Timothy Belz Declaration and Curriculum Vitae, Exhibit 6. His focus has been on constitutional law cases with a particular emphasis on religious liberty cases. Id. (see representative cases).
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Carl Esbeck graduated from Cornell University School of Law in 1974. After clerking for a year, he was an associate and then partner at a firm where he focused on civil rights and commercial litigation cases. See Esbeck Declaration and Curriculum Vitae, Exhibit 7. He joined the faculty of the University of Missouri School of Law in 1981 and has since been published widely in the area of constitutional law and religious liberty. Id. Now the R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law emeritus, he has taught classes on Constitutional Law, Religious Liberty, Civil Rights, and a Seminar on the Foundations of the American Constitution. Id.
Matt Belz, who became a partner at Ottsen, Leggat & Belz, L.C. in late 2015, was before that an associate at the firm since graduating from the University of Missouri School of Law in 2008. See Matthew Belz Declaration, Exhibit 8. His primary focus has been litigation and he has worked on many § 1983 cases, including authoring dozens of major briefs. He was recently lead counsel in another civil rights case, Powell v. St. Francois County, 4:14-cv-01230 AGF (E.D. Mo.). Id.
6. Supporting Declarations The reasonableness of the requested rates is further demonstrated by the declarations of attorneys Al W. Johnson and Mark (Thor) Hearne II, who attest that the rates requested are within, and indeed lower than, market norms, based on the
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requesting attorneys’ skill and experience. See Declaration of Al W. Johnson

(Exhibit 9) and Mark Hearne (Exhibit 10).

II. Lodestar Calculation

A reasonable fee can be set in this case consistent with established case law

and local rates and practices by multiplying the number of compensable hours by

the hourly rates of Movants’ attorneys as follows:

Attorney Tim Belz Carl Esbeck Matt Belz

Rate $450 $450 $250

Hours 625.5
71.8 377.3

Total $281,475
32,310 94,325 $408,110

III. Expenses

Movants are entitled to recover the expenses incurred in the prosecution of

this case. Recoverable expenses include costs and out-of-pocket expenses of

Movants’ attorneys. Neufeld v. Searle Laboratories, 884 F.2d 335, 342 (8th Cir.

1989); see also Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir. 1996) (a

reasonable attorney fee must include “reasonable out-of-pocket expenses of the

kind normally charged to clients by attorneys.”).

Movants seek only their printing costs for two briefs filed before the

Supreme Court. The first was their amicus brief filed in Zubik v. Burwell, Nos. 14-

1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 and 15-191 (Sup. Ct.) on January

8, 2016. Exhibit 4. The printing costs from Cockle Legal Briefs were $1,011.66.

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The second was Movants’ January 28, 2016 response brief to the government’s petition for writ of certiorari filed in Dept. of Health and Human Services v. CNS Int’l Ministries, 15-775 (Sup. Ct). Exhibit 3. The printing costs for that brief from Becker Gallagher were $742.06. The total in expenses sought by Movants is $1,753.72.
Movants’ attorneys do not seek reimbursement for any mileage or the considerable amount of Pacer or Westlaw usage required by this case.
CONCLUSION For the foregoing reasons, Movants respectfully request that this Court award attorney fees of $408,110 and out-of-pocket expenses of $1,753.72. Respectfully submitted this 6th day of November 2017.
OTTSEN, LEGGAT AND BELZ, L.C.
By: /s/ Timothy Belz Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 112 South Hanley, Second Floor St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@olblaw.com jmbelz@olblaw.com Attorneys for CNS International Ministries, Inc. and Heartland Christian College
23
Appellate Case: 14-1507 Page: 30 Date Filed: 112/065/2017 Entry ID: 456907624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 31 of 124 PageID #: 1974
CERTIFICATE OF COMPLIANCE I hereby certify that the textual portion of the foregoing motion (exclusive of the tables of contents and authorities, certificates of service and compliance, but including footnotes) contains 5,093 words as determined by the word counting feature of Microsoft Word 2011.
/s/ Timothy Belz CERTIFICATE OF SERVICE I hereby certify that on November 6, 2017, I caused a true and correct copy of this filing to be served on counsel by means of the Court’s ECF system.
/s/ Timothy Belz Timothy Belz
24 Appellate Case: 14-1507 Page: 31 Date Filed: 112/065/2017 Entry ID: 456907624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 32 of 124 PageID #: 1975

OTTSEN, LEGGAT & BELZ, L.C.

112 South Hanley, Suite 200

St. Louis, MO 63105-3418

Ph : (314) 726-2800, Fax : 314-863-3821

Time, Expense & Notes Report

Date By 07/09/12 JB 07/01/13 TB 07/05/13 TB 07/06/13 TB
07/08/13 TB
08/28/13 JB
10/28/13 TB
10/29/13 TB 10/30/13 JB
10/31/13 JB 11/02/13 TB 11/05/13 JB 11/06/13 JB 11/07/13 TB
11/07/13 JB 11/08/13 JB 11/14/13 JB 11/14/13 TB 11/19/13 TB
11/19/13 JB 11/21/13 TB 11/22/13 JB 11/27/13 JB 12/02/13 JB 12/03/13 JB 12/04/13 JB 12/05/13 TB
12/06/13 TB 12/07/13 JB 12/07/13 TB 12/08/13 JB 12/08/13 TB
12/09/13 JB
12/09/13 TB
12/10/13 JB

Description :

Hours:

Research re: O'Brien and Archdioceses cases; compare O'Brien petitions

1.00

Review Final Rule for religious nonprofits and research regarding religious nonprofit cases

3.80

Further review of Final Rule for religious nonprofits and research regarding religious nonprofit cases 4.80

Research complaints that were filed on behalf of religious nonprofits; preparation of amended

3.90

complaint

Research regarding religious nonprofit status given passage of Final rule; work on amendment of

5.60

pleadings; two telephone conferences with David Melton, General Counsel for nonprofits

Research re: religious employers/churches and the contraceptive mandate; check status of Willis Bros. 1.00

case in D.C.

Communications with various attorneys regarding status of nonprofit religious cases across country; 4.40

review same

Review research and perform new research regarding "accommodation" cases extant across country 3.80

Work on amended complaint; research re: temporary enforcement safe harbor and religious

4.20

accommodation

Work on amended complaint

3.20

Research latest on "accommodation," etc., for religious nonprofits

3.20

Draft motion for joinder; research re: joinder; research re: amendment to complaint

2.80

Work on memo in support of motion for joinder; related research

5.20

Review and revise motion, brief, and second amended complaint; research regarding arguments against 5.80

the proposed "accommodation"

Revise motion and memo re: joinder of CNSIMI and HCC

0.50

Revise second amended complaint

1.50

Revise complaint and other amendment docs

1.50

Communications with David Melton; review and revise second amended complaint

2.40

Review and revise second amended complaint; motion to file and bring in two more plaintiffs;

2.50

memorandum in support

Finalize second amended documents; file all

1.00

Research; review opinion re: nonprofits from Western District of Pennsylvania

1.50

Review Zubik opinion and briefing

2.50

Work on preliminary injunction brief; related research

6.20

Work on preliminary injunction brief

6.50

Work on preliminary injunction brief

6.60

Work on preliminary injunction brief; review Little Sisters of the Poor briefs and incorporate

6.50

Review and revise draft of 40-page brief in support of motion for TRO and preliminary injunction;

5.80

research regarding same

Review and revise brief in support of TRO and preliminary injunction; research same

3.80

Work on preliminary injunction memo

3.20

Research; review and revise brief in support of TRO and PI

3.60

Draft Sharpe declaration; draft Melton declaration; revise brief

4.00

Research regarding contraceptive accommodation and the regulations that created it; amend motion for 5.00

TRO and PI accordingly; review and revise brief in support

Research re: small employers and ACA fines; review Annex Medical pleadings; draft motion to file

1.50

overlength brief

Review and revise brief in support of TRO and PI; review and revise declarations in consultation with 2.50

Melton

Revise brief; revise declarations

6.50

Exhibit 1
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::312 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 33 of 124 PageID #: 1976

12/10/13 TB Review and revise motion for TRO and PI; supporting brief; declarations for David Melton and Charles 4.50

Sharpe

12/11/13 JB Review/revise all documents; file all

3.80

12/11/13 TB Back and forth with declarants regarding declarations; review and revise brief for TRO and PI; prepare 6.00

for final

12/16/13 TB Review regulations for avenues of relief for CNSIMI and Heartland Christian College; emails with DOJ 2.40

attorney back and forth; telephone conferences with Dave Melton; research regulations

12/17/13 JB File notice of substitution; file joint notice of parties

0.40

12/17/13 TB Several telephone conferences with Kelly in clerk's office regarding substitution of party defendants and 3.70

addition of new plaintiffs; file consents to Magistrate by new plaintiffs; meet with clerk; file notice of

substitution of Secretary Perez at Dept. of Labor; email with opposing counsel; prepare joint

memorandum draft and send to opposing counsel

12/18/13 JB Review government response brief; related research

5.20

12/18/13 TB Review 35-page response brief from Defendants in opposition to our motions for TRO and preliminary 2.10

injunction

12/19/13 JB Begin reply brief; review new accommodation cases

6.50

12/20/13 JB Work on reply brief; review new accommodation decisions

5.50

12/21/13 TB Research; review and revise Reply Brief responding to Gov't brief in opposition to our motion for TRO 4.30

and PI

12/22/13 JB Work on reply brief

6.30

12/22/13 TB Research issues for Reply Brief, including penalties for non-compliance with contraceptive mandate 2.10

12/23/13 TB Research new cases being decided on daily basis; review filings by DOJ; review and revise reply brief 5.50

12/24/13 JB Meeting with J. Sauer and T. Belz

1.00

12/24/13 TB Confer with Matt Belz and John Sauer regarding Notre Dame case and others; discuss strategy; research 7.50

all nine nonprofit cases decided to date; review and revise reply brief

12/25/13 JB Review, revise and finalize reply brief; file same

4.00

12/25/13 TB Review and revise reply brief; research recent cases; review for final

9.00

12/26/13 TB Review Catholic Diocese of Nashville case

0.80

12/27/13 TB Review East Texas Baptist University case; pinpoint pages to bring to judge's attention; file supplemental 1.10

authority notice

12/27/13 JB Draft and file ETBU supplement

0.50

03/25/14 TB Research and communications with attorneys in similar situations; telephone conferences with Dave 2.50

Melton; review Supreme Court argument

03/26/14 TB Research; review Supreme Court proceedings; communications regarding nonprofit strategies with co- 2.10

counsel and other attorneys

03/28/14 TB Review transcript of Supreme Court argument in preparation for briefing in CNSIMI case; discuss with 2.70

similarly-situated attorneys; focus on accommodation issues

05/20/14 TB Telephone conference with local ACLU attorney regarding amicus brief filing

0.30

05/21/14 TB Review Dordt College and Cornerstone cases, which cited Sharpe Holdings, in favor of plaintiffs; discuss 3.60

results with counsel for plaintiffs; review DOJ opening appeal brief in Heartland (Sharpe Holdings) case

05/22/14 TB Review DOJ opening brief; research legal questions; communicate with DOJ and various amici regarding 3.40

consents; communicate with counsel on same side of issue as we are; communicate with co-counsel;

communicate with Melton

05/23/14 TB Communications with government and with lawyers wishing to file amici briefs pro and con; research 2.60

legal issues raised in DOJ brief

05/27/14 TB Review government opening brief in 8th Circuit; research regarding same; communications with

5.50

similarly situated counsel regarding arguments under RFRA; emails back and forth with group wanting to

file amicus on behalf of government; emails with co-counsel Carl Esbeck, con law professor at Missouri

Law School; telephone conference with Dave Melton, corporate counsel for CNS Int'l Ministries and

other Sharpe Holdings plaintiffs; further research

05/28/14 JB Review Government brief in accommodation case

3.00

05/29/14 JB Review Government cases; review Notre Dame decisions; review notes from Esbeck; related research. 4.50

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::323 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 34 of 124 PageID #: 1977

05/29/14 TB Research and prepare responses to Judge Posner arguments used by Government in its brief; review 5.50

ACLU et al. amicus brief; review amicus brief from Paul Weiss law firm

05/30/14 JB Research accommodation cases and current scorecard

5.50

05/30/14 TB Telephone conferences with Dave Melton; office conferences with Matt Belz; all regarding disposing of 5.00

arguments made by the Government in its brief on appeal; research regarding and multiple

communications with other counsel regarding the unique circumstances of being self-insured and

dealing with third party administrators as opposed to outside insurance companies

06/02/14 JB Begin draft of brief

5.00

06/02/14 TB Emails regarding responses to briefs of amici on side of Government; emails with co-counsel regarding 3.50

amici on our side; research issues raised by Government and its amici

06/03/14 JB Work on brief

4.50

06/03/14 TB Review competing standards for preliminary injunctions as between Heartland case (2003) and Planned 3.90

Parenthood case (2008); discuss with counsel; research 8th circuit cases regarding same ("fair chance" v.

"likelihood")

06/04/14 JB Work on brief; research federal registry re: accommodation and TPAs.

5.50

06/04/14 TB Research issues surrounding Notre Dame decision in 7th Circuit and compare to arguments CNSIMI has 3.60

made; communications with counsel in similar cases

06/05/14 JB Work on brief; review briefs and pleadings from Becket Fund and Government in Guiding Souls case. 5.00

06/05/14 TB Research cases recently decided that discuss Notre Dame and other relevant decisions; discuss with co- 5.10

counsel

06/06/14 JB Work on brief; draft and file motion for additional time

5.20

06/06/14 TB Research legal issues raised by Government and its amici; preparation of appellees' main brief

3.30

06/09/14 JB Work on brief; research re: other accommodation cases and briefs

4.20

06/10/14 JB Work on brief

3.50

06/12/14 JB Work on brief; review Sixth and Seventh Circuit decisions

5.00

06/19/14 TB Review analysis by Carl Esbeck; email to him and Matt; review 6th Cir. opinion

1.00

06/20/14 TB Telephone conferences and emails with counsel regarding content of brief

1.00

06/30/14 TB Review Hobby Lobby decision; telephone conferences with Dave Melton, Sam Lee, Carl Esbeck; emails 7.40

with them and similarly-situated counsel; strategize as to how to proceed in Heartland (CNS Int'l

Ministries) religious nonprofit case; review Hobby Lobby Supreme Court decision in detail

07/01/14 TB Telephone conference with Carl Esbeck regarding strategies for proceeding with brief in 8th Circuit and 0.80

what to argue in light of Hobby Lobby

07/02/14 JB Review Hobby Lobby decision; research recent nonprofit decisions; work on brief

5.50

07/02/14 TB Telephone conference with Dave Melton; telephone conference with Matt Belz; all re: appellee brief in 1.00

8th Circuit

07/03/14 JB Work on brief

4.80

07/03/14 TB Research regarding government's accommodation for religious nonprofits; research regarding required 5.50

certification by government; preparation of appellee brief in 8th circuit

07/04/14 TB Thorough review of Government's appellant's brief, in view of the recent Hobby Lobby case and

6.90

yesterday's Wheaton College order; preparation of appellee's brief

07/05/14 TB Research for appellee's brief, especially regarding ERISA requirements; preparation of appellee's brief 5.00

07/06/14 JB Work on brief; related research

2.00

07/06/14 TB Research legal and factual issues; preparation of appellee brief for 8th Circuit

7.50

07/07/14 JB Work on brief

4.00

07/07/14 TB Telephone conference with Dave Melton; telephone conference with Carl Esbeck; phone conference 6.50

with Charles Sharpe; research legal issues in view of Hobby Lobby decision; prepare appellee's brief

07/08/14 TB Research for and review and revise appellee brief in 8th Circuit

8.50

07/09/14 JB Work on brief; related research

4.00

07/09/14 TB Prepare, review and revise appellee brief in 8th Circuit

7.80

07/10/14 JB Work on brief; research re: nonprofit cases

4.50

07/11/14 TB Review and revise appellee brief for 8th Circuit; research regarding same

8.00

07/12/14 TB Research and review and revise appellee brief for 8th Circuit

5.50

07/14/14 TB Research ERISA arguments and discuss with Melton

1.60

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::334 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 35 of 124 PageID #: 1978

07/15/14 JB Meeting with T. Belz re: revisions; work on brief/research

5.00

07/15/14 TB Review and revise using Esbeck edits; confer with Matt Belz

2.00

07/16/14 TB Research regarding ERISA requirements as applied to contraceptive mandate; telephone conference 1.40

with Dave Melton and Matt Belz to go over Melton's changes in appellee brief in 8th Circuit; telephone

call with Melton regarding ERISA findings

07/20/14 JB Work on brief; related research

4.00

07/20/14 TB Review and revise appellee brief in 8th Circuit; discuss changes with Matt Belz

5.50

07/21/14 JB Work on brief, including tables and addendum; file all

4.00

07/21/14 TB Review and revise appellee brief in 8th Circuit; prepare for final; cite checks; proofread; make changes 7.50

07/22/14 TB Telephone call from clerk at 8th Circuit regarding fact that only two of several plaintiffs are appellees; 2.80

tried to clear up her confusion; she said she would take it up with the clerk; review and revise certificate

of service and communicate with printer; prepare for printer and send instructions regarding printing

paper copies of briefs; communicate with co-counsel; review of supplemental briefs filed in the 10th

Circuit Court of Appeals today

07/23/14 TB Communications with attorneys similarly situated regarding next move by DOJ on religious nonprofit 2.50

"accommodation" changes as promised by DOJ; research regarding same; communications with DOJ

attorneys regarding their request for extra time to reply, telling them we would not oppose

07/24/14 TB Review appellee brief paper versions back from printer and file same

1.00

08/14/14 JB Research re: Section 1988 and recovery of fees; review statuses of several related cases

3.00

08/14/14 JB Correspondence with Justice Department

0.20

08/18/14 TB Telephone conference with Patrick Nemeroff at USDOJ regarding his request for changes in briefing 2.20

schedule due to new IFR issuing later this week from Government; telephone conference with Dave

Melton regarding same; telephone call to Nemeroff; review draft of joint motion proposed by DOJ; send

to co-counsel

08/19/14 TB Email with DOJ; review email from client; confer with client; edit and return proposed joint motion

1.50

prepared by USDOJ

08/20/14 TB Telephone conference with USDOJ attorney regarding briefing schedule given new IFR coming out;

1.90

review file; review Marty Lederman blog regarding same; confer with Carl Esbeck regarding same;

research regarding responses of similarly situated religious nonprofits in 10th Circuit; confer with co-

counsel

08/24/14 TB Research new IFR from government; compare to Hobby Lobby and discuss, over last three days, our 4.50

options with counsel similarly situated

08/28/14 TB Confer with counsel in cases similarly situated, including counsel for Dordt College, about strategies 1.80

09/08/14 TB Telephone conference with Patrick Nemeroff of USDOJ Appellate Staff, regarding scheduling of post-new 0.30

accommodation briefing; review file

09/15/14 TB Communications, including email and telephonic, with USDOJ regarding briefing at 8th Circuit level; 1.70

telephone conference with Dave Melton regarding same; communication with Greg Baylor, representing

Dordt College regarding same

09/17/14 TB Back and forth with USDOJ regarding joint motion at USDOJ's request to change briefing schedule before 2.90

the 8th Circuit; confer with client and co-counsel; review file and research legal issues

10/21/14 JB Review Dordt college brief from Government; review cases and pleadings in case

3.00

10/21/14 TB Research regarding 8th Circuit brief

3.20

10/22/14 JB Review augmented accommodation; reivew Dordt College brief; review Little Sisters briefing

5.00

10/22/14 TB Research for and preparation of 8th Circuit appellee brief; communications with counsel for Dordt

3.20

College to coordinate arguments

10/23/14 JB Work on response to supplemental brief; review Priests for Life briefing

5.00

10/24/14 JB Work on response to supplemental brief; review declarations in our case and others; review Hobby

4.00

Lobby and Wheaton College and subsequent decisions; review Guidestone briefing

10/26/14 JB Work on response to supplemental brief; review correspondence with G. Baylor

2.00

10/26/14 TB Research legal issues in 8th Circuit brief filed by government in Dordt College, to which we must respond 2.60

in supplemental brief; emails with Greg Baylor regarding same

10/27/14 JB Work on supplemental brief; related research

5.00

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::345 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 36 of 124 PageID #: 1979

10/28/14 JB Work on supplemental brief; correspondence with clerk re: technical requirements for brief; review 4.80

FRAP and local rules re: supp. briefs

10/28/14 TB Review and revise supplemental brief in 8th Circuit

5.80

10/29/14 JB Revisions to supplemental brief; review Archdiocese of STL and Ave Maria cases and opinions

4.50

10/29/14 TB Review and revise supplemental brief for the Eighth Circuit

2.40

10/30/14 TB Review and revise draft of supplemental 8th Circuit brief; telephone conference with Dave Melton

3.20

regarding same; emails with Greg Baylor; confer with Matt Belz

11/03/14 JB Review correspondence with T. Belz and G. Baylor; revisions to brief; work on tables; finalize brief and 7.00

file

11/03/14 TB Review and revise several consecutive, serial drafts of 30-page supplemental brief in 8th Circuit; emails 10.50

with counsel in similar 8th Circuit case; confer with Matt Belz regarding same; review and revise

11/07/14 TB Review scheduling by 8th Circuit and confer with Greg Baylor regarding same; confer with Dave Melton 0.50

and associate about same; emails notifying client and others

11/17/14 TB Research regarding upcoming arguments in 8th Circuit; extensive email exchanges with similarly situated 2.90

counsel regarding likely questions from the bench; review reply brief filed by government

11/18/14 TB Review reply brief in 8th Circuit case from government; research cited law

4.50

11/20/14 JB Review government reply brief and begin review of new accommodation decisions

4.00

11/20/14 TB Review reply brief of government; research positions presented in same

2.30

12/01/14 JB Research re: Southern Nazarene and Geneva College pleadings; research CMS and CCIIO releases and 4.00

guidelines and regs

12/02/14 JB Review Priests for Life opinion and cited cases; correspondence from Esbeck

3.00

12/03/14 JB File oral argument response form; research re: accommodation cases; listen to seventh circuit oral

4.00

argument and research cases; notes and memo re: oral argument

12/03/14 TB Prepare for oral argument; communications with Greg Baylor, attorney making arguments in other cases 4.20

and arguing case immediately after ours; emails with attorneys similarly situated; research recent rulings

regarding attenuations, etc.

12/04/14 TB Communication via email and telephone with similarly situated attorneys and with David Melton; listen 6.40

to oral arguments in other circuits; discuss upcoming oral arguments with Matt Belz; prepare for oral

argument

12/05/14 JB Listen to third circuit oral argument and research cited cases; draft notes and memo re: same; related 4.50

research

12/05/14 TB Preparation of oral argument; telephone and email with Melton and other similarly situated attorneys; 5.80

research recent opinions; review briefs

12/06/14 TB Preparation for oral argument; email with other attorneys arguing similar cases; research recent

5.00

opinions; review briefs; review recent oral arguments in other circuits

12/07/14 TB Preparation for oral argument; email with other attorneys arguing similar cases; research recent

5.50

opinions; review briefs; review recent oral arguments in other circuits

12/08/14 JB Research and review Priests for Life decision and related 28j letters; review Baylor correspondence; 5.00

research and memo re: least restrictive alternatives

12/08/14 TB Preparation for oral argument; emails with other attorneys similarly situated; telephone conference 7.50

with Dave Melton; confer with Matt Belz, associate

12/09/14 JB Moot; meetings with C. Esbeck and G. Baylor; research Wheaton College and Hobby Lobby; research re: 5.50

RFRA and third party rights

12/09/14 TB Moot court and prepare for oral argument

7.00

12/09/14 TB Preparation for oral argument; prepare opening; confer with Carl Esbeck and Greg Baylor

3.70

12/10/14 JB Prep for oral argument; oral argument

1.50

12/10/14 TB Prepare for oral argument; oral argument

3.50

01/23/15 JB Research re: Holt v. Hobbs and 28(j) letters; work on draft of 28(j) letter

3.50

01/23/15 TB Communications with similarly situated attorneys regarding Holt v. Hobbs case; research same;

0.90

preparation of Rule 28(j) letter regarding supplemental authorities

01/24/15 TB Review Holt v. Hobbs opinion from Supreme Court and prepare suggestions for Rule 28(j) letter to Eighth 1.20

Circuit

02/03/15 JB Check Dordt College pleadings re: 28(j) letters

0.20

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::356 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 37 of 124 PageID #: 1980

02/10/15 JB Review Government 28j letter and Geneva College decision; review 28j letters in other pending cases 2.00

02/11/15 TB Review Government's 28(j) letter following their victory in the 3d Circuit; review Geneva Colege case; 1.50

emails with co-counsel

02/12/15 JB Review status of 10th Circuit appeal and 28j letters; revise 28j response re: Geneva College; review

1.50

Becket database

02/12/15 TB Fly speck Geneva College opinion from the 3d Circuit, for purpose of filing a Rule 28(j) letter responding 4.90

to the Government's 28(j) letter; share research with attorneys similarly situated and speak to client

regarding same; research for and prepare Rule 28(j) response letter for filing in the 8th Circuit

02/13/15 JB Revise 28j response

0.50

02/13/15 TB Work with Matt Belz, Dave Melton, and Carl Esbeck to research 3rd Circuit opinion in Geneva College 6.50

and write, review and revise response to Government's Rule 28(j) letter regarding Third Circuit Geneva

College decision

03/09/15 JB Locate and review Notre Dame order; research briefing in Notre Dame case at Supreme Court level; 3.00

research cases that have relied on Notre Dame appellate court level

03/09/15 TB Preparation of Rule 28(j) letter to 8th Circuit clerk notifying court of GVR by Supreme Court of 7th Circuit 2.50

Notre Dame decision

03/10/15 JB Review and revise 28(j) letter; review Rienzi 28(j) letter; research Notre Dame, Geneva College and

2.50

Priests for Life cases; file 28(j) letter

03/10/15 TB Telephone conference with client; emails with client and co-counsel and other similarly situated

2.10

attorneys regarding Rule 28(j) letter; review and revise several times

03/11/15 TB Confer with other attorneys in similar court of appeals cases regarding content of their 28(j) letters and 0.70

sharing ours regarding GVR of Notre Dame case by Supreme Court; confer with Greg Baylor and request

that he file 28(j) letter in Dordt College case, companion to our case

04/24/15 TB Emails and telephone calls regarding Supreme Court stay in Zubik and Persico and Geneva College cases 1.00

in 3rd Circuit; research same; all over past week

04/27/15 JB Review Michigan Catholic Conference decision and history; draft 28(j) letter

2.00

04/27/15 TB Review action of the Supreme Court in Michigan Catholic Conf. v. Burwell (6th Circuit) in GVRing case; 2.20

emails with other counsel similarly situated; preparation of 28(j) letter to 8th Circuit; email to Melton

04/28/15 JB Revise 28(j) letter; research similar letters in similar cases; file letter

1.00

04/28/15 TB Tweak 28j letter; communications with Esbeck, Melton and others; review relevant portions of file

1.90

04/29/15 TB Emails with counsel similarly situated around the country regarding our various 28j letters regarding the 0.50

GVRing of Michigan Catholic Conference by the Supreme Court

05/27/15 JB Review 28(j) letter re: Notre Dame; review Becket response; draft 28(j) letter

4.00

05/29/15 JB Revisions to 28(j) letter; research re: government briefing in Notre Dame

0.80

05/29/15 TB Review and revise draft of our response to Government's 28j letter based on Seventh Circuit's Notre 1.00

Dame II opinion; research same, referring to other responses in other circuits

06/02/15 JB Revisions to 28(j) letter; correspondence with G. Baylor and co-counsel; file 28(j) letter

0.60

06/02/15 TB Review and revise response to Government's 28j letter based on Notre Dame II from the 7th Circuit 0.50

06/30/15 JB Review East Texas Baptist decision from 5th Circuit; review Govt 28(j) letter re: same; work on response 2.20

to 28(j) letter

06/30/15 TB Review and revise response to Government's Rule 28j letter based on 5th Circuit case

1.50

07/01/15 JB Revise Texas Baptist 28(j) letter; file same

0.80

07/01/15 TB Review and revise response to Texas Baptist 28j letter filed by Government

0.60

07/02/15 JB Review Zubik stay and begin work on 28j citation; review status of 10th and 11th circuit pending cases. 1.50

07/08/15 JB Finish Zubik 28(j) draft

0.50

07/09/15 JB File Zubik 28(j) letter

0.30

07/09/15 TB Research, review and revise proposed Zubik 28j letter to 8th Circuit; email to co-counsel and counsel in 0.70

related case

07/14/15 TB Review 10th Circuit opinion denying RFRA claim by religious nonprofits; emails with co-counsel

2.00

regarding same and how to respond to Government's 28j letter

07/15/15 JB Review Little Sisters decision in 10th Circuit; revise 28(j) letter

1.20

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07/15/15 TB Review Little Sisters case from 10th Circuit; discuss with Dave Melton; preparation of response to

4.50

Government's 28j letter; distribute to co-counsel and other attorneys similarly situated for comment

and correction

07/16/15 TB Review and revise response to Government 28j letter, inserting corrections and suggestions from co- 2.00

counsel and others; review Little Sisters case from 10th Circuit

07/18/15 TB Review Professor Josh Blackman's article regarding HHS lack of expertise to craft religious exemptions; 2.30

consider 28j letter referencing Roberts' opinion stating the same thing; further research re: same

08/07/15 JB Review 2nd Circuit decision; work on 28(j) response

2.00

08/07/15 TB Review Catholic Health Care System case decided by 2d Circuit; preparation of response to government's 3.50

28j letter

08/09/15 JB Review Esbeck comments re: 28(j) response; revise 28(j) letter

1.50

08/09/15 TB Review and revision of response to Government's 28j letter based on 2d Circuit opinion

1.30

08/10/15 TB Research Hobby Lobby opinion; review and revise multiple drafts of response to 28j letter of

3.80

Government citing 2d Circuit case

08/24/15 JB Review 28(j) letter re: new 6th Circuit MCC decision; review MCC decisions and summarize.

2.00

08/27/15 JB Draft MCC 28(j) response; review Hobby Lobby

2.00

08/28/15 TB Prepare, review and revise response to government's 28j letter based on Sixth Circuit MCC decision; 0.90

email to counsel

08/28/15 JB Revisions to MCC 28(j) response

0.50

09/01/15 JB Revise and file 28(j) response re: MCC

0.50

09/04/15 TB Review ERISA brief by Martin Nussbaum which was filed as an amicus brief in Supreme Court Little

2.60

Sisters cert petition and focuses on ERISA; emails to Matt Belz and Carl Esbeck regarding any use to

which it might be put; review our own main brief and supplemental brief in the 8th Circuit; review Judge

Manion's dissent in 7th Circuit case to be cited in response to anticipated 28j letter from the

government

09/11/15 JB Review Grace Schools and Little Sisters rehearing litigation; draft 28(j) response

4.00

09/13/15 TB Research and review and revise Little Sisters and Grace Schools response to government's 28j letter 2.00

09/14/15 JB Revisions to 28(j) letter re: Grace Schools; file same.

0.50

09/17/15 TB Telephone conference with Mark Rienzi of Beckett Fund regarding representation at oral argument etc. 0.60

if case should go to Supreme Court

09/17/15 TB Review positive opinion from the 8th Circuit in Sharpe Holdings v. Burwell, striking down the so-called 2.70

accommodation; discuss with clients and co-counsel; discuss strategy with same

09/30/15 TB Telephone conference with Dave Melton; telephone conference with Mark Rienzi, Paul Clement and 0.80

others from Becket Fund regarding where things go from here

10/06/15 TB Discussions with Mark Rienzi and Dave Melton regarding interplay between for-profit and nonprofit 2.30

cases; review file; review rules regarding government requesting rehearing en banc in 8th Circuit and

related questions, to form strategy for proceeding; extended conversation with client, Dave Melton,

regarding beginning of plan year and interplay between for-profits and nonprofits

11/03/15 TB Email to clients; discuss with Esbeck, Matt Belz and Dave Melton (client) the consequences of the

1.20

government not seeking rehearing en banc

11/10/15 TB Telephone conference with Carl Esbeck regarding proposed amicus brief in Supreme Court; review

1.10

materials provided by Esbeck regarding same

11/19/15 TB Discussions with Esbeck regarding filing amicus brief; research whether winning party can file petition 1.70

for certiorari; review Supreme Court rules regarding same; emails to formerSupreme Court clerks

regarding same

11/20/15 TB Emails with Supreme Court experts regarding petition for certiorari; review file; review Supreme Court 0.90

rules and associated cases

12/02/15 JB Conference call re: amicus briefs

1.00

12/02/15 TB Telephone conference with all potential amici in Supreme Court case involving religious nonprofits

1.20

(Zubik v. Burwell) (1.0 hours); followup with Dave Melton

12/03/15 TB Emails and telephone conferences with Esbeck and then with Melton also regarding change in

1.00

circumstance brought on by LDS taking over brief

12/07/15 TB Telephone conference with co-counsel regarding amicus brief; review file

0.60

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12/28/15 JB Research re: amicus briefs in Supreme Court and Government positions on least restrictive means

2.80

throughout litigation

12/29/15 JB Work on amicus brief; research federal register

4.50

12/30/15 JB Work on amicus brief; review brief rules; review government documentation re: exchanges

4.00

12/30/15 TB Telephone conference with Kim Colby of Christian Legal Society regarding amicus brief strategies and 1.50

questions; research regarding our amicus brief for Supreme Court

12/31/15 JB Work on amicus brief; revise intro

1.00

12/31/15 TB Research for, review and revise amicus brief for Supreme Court case

3.50

01/02/16 TB Review and revise amicus brief for Supreme Court; research for same

3.70

01/03/16 TB Review and revise amicus brief (new version)

1.80

01/04/16 JB Review Becket Fund brief; work on amicus brief

2.00

01/04/16 TB Review and revise amicus brief for Supreme Court; review appeal briefs filed by religious claimants in 4.70

Zubik et al; discuss with Matt Belz

01/05/16 JB Work on amicus brief; research exchanges; review Jones Day brief

1.50

01/05/16 TB Review and revise Supreme Court amicus brief; review briefs filed yesterday by petitioners in Supreme 3.60

Court; discuss with client, Dave Melton

01/06/16 TB Research for and review and revise amicus brief for Supreme Court, filed on behalf of amici CNS Int'l 7.20

Ministries and Heartland Christian College; confer with other counsel; confer with Dave Melton by email

and telephone; make more revisions

01/06/16 JB Final work on brief; review Rienzi comments

4.00

01/07/16 JB Work on tables for amicus brief; review correspondence with K. Colby; review T. Belz revisions; review 1.20

printer's changes

01/07/16 TB Confer with Kim Colby, counsel for another amici, Christian Legal Society; confer with Matt Belz, co- 5.50

counsel on brief; confer with David Melton, client and co-counsel; review and revise; confer with

personnel at Cockle Printing Company; proofread proofs from Cockle Printing and discuss with M. Belz

01/08/16 JB Work on certain cites for Amicus brief; phone conference with printer re: revisions

0.60

01/08/16 TB Final proofreading of amicus brief for Supreme Court in Zubik; discuss substantial changes with Matt 3.20

Belz; discuss all final changes with Trish Cockle at Cockle Printing

01/12/16 JB Correspondence with Supreme Court Clerk; draft letter for extension of time; review rule

0.50

01/12/16 TB Communications with Solicitor General's office, Andy Cockle, Dave Melton, clerk of Supreme Court and 2.80

others to get extension of two weeks in which to respond to Government's petition for writ of certiorari;

preparation, review and revision of same; research regarding how to respond substantively

01/19/16 JB Work on response to petition for cert.

4.00

01/21/16 JB Work on response to cert petition

5.00

01/24/16 TB Review Melton revisions; research regarding brief

3.50

01/25/16 JB Incorporate D. Melton revisions; review and revise brief; related research

3.00

01/25/16 TB Review and revise Brief in Opposition to Government's petition for writ of certiorari; discuss with Matt 2.50

Belz; discuss with Dave Melton; review and revise again

01/26/16 JB Revisions to response to cert. petition

1.00

01/26/16 TB Incorporate Carl Esbeck changes and suggestions where appropriate; edit and re-edit; confer with Matt 3.50

Belz regarding same

01/27/16 JB Revisions to response to cert. petition

1.00

01/27/16 TB Review and revise brief responding to Government's petition for writ of certiorari; to Matt; back from 4.80

Matt; review and revise and send to printer; get back from printer and flyspeck proofs; check pagination

and citations; check table of authorities; mark up and send back to printer; email with printer; emails

with Dave Melton

01/28/16 TB Fly speck Supreme Court brief one more time and email printer with three changes; back and forth with 2.70

printer; email client

02/15/16 TB Discuss likely options with attorney Martin Nussbaum, given death of Justice Scalia; discuss with Dave 0.70

Melton

02/23/16 TB Confer with counsel in Washington DC regarding status of Zubik appeal in Supreme Court

0.60

03/24/16 TB Review Supreme Court argument; communications with attorneys involved in same; emails with Melton 2.30

and Esbeck

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03/29/16 TB Emails with co-counsel and others regarding SCOTUS request for further briefing on least restrictive 2.90

alternative; extended telephone conversation with Woody Cozad to answer questions about Sharpe

Holdings case asked by Senator Blunt

03/30/16 TB Confer with Matt Belz regarding SCOTUS post-argument order in Zubik; telephone and email with Esbeck 3.10

and with Melton regarding same; email with Mark Rienzi at Becket Fund regarding same; research same;

research Form 700 and send to Melton; set up phone conference with Rienzi; emails with counsel for

other religious claimants in Zubik case; phone conferences with same; phone conference with Mark

Rienzi at Becket Fund to share my ideas and pass along Dave Melton's ideas

03/31/16 TB Emails with client and co-counsel and other counsel similarly situated; research issues connected with 3.80

SCOTUS post-argument order in Zubik and comment on same; telephone conference with Dave Melton

regarding same; research Missouri solution; telephone conference with Mark Rienzi regarding same;

telephone conference with Sam Lee regarding Missouri experience; telephone conference with Adele

Keim at Becket Fund regarding Missouri; telephone call to Sam Lee

04/01/16 TB Extended telephone conference with Ed Haislmaier and his associate at Heritage Foundation regarding 1.10

how to respond to Supreme Court post-argument order

04/10/16 TB Back and forth with Becket Fund attorneys et al regarding Missouri opt in and out procedure and

3.60

experience; review UHC and BCBS Anthem materials regarding same; review Missouri statutes

04/13/16 TB Discuss Little Sisters supplemental brief for SCOTUS with co-counsel; discuss with David Melton; review 1.90

Supreme Court supplemental filings by Paul Clement et al. and by Government; emails with co-counsel

and client; review Missouri references

04/22/16 TB Review reply brief of Little Sisters et al. to Government's supplemental brief

0.90

05/16/16 TB Review per curiam decision in Zubik; review GVR in CNS Int'l Ministries; emails with clients and co-

2.60

counsel and counsel similarly situated

05/19/16 TB Review correspondence from the Supreme Court; discuss with co-counsel; emails to co-counsel and 2.40

clients; extended phone conversation with Mark Rienzi, counsel for Little Sisters of the Poor

06/22/16 TB Review filing of status report by USDOJ; review order of court reopening case and send out to interested 0.90

persons

06/29/16 TB Review Government status report to Eighth Circuit and research underlying case regarding same;

1.90

telephone conferences with attorneys regarding same

07/21/16 TB Review the Government's status report to the 8th Circuit; discuss objectionable portions of it with client; 2.40

discuss procedure with Yvette at clerk's office; discuss with Supreme Court counsel in Zubik case; discuss

further with client

07/22/16 TB Telephone conference with Dave Melton; telephone conferences with Mark Rienzi at Becket Fund;

3.30

research Zubik order; telephone conference with Yvette at 8th Circuit clerk's office; prepare response to

status report

07/23/16 TB Research file; confer with Esbeck; confer with Matt Belz; confer with David Melton; confer with Mark 3.00

Rienzi at Becket Fund; research cases; prepare status report for 8th Circuit

07/24/16 JB Review and revise response to Government status report.

0.30

08/03/16 TB Review sua sponte order from 8th Circuit and email same to co-counsel and clients

0.20

09/13/16 TB Preparation of comments to supply to rule-making apparatus of federal government regarding RFI

3.20

(Request for Information) that was issued by federal government

09/15/16 TB Review requirements of Government's Request for Information and discuss strategies with counsel

3.30

similarly situated

09/16/16 JB Draft of response to RFI; research RFI responses

3.00

09/16/16 TB Research requirements for making comments regarding contraceptive mandate when TPAs are involved; 2.50

discuss with counsel similarly situated

09/17/16 TB Research all briefs filed in Zubik/Little Sisters Supreme Court case, including merits briefs and

2.20

supplemental briefs required by SCOTUS to see what was said regarding self-insured/TPA situations

09/18/16 TB Research and then review and revise comments responding to RFI of government; discuss with counsel 1.90

similarly situated

09/19/16 JB Revisions to RFI response

1.00

09/19/16 TB Emails to Rienzi and also to Melton

0.40

09/20/16 JB Revisions to RFI response; file

0.80

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10/03/16 TB Review government status report; review 8th Circuit order setting new status report for November 30, 0.40

2016

10/26/16 TB Telephone conference with co-counsel regarding strategies to proceed given Government delays; review 0.50

file with regard to same

11/17/16 TB Telephone conference with Greg Baylor, attorney for Dordt College, regarding strategies moving forward 1.40

given political changes, etc., and status report coming up; review file; telephone conference on Monday,

November 14, with USDOJ regarding same issues

11/22/16 TB Telephone conference with Dave Melton for update on case in light of recent political and legal

0.90

developments; review file

11/28/16 JB Review Government status report; research re: Zubik and other nonprofit cases; draft status report

3.00

11/30/16 JB Correspondence with 8th Circuit re: filing of responsive status report

0.20

12/01/16 JB Multiple revisions to status report; file same.

1.00

12/01/16 TB Research regarding authority of Government to control TPAs in self-insured situations; prepare, review 1.90

and revise status report response; discuss with Matt Belz and David Melton

12/09/16 TB Review order from 8th Circuit judges regarding status report and requirement that it should include 0.50

Government explanation as to how status as self-insured could affect case; discuss with co-counsel

01/25/17 TB Telephone conferences and emails to co-counsel and clients over past week

2.20

02/28/17 JB Review government status report and draft response.

0.80

03/27/17 TB Review Supreme Court order in Zubik and confer with attorneys for similarly-situated clients

1.50

03/29/17 TB Review 8th Circuit filings; email to Joshua Salzman at USDOJ regarding status

0.30

03/30/17 TB Email with Mark Rienzi at Becket Fund regarding possibility of contacting HHS regarding contraceptive 0.90

mandate enforcement; telephone with Rienzi; further email to Rienzi

04/25/17 JB Conference call with government attorneys and attorney in similar cases

0.60

04/25/17 TB Telephone conference with Dave Melton; many emails with similarly situated attorneys in Washington, 3.00

D.C. setting up meeting with Acting Solicitor General; all in attempt to move cases forward if not resolve

them; telephone conference with all attorneys similarly situated post-Zubik regarding strategy to take

vis-a-vis meeting with Acting Solicitor General; telephone conference with Acting Solicitor General [1.5

hours]

04/26/17 TB Telephone conference and email with client, David Melton; telephone conference with Zubik attorneys, 1.30

including Paul Clement and others, regarding moving toward an agreement with the government

04/27/17 JB Research Zubik order and options going forward

0.50

04/27/17 TB Review discussions of last two days among Zubik attorneys and USDOJ, including Acting Solicitor

0.50

General; email to Esbeck, Matt Belz and Melton

04/28/17 TB Telephone conference with client (David Melton) regarding how to respond to offer of Acting Solicitor 4.30

General; review status reports from 60 days ago; review motions being made in other circuits; emails

and telephone conferences with Becket Fund attorneys; preparation of status report; further email with

Becket Fund plus more research on current status of accommodation

04/30/17 TB Email to Baylor, Esbeck and Melton regarding CA8 status report due tomorrow; further emails with

2.90

attorney from Becket Fund (Little Sisters), research for and preparation of status memorandum to file

Monday, May 1, tomorrow; review status report and motion filed by Becket Fund in the Fifth Circuit

05/01/17 JB Research Notre Dame case; review and revise Sharpe Holdings status report; file same

1.00

05/01/17 TB Review status report from Government due May 1; review and revise our proposed status report and 1.80

circulate and accept return comments regarding same; review and revise, and then finalize our status

report

05/04/17 TB Review emails regarding pending Executive Order affecting case in the 8th Circuit; respond to same; 0.90

review summary of proposed EO; more emails

05/30/17 TB Emails with counsel in Washington, D.C. regarding impending interim final rule at HHS; email to Melton 0.40

05/31/17 TB Review draft of new Interim Final Regulation; discuss with co-counsel; discuss with David Melton

1.50

06/08/17 TB Emails with attorneys representing other claimants, specifically Becket Fund attorneys in Washington, 1.80

D.C., regarding the language of and effect of new proposed IFR; review language of same; telephone

conference with Dave Melton; review proposed IFR; email to similarly-situated counsel in Washington,

D.C. regarding proposed IFR

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06/29/17 TB Confer with Washington, DC attorneys regarding status of proposed new rule at HHS and effect on

0.40

status of this case

06/30/17 TB Emails with counsel for Dordt College and Cornerstone University, similarly situated to Heartland

2.50

Christian College and CNS Ministries, regarding how to respond to government's request for an

additional 60 days for yet another status report; review and revise various drafts of responses to

government's status report; prepare for final

08/29/17 TB Telephone and email discussions with attorneys in Washington DC regarding settlement negotiations 2.90

with DOJ; review draft of settlement; further communications with attorneys at ADF and Becket Fund;

review Government status report filed in 8th Circuit

08/30/17 TB Review proposed settlement draft between DOJ and our side; email to client; research what has been 2.90

said already in Sharpe Holdings for-profit case; emails with Washington DC lawyers

09/04/17 TB Review and revise proposed settlement agreement and proposed judgment to be used in nonprofit 2.40

accommodation cases; redline suggested changes and make comments; send to Becket Fund atttorney

09/19/17 TB Communications with Becket Fund and ADF attorneys regarding settlement terms being negotiated with 4.50

USDOJ; preparation of Section 1988 fees and expenses claim

09/20/17 JB Work on fees issues/compilation for nonprofit matter

2.00

09/20/17 TB Further communications with attorneys at Becket Fund and ADF regarding final settlement terms; email 7.50

to USDOJ informing them of our desire to settle on same terms; preparation of claim for fees and

expenses under Section 1988 as part of agreement

10/04/17 TB Emails to USDOJ officials regarding settlement; emails with similarly situated attorneys in Zubik cases; 1.80

telephone conference with Mark Rienzi; review file

10/09/17 JB Correspondence with co-counsel; draft response to motion to dismiss appeal

0.40

10/09/17 TB Telephone and email communications with Greg Baylor, Mark Rienzi, Carl Esbeck, Matt Belz and Dave 1.50

Melton with respect to responding to Government motion to dismiss their appeal and our request to

include attorney fee determination among things the district court should do

10/10/17 JB File response to motion to dismiss

0.20

10/10/17 TB Telephone conference with Dave Melton, general counsel for clients; email with Esbeck and Matt Belz; 0.90

email with Patrick Nemeroff et al at USDOJ; review FRAPs and local 8th Circuit rules

10/12/17 TB Review 75 pages of comments accompanying publication of new Rule by HHS, Labor and Treasury; apply 2.50

to situations faced by CNS Corporation, Ozark National Life, NIS Financial, CNS Int'l Ministries, inc.,

Heartland Christian College

10/14/17 TB Email to Lisa Pake, regarding records from 2003; search paper records and Pacer for 2002-2005 records 1.20

for precedent regarding sending mandate from 8th Circuit to district court (Judge Webber) to determine

fees and expenses on appeal

10/15/17 TB Review emails from USDOJ and Mark Rienzi at Becket Fund regarding settlement discussions on Monday 1.90

(tomorrow); review and flyspeck 10-13-2017 draft of settlement document

10/16/17 JB Draft and file bill of costs

1.00

10/16/17 TB To courthouse to speak with clerk (Yvette) regarding order and motions regarding fees and costs;

4.50

telephone conference with Greg Baylor, ADF attorney who also has 8th Circuit cases; telephone

conference with Dave Melton, client's general counsel; review and revise claim for court costs on

appeal; telephone conference with Mark Rienzi; telephone conference with USDOJ; telephone

conference with Greg Baylor; telephone conference with Dave Melton, GC for clients

10/17/17 JB Draft motion to remand fees; correspondence with co-counsel and attorneys on related cases

0.50

10/17/17 TB Emails with counsel for clients similarly situated; emails with Dave Melton; emails with Carl Esbeck;

5.50

telephone conference with Carl Esbeck; review and revise motion to remand fee request from 8th

Circuit to district court; review order of 8th Circuit that fee motion should be made in appeals court;

discuss with co-counsel, preparation of exhibits for same; work on fee and expense claim

10/18/17 JB Work on fee petition and brief

3.00

10/19/17 JB Work on fee petition and brief

2.00

10/20/17 TB Strategize and confer with co-counsel etc. regarding how to proceed, given need for injunction and 8th 1.80

Circuit action; prepare extensive email regarding same to Dave Melton, Matt Belz and Carl Esbeck

10/23/17 JB Work on fee petition and brief; research re: fees and amicus briefs

3.00

10/27/17 TB Review and revise brief in support of motion for fees and expenses, along with declaration

1.60

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10/30/17 JB 11/01/17 JB 11/01/17 TB
11/02/17 JB 11/02/17 TB 11/03/17 TB
11/6/17 JB

Revisions to brief in support of motion for fees and expense; related research

4.00

Work on declarations and exhibits to brief

1.00

Review and revise motion for declaratory and injunctive relief being filed for Catholic Benefits

3.10

Association by Martin Nussbaum in Oklahoma; this is motion we had discussed at length, and will be

used by us in Sharpe Holdings in district court [1.2]; review and reivse brief in support of Eighth Circuit

motion for fees and expenses [1.9]

Correspondence with A. Johnson, T. Hearne and C. Esbeck re: revisions to declarations; work on brief 3.00

tables

Review billing records for presentation to Eighth Circuit; review and revise motion for fees, declarations 3.00

and memorandum in support

Review and revise declarations, brief in support of motion for fees; communications with Matt Belz and 2.20

Thor Hearne

Final proofreading of fee brief, motion and declarations; prepare exhibits for filing; file all

4.50

Tim Belz Hours: Matthew Belz Hours:
Total hours:

625.50 377.30 1,002.80

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Carl H. Esbeck Statement of Fees & Costs 2012-03-12 0.4 conferring by telephone with Timothy Belz re: initial engagement and discussion of parties and possible nature of claims. 2012-03-22 0.4 exchange of e-mails w/ T. Belz re: statement of faith and etc. 2012-04-04 0.2 exchange e-mails w/ T. Belz re: recent article on freedom of association & corporate religious conscience.
2012-04-05 0.7 reviewing research article by Professor Robert Vischer, on right of assembly and freedom of association with respect to nonprofits; send email to T. Belz re: pleading count of freedom of association.
2012-07-12 2.7 reading Sup. Ct. cases Lee, Alamo Foundation, Jimmy Swaggart Ministries, and Prince v. MA; preparing memorandum for T. Belz and D. Melton; sending email to Belz and Melton.
2012-07-23 0.4 exchange of e-mails regarding recent rulings on standing and lack of ripeness dismissing cases brought by Becket; T. Belz email and attachment re: freedom of assembly.
2014-07-01 1.2 two telephone calls with Timothy Belz re: the impact of the Hobby Lobby ruling on the part of this case pending in the Eight Circuit.
2014-07-02 0.3 conferring by telephone with Timothy Belz re: Kennedy’s opinion on differing treatment of religious organizations by Gov’t.
2014-07-05 0.4 participation on email string re: third-party administrators and footnote 9 solution to what can be required of religious organizations.
2014-07-07 0.5 conferring by telephone with Timothy Belz re: preparation of reply brief.
2014-07-09 0.3 participation in email string re: our characterization of substantial religious burden.
2014-07-12 1.2 reviewing proposed brief amici by Christian Legal Society (Kim Colby) and sending two emails to Timothy Belz with critical comments on same.
2014-07-14 4.4 reviewing and proposing edits to draft Reply Brief of Timothy and Matt Belz.
2014-07-15 4.9 researching some points of law; finish review and proposed edits to draft of Reply Brief; sending edits via email to Timothy Belz.
2014-07-18 0.3 exchanging emails with Timothy Belz re: latest HHS directive to disclose to employees any withholding of contraception coverage.
2014-07-21 0.3 exchanging emails with Timothy Belz re: communication from counsel for Government w/r/t Government working out nationwide response to impact of Hobby Lobby decision on religious nonprofits.
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2014-08-01 0.3 exchanging emails with Timothy Belz re: new proposed IRS tax forms bearing on ACA responsibilities and religious nonprofit corporations.
2014-08-18 0.4 exchanging emails with Timothy Belz re: draft stipulation w/r/t new briefing schedule; emails on M. Lederman’s blog post on the case or controversy left after the Wheaton College solution. 2014-08-20 0.3 more exchange of email re: M. Lederman’s posts and review of filings in 10th Circuit in similar cases.
2014-08-22 0.4 receiving new proposed final regulations release by Gov’t re: the Wheaton College order; sending email to Tim Belz regarding same.
2014-08-23 1.0 studying new proposed final regulations; sending half dozen emails to Tim Belz regarding whether Sharpe Holdings if still complicit in wrongdoing such that there is still a RFRA claim and case is not moot.
2014-08-25 0.3 exchange of emails re: burden on the Government to make the first move concerning the new IFRs.
2014-11-07 0.5 conferring by telephone w/ Timothy Belz re: Eighth Cir setting and panel, setting in Dordt College case on same day; plans to moot the arguments on day before and precedent.
2014-11-17 0.9 receiving and reading email traffic about questions to expect at oral argument; drafting email reply and commentary in answer to questions. 2014-11-24 2.2 studying Gov’t Reply Brief of Nov. 18th and preparing memo for T. Belz with suggestions for hearing and oral argument; sending e-mail to T. Belz transmitting same.
2014-11-26 1.4 listening to audio recording of oral argument in Third Circuit; making notes of things to do and not do in Eighth Circuit and pass on to Timothy Belz.
2014-12-08 2.2 listening to audio recording of oral argument in Seventh Circuit; making notes of questions to prepare for in Eighth Circuit argument.
2014-12-09 5.4 travel to Clayton, MO, to moot Belz and Greg Baylor (ADF); meeting with Tim & Matt Belz, and Greg Baylor to discuss how best to argue case; mooting Belz and Baylor for Eight Circuit oral argument.
2015-01-21 0.3 exchange of email w/ T. Belz re: letter to circuit panel re: new opinion in Holt v. Hobbs.
2015-02-12 1.3 exchanging emails with Timothy Belz re: Third Circuit decision in Geneva College, and reading new opinion.
2015-02-13 1.4 exchanging several email w/ T. Belz about refining Rule 28(j) letter; reading and distinguishing Bowen v. Roy.
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 46 of 124 PageID #: 1989
2015-03-09 1.4 email from Greg Baylor, ADF, concerning SCOTUS’ gvr of the Notre Dame case decided by the Seventh Circuit; discussion via email Tim Belz, G. Baylor, and Mark Rienzi concerning what to put into a Rule 28(j) letter to Eighth Circuit where our appeal is pending.
2015-03-10 0.5 reviewing and providing edits on draft Rule 28(j) letter by T. Belz; reviewing draft Rule 28(j) letter by Mark Rienzi.
2015-04-28 0.5 reviewing gvr by Sup. Ct., reviewing three drafts of Rule 28(j) letter by T. Belz. 2015-05-20 0.4 reviewing Seventh Circuit’s opinion in Notre Dame case; exchanging emails with T. Belz.
2015-05-21 1.1 reviewing opinions by judges of D.C. Circuit Court of Appeals in denial of petition for rehearing en banc; sending email to T. Belz concerning anticipated Rule 28j letter.
2015-05-28 1.0 sending T. Belz via email Becket Funds editorial on HHS recent release of accommodation for Insurance Companies w/r/t no need to provide full array of contraceptives; exchange of email re: Governments most recent Rule 28(j) Letter; reviewing draft letter, making suggested edits and returning letter to T. Belz. 2015-06-23 1.6 reading with care latest decision against our position, in the East Texas Baptist University case in the Fifth Circuit court of appeals.
2015-06-25 0.4 reading Government’s Letter; exchanging emails with Tim Belz regarding Government’s Rule 28(j) letter.
2015-06-26 1.2 conferring by telephone with T. Belz re: 28(j) response; drafting letter for T. Belz’s examination and filing come Monday. 2015-06-30 0.3 reviewing drafts of Rule 28j letter in reply to East Texas Baptist decision. 2015-07-09 0.4 reviewing draft of Rule 28j letter on Zubik disposition in SCOTUS, and returning e-mail with suggested edits.
2015-07-10 0.3 receiving from HHS recent regulatory changes, and forwarding them to T. Belz.
2015-07-15 0.3 working w/ T. Belz on 28j reply to Tenth Circuit opinion in Little Sisters of the Poor.
2015-08-08 0.4 exchanging email with T. Belz re: Rule 28j letter in reply to Second Circuit opinion.
2015-08-09 2.8 reading with care Second Circuit opinion; composing Rule 28j letter; sending series of emails to Tim and Matt Belz; sending email to T. Belz and Greg Baylor of ADF on TPA not subject to Government's authority because of ERISA.
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 47 of 124 PageID #: 1990

2015-08-10 2.1 reading T. Belz email and draft 28j letter; composing new letter and sending to T. Belz via email; revising third draft of letter.

2015-08-28 0.3 reading T. Belz email and draft 28j letter in Michigan Catholic Conference decision by 6th Circuit Court of Appeals; sending reply email with suggestions.

2015-09-11 0.4 reading T. Belz email and draft 28j letter in Grace Schools v. Burwell, 7th Cir., and sending suggestions.

2015-09-12 0.2 exchange of emails with T. Belz on 28j letter.

2015-09-17 0.9 reading opinions of Eighth Circuit panel in this case and Dordt College case; conferring by phone with T. Belz concerning opinion and next moves.

2015-09-20 0.7 composing email to T. Belz re: posing questions concerning arrangements with Becket Fund should Government appeal; laying out argument concerning need to show cause-in-fact as part of the prima facie claim.

2015-10-31 0.4 exchanging emails with T. Belz re: deadlines for petition of rehearing en banc and petition for certiorari.

2015-11-03 0.3 exchange of emails re: DOJ not seeking rehearing in Circuit.

2015-11-06 0.3 exchange of emails re: grant of cert. by SCOTUS in related cases from other circuits.

2015-12-15 0.5 receiving a viewing Government’s Petition for Writ of Certiorari; sending email to T. Belz regarding response.

2015-12-17 1.0 reading with care Government’s Petition for Writ of Certiorari and sending detailed e-mail to Tim and Mat Belz urging filing of a Reply Brief and rationale.

2015-12-22 1.3 writing memo concerning Government’s claim that there is no “substantial burden” and that RFRA claimants have to do more than assert unilateral claim of “burden,” by suggesting we agree that RFRA claimants have to show, if challenged, both sincerity and that claimant is religious; composing e-mail transmitting attached memo to Tim and Matt Belz and Dave Melton.

2016-01-25 0.3 exchange of e-mails with Tim and Matt Belz re: suggesting edits to draft Brief in Opposition to Government’s petition for certiorari.

2016-01-26 4.2 editing draft Brief in Opposition; sending email with attachment to Tim and Matt Belz.

2016-01-29 0.3 final reply brief.

exchange of emails with T. Belz re: oral argument setting in SCOTUS and our

2016-03-29 0.5 taking note of SCOTUS’ request for add’l briefing in Zubic; email exchanges with T. Belz, M. Bela and D. Melton concerning same.

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2016-03-30 0.4 how to respond.

continuing with discussion with respect to responding to SCOTUS’ thinking and

2016-03-31 0.4 reviewing email and attachment from T. Belz re: does SCOTUS order pertain to self-insured plans or not; sending email reply w/ my advice.

2016-04-08 0.3 conferring by phone with T. Belz re: SCOTUS’ new briefing schedule and possible replies by DOJ, Becket and ADF.

2016-05-16 1.1 reading SCOTUS’ per curium opinion and GVR; reading and participating in email string w/r/t what this means and our arguments on remand.

2016-05-17 0.5 Circuit panel.

continued email exchanges with T. Belz re: Court’s opinion and approach to

2016-07-21 0.6 reading Government’s status report and emails from T. Belz and Dave Melton; sending emails concerning how to proceeding given Government’s intent to impose duty on TPA.

2016-07-27 0.5 conferring by phone with Tim Belz re: Sharpe Holdings’ response to Government’s status report; strategy at this time to Government’s indicated intent to charge TPA; exchange of emails with T. Belz re: how to proceed on Status Report.

2016-07-30 0.3 composing email to T. Belz regarding prompting ruling in Circuit over Gov’ts claim that it has authority to order TPA to provide contraception.

2016-08-03 0.4 reviewing T. Belz email and attached order from Circuit; sending email urging motion after next status report Oct. 7.

2016-10-26 0.3 conferring by phone with T. Belz re: possible challenge to DOJ’s status report suggesting position contra to ERISA, thus getting a ruling out of the Circuit panel.

2016-12-08 0.3 reviewing email from T. Belz and attached Order from Circuit Panel granting extension of time to file status report, and requesting that next report address plaintiffs’ status as selfinsured.

2017-01-10 0.3 reviewing email from T. Belz and attached DOJ Status Report; sending reply email.

2017-01-20 0.3 Belz via email.

locating the new executive order by President Trump on the ACA; sending to T.

2017-01-21 0.2 exchanging emails with T. Belz on new executive order by President and implications for resolving this lawsuit.

2017-04-25 0.3 exchanging emails with Timothy Belz re: word from DOJ on Trump Administration position on contraceptive mandate and RFRA suits post Zubik order.

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2017-04-27 0.6 reviewing notes of conference call with Acting Solicitor General; reviewing emails from T. Belz and Dave Melton; sending two emails with my comments on SO’s inadequate offer to settle. 2017-04-28 0.3 sending email with commentary on the DOJ proposed settlement; discussion with Greg Baylor counsel for Dordt College. 2017-04-29 0.2 exchange of emails with T. Belz on response to DOJ settlement offer. 2017-05-01 0.2 reviewing email from T. Belz and attachments re: status report and our proposed reply; sending reply email. 2017-05-03 0.4 exchanging and forwarding emails and attachments to T. Belz concerning forthcoming Trump Executive Order; comparing leaked EO with the Ex Order as signed. 2017-05-04 0.3 exchanging emails concerning EO as issued; forwarding statement by Secretary of HHS (Price) on his response to the EO. 2017-06-01 0.4 sending e-mail to Tim Belz and Dave Melton re: notice on OMB webpage concerning review of HHS interim final rule to accommodate religious and moral objections; sending link to same w/r/t leaked copy of HHS interim final rule; skimming the proposed new rule. Total hours: 71.8
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 50 of 124 PageID #: 1993

Principal Tasks
District Court Complaint, joinder, etc. Prel. inj. brief, reply, oral argument, etc. Supp. authorities Total:
Eighth Circuit Prior To Supreme Court Initial correspondence and briefing Supplemental briefing Oral argument, moot, preparation, etc. 28(j) Letters, 8th Cir. Decision, etc. Total:
U.S. Supreme Court Zubik Amicus Response Cert Petition Total:
Eighth Circuit After Remand Correspondence, research, etc. RFI Response Status report work, etc. Fee petition and settlement work, etc. Total:

Dates

T. Belz

M. Belz C. Esbeck

Totals

7.9.12 to 11.19.13

40.2

21.9

4.8

11.21.13 to 12.25.13 69.3

76.2

0

12.26.13 to 12.27.13

1.9

0.5

0

111.4

98.6

4.8

66.9 145.5 2.4 214.8

3.25.14 to 8.6.14

149.3

88.7

13.8

8.14.14 to 11.3.14

47.7

43.5

2.7

11.7.14 to 12.10.14

58.8

31.5

12.6

1.23.15 to 11.3.15

62.7

41.1

19.5

318.5

204.8

48.6

251.8 93.9 102.9 123.3 571.9

11.10.15 to 1.8.16

41.2

22.6

0

1.12.16 to 1.28.16

19.8

14.5

9.3

61

37.1

9.3

63.8 43.6 107.4

2.15.16 to 8.3.16

37.6

0

0

9.13.16 to 9.20.16

13.5

5.1

0

10.3.16 to 6.30.17

31.8

7.1

9.1

8.29.17 to 11.6.17

51.7

24.6

0

134.6

36.8

9.1

37.6 18.6 48 76.3 180.5

Total hours: Rate: Total fees:

625.5

377.3

71.8

$450.00 $250.00 $450.00

$281,475.00 $94,325.00 $32,310.00

1074.6 $408,110.00

Exhibit 2
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::510 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 51 of 124 PageID #: 1994

NO. 15-775
In the Supreme Court of the United States
DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Petitioners, v.
CNS INTERNATIONAL MINISTRIES, INC. AND HEARTLAND CHRISTIAN COLLEGE, Respondents.
On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit
BRIEF FOR THE RESPONDENTS

DAVID R. MELTON General Counsel for CNS International Ministries, Inc. and Heartland Christian College 500 E. Ninth Street Kansas City, Missouri 64106 (816) 842-6300

TIMOTHY BELZ Counsel of Record J. MATTHEW BELZ Ottsen, Leggat & Belz, L.C. 112 S. Hanley Road Suite 200 St. Louis, Missouri 63105 (314) 726-2800 tbelz@olblaw.com jmbelz@olblaw.com

Counsel for Respondents

Exhibit 3
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::511 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 52 of 124 PageID #: 1995
i QUESTIONS PRESENTED 1. Does it substantially burden the Respondents’ exercise of religion when the Government forces Respondents, over their sincerely held religious objection, to play an integral role in the provision of health insurance coverage for abortifacient drugs and devices to Respondents’ employees? 2. Has the Government met its burden of demonstrating that the so-called “accommodation” for religious nonprofit employers is the least restrictive means of satisfying a compelling governmental interest?
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::522 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 53 of 124 PageID #: 1996 ii
CORPORATE DISCLOSURE STATEMENT Both CNS International Ministries, Inc. and Heartland Christian College are religious nonprofit corporations that have no parent corporations. Neither is subject to ownership of any kind by any other corporation.
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::533 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 54 of 124 PageID #: 1997
iii TABLE OF CONTENTS QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i CORPORATE DISCLOSURE STATEMENT . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv PROCEEDINGS BELOW . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. The so-called accommodation is not an “opt-out.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. HCC and CNS ask not to prevent “third parties” from providing contraceptive coverage to employees, but that they themselves be left out of the Government’s scheme . . . . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::544 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 55 of 124 PageID #: 1998
iv TABLE OF AUTHORITIES CASES Berkey v. Third Ave. Ry. Co., 244 N.Y. 84 (1926) . . . . . . . . . . . . . . . . . . . . . . . . 4 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) . . . . . . . . . . . . . . 2, 6, 8, 10 Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015) . . . . . . . . . . . . . . . . . 3 East Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, No. 15-35 (Nov. 6, 2015) . . . . . . . . . . . . . . . . . . . 3 Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. 2015) . . . . . . . . . . . . . . . . 3 Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted, Nos. 15-105 and 15-119 (Nov. 6, 2015) . . . . . . . . 3 McCollum v. Board of Education, 333 U.S. 203 (1948) . . . . . . . . . . . . . . . . . . . . . . . 4 Michigan Catholic Conference & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015) . . . . . . . . . . . . . . . . 3 Priests for Life v. HHS, 772 F.3d 229 (D.C. Cir. 2014), cert. granted, Nos. 14-1453 and 14-1505 (Nov. 6, 2015) . . . . . . 3 Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Services, 2:12 CV 92 DDN, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013), aff’d, 801 F.3d 927 (8th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . 5
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::555 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 56 of 124 PageID #: 1999
v Sharpe Holdings, Inc. v. U.S. Dept. of Health &
Human Services, 801 F.3d 927 (8th Cir. 2015) . . . . . . . . . . . passim Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) . . . . . . . . . . . . . . . . . . . . 6, 10 Tiller v. Atl. Coast Line R. Co., 318 U.S. 54 (1943) . . . . . . . . . . . . . . . . . . . . . . . . 4 University of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015) . . . . . . . . . . . . . . . . 3 Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) . . . . . . . . . . . . . . . . . . . . . 6 Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015) . . . . . . . . . . . . . . . . 3 Zubik v. Burwell, 778 F.3d 422 (3d Cir.), cert. granted, Nos. 14-1418 and 15-191 (Nov. 6, 2015) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 10 STATUTES AND REGULATIONS Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-2000bb–4 . . . . . . . . . . . . . . 1, 2 29 C.F.R. 2590.715-2713A(b)(2) . . . . . . . . . . . . . . . . 6 45 C.F.R. 147.131(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5 MISCELLANEOUS 79 Fed. Reg. 51092 (Aug. 27, 2014) . . . . . . . . . . . . . 5 East Tex. Baptist Univ. v. Burwell, No. 15-35, Govt. Brief in Opposition (Sept. 2015) . . . . . . . . . . . . . 2
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::566 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 57 of 124 PageID #: 2000 vi
Healthcare.gov, “Why bother with health insurance?” https://www.healthcare.gov/youngadults/ready-to-apply/ . . . . . . . . . . . . . . . . . . . . . 8
Transcript of Motions Hearing, Dkt. 54, Roman Catholic Archbishop of Wash. v. Sebelius, No. 13-1441 (D.D.C. Nov. 22, 2013) . . . . . . . . . . 7
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::577 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 58 of 124 PageID #: 2001
1
PROCEEDINGS BELOW Respondents CNS International Ministries, Inc. (CNS) and Heartland Christian College (HCC) are nonprofit religious organizations that offer healthcare coverage to employees through a self-insured plan. Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Services, 801 F.3d 927, 932 (8th Cir. 2015). CNS, which has more than fifty employees, provides full-time residential services to men, women, and children with behavioral problems or who suffer from alcohol or drug dependencies. Id. CNS also operates a school that serves the children of individuals in its recovery program, as well as its employees’ children. Id. at 933. HCC, which has fewer than fifty employees, provides post-secondary higher education to employees and residents of CNS and their dependents. Id. Respondents are located in northeast Missouri. In accordance with their sincerely held religious beliefs, CNS and HCC oppose the use, funding, provision, or support of elective abortions, and they believe that certain contraceptives required under the contraceptive mandate—Plan B, ella, and copper IUDs—can and do provide elective abortions. Id. at 935-36. CNS and HCC brought suit alleging that the Government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for abortifacients through their group health plan or facilitate that objectionable coverage through the “accommodation” process. Id. at 936. The district court for the Eastern District of Missouri granted injunctive relief in favor of CNS and HCC, citing the Religious Freedom Restoration Act of
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::588 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 59 of 124 PageID #: 2002
2
1993 (RFRA), 42 U.S.C. 2000bb to 2000bb–4. 801 F.3d at 936. The Government appealed to the Eighth Circuit, but, after filing its notice of appeal, revised the “accommodation” that was in place to permit religious organizations to self-certify using a written instrument to HHS as an alternative to using Form 700. Sharpe Holdings, 801 F.3d at 936. The Government called this the “augmented accommodation.” East Tex. Baptist Univ. v. Burwell, No. 15-35, Govt. Brief in Opposition (Sept. 2015), at 18. CNS and HCC argued that the new rule does “nothing more than coerce [them] into another avenue that violates their religion.” Sharpe Holdings, 801 F.3d at 936.
The Court of Appeals observed that the Government would impose substantial financial penalties to pressure plaintiffs to commit acts contrary to their religious consciences. Id. at 937-38. Following the analysis dictated by this Court in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the court concluded that the Government was substantially burdening the plaintiffs’ religious exercise. Sharpe Holdings, 801 F.3d at 937-43. The Court of Appeals deferred to the plaintiffs’ theological assessment of the morality of complying with the mandate, refusing to second-guess their religious beliefs concerning complicity in sin. Id. at 938-39. The Court of Appeals rejected the Government’s false contention that the plaintiffs were merely objecting to the acts of third parties, observing that the plaintiffs could not, consistent with their consciences, do what the Government was requiring them to do. Id. at 942.
The Court of Appeals also held that the Government failed to prove that imposing the mandate upon the
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::599 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 60 of 124 PageID #: 2003
3
plaintiffs was the least restrictive means of advancing a compelling governmental interest. Id. at 943-45. The court observed that the plaintiffs had identified various other, less restrictive ways the Government might pursue its interests, and that the Government had failed to prove the inadequacy of these alternatives. Id. at 945.
The decision of the Court of Appeals in favor of CNS and HCC created a split among the federal circuits, which had previously only ruled in favor of the Government in similar cases. See Michigan Catholic Conference & Catholic Family Servs. v. Burwell, 807 F.3d 738 (6th Cir. 2015); Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. 2015); Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015); Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151 (10th Cir.), cert. granted, Nos. 15-105 and 15-119 (Nov. 6, 2015); East Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir.), cert. granted, No. 15-35 (Nov. 6, 2015); Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015); University of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015); Zubik v. Burwell, 778 F.3d 422 (3d Cir.), cert. granted, Nos. 14-1418 and 15-191 (Nov. 6, 2015); Priests for Life v. HHS, 772 F.3d 229 (D.C. Cir. 2014), cert. granted, Nos. 14-1453 and 14-1505 (Nov. 6, 2015).
ARGUMENT CNS International Ministries, Inc. and Heartland Christian College do not oppose the Government’s request that the Court dispose of their petition in accordance with the forthcoming decision in Zubik v. Burwell, 778 F.3d 422, cert. granted, No. 14-1418 (Nov.
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 61 of 124 PageID #: 2004
4 6, 2015), and the consolidated cases.1 However, the persistent mischaracterizations in the Government’s petition—of how the alternative compliance mechanism works and of the Respondents’ arguments—warrant a brief response.
The Government repeatedly and incorrectly characterizes the accommodation as an “opt-out” and describes the objections of CNS and HCC as bearing on the actions of “third parties” and not their own. These characterizations must be nipped in the bud: “A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.” Tiller v. Atl. Coast Line R. Co., 318 U.S. 54, 68 (1943). “Metaphors in law are to be narrowly watched,” Justice Cardozo warned in Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94 (1926), and “[a] rule of law should not be drawn from a figure of speech.” McCollum v. Board of Education, 333 U.S. 203, 247 (1948) (Reed, J., dissenting).
1 The Eighth Circuit Court of Appeals issued its opinion on September 17, 2015. This Court granted certiorari in the cases from the other circuits on November 6, 2015. The Government then waited until the 89th day (December 15, 2015) after the Eighth Circuit’s decision in this case to file its petition for a writ of certiorari, making consolidation with the existing cases unlikely and effectively thwarting any possibility that CNS and HCC would be able to defend the Court of Appeals decision in their favor before this Court.
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5
I. The so-called accommodation is not an “optout.” The Government, over and over, characterizes the
accommodation as an “opt-out.” Pet. for Cert., pp. I, 5, 7, 8, 9, 10. This is not by convenience but as a form of argument: how can the Respondents object to merely saying they object?
The accommodation is not an opt-out, however, and neither the district court nor the Eighth Circuit Court of Appeals ever characterized it that way. Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Services, 2:12 CV 92 DDN, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013), aff’d, 801 F.3d 927 (8th Cir. 2015). The Government’s sleight of hand results in confounding rather than enlightening the issues presented.
The accommodation’s true nature is revealed when it is analyzed next to the Government’s offer of exemption for objecting churches. The church exemption requires nothing—objecting churches and their integrated auxiliaries simply do not have to comply with the contraceptive mandate. 45 C.F.R. 147.131(a). This is an opt-out.
The accommodation requires much more, in at least three related ways. First, to invoke the accommodation, HCC and CNS must inform either their Third-Party Administrator (TPA) or the Government that they are availing themselves of the accommodation. 79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014). Second, if HCC and CNS are availing themselves of the supposedly less restrictive written instrument that goes straight to the Government, they must identify their TPA therein. Id. Third, tying everything together, the Government then
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requires that the TPA provide or arrange for abortifacient coverage to employees of HCC and CNS. 29 C.F.R. 2590.715–2713A(b)(2); Wheaton College v. Burwell, 134 S. Ct. 2806, 2814 n.6 (2014) (Sotomayor, J., dissenting) (“Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid selfcertification.”). This is all of one package despite the Government’s attempt to claim otherwise.
This scheme creates a mirage of attenuation from the immoral act, but in the end the evildoing remains entirely dependent upon the actions of HCC and CNS.2 The moment HCC or CNS hires an employee, abortifacient coverage is guaranteed for that person whether the accommodation is utilized or not. And when the employment ends, the abortifacient coverage terminates with the rest of the insurance coverage.
The abortifacient coverage thus attaches as a parasite to the plan offered by CNS and HCC. Part of the employee compensation package—intended as a beneficence for the well-being of employees—is
2 Hobby Lobby forecloses the attenuation argument entirely. As the Court explained, this argument “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” 134 S. Ct. at 2778. After a plaintiff draws a line between religiously permissible and impermissible conduct, “‘it is not for [courts] to say that the line [is] an unreasonable one.’” Id. (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981)); see also Sharpe Holdings, 801 F.3d at 942 (rejecting attenuation argument).
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appropriated by the Government and turned into an act the Respondents believe is malum in se. The objectionable abortifacient coverage is actuated when individual employees are hired and is coterminous with their employment. The health plan of HCC and CNS is thus the integral sine qua non foundation of the Government’s mandate. This is exactly the facilitation of evil that the Respondents object to as a matter of sincerely held religious belief.
The Government has previously admitted in a similar challenge that the objectionable coverage is part of the objector’s health plan. See Transcript of Motions Hearing at 18, Dkt. 54, Roman Catholic Archbishop of Wash. v. Sebelius, No. 13-1441 (D.D.C. Nov. 22, 2013) (admitting that “technically, the [coverage] is part of [the religious objector’s] plan”); see also Id. at 16-17 (admitting that “services become available to the employees by virtue of their participation in the religious [objector’s] plan”); Sharpe Holdings, 801 F.3d at 942 (“Here, the third parties are TPAs, who will provide the objectionable coverage to CNS and HCC’s employees through the group health plan.”) (emphasis added).
The Government’s characterization of the accommodation as an opt-out is an attempt to frame this case as HCC and CNS taking an unreasonable position despite conciliatory efforts by the Government. This is not what has happened. Religious objectors like Respondents have asked to be left out of the provision of contraceptives (here, abortifacients) to their employees, and the Government’s only response has been to add another link in the causal chain between
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religious entities and the provision of contraceptives to employees. II. HCC and CNS ask not to prevent “third
parties” from providing contraceptive coverage to employees, but that they themselves be left out of the Government’s scheme. CNS and HCC have never sought “to prevent the government from arranging for third parties to provide separate coverage to [employees].” Pet. for Cert., pp. I, 10. But they do ask the courts to recognize that RFRA provides refuge from laws that dragoon them into participating, collaborating, and serving as an integral mechanism in the provision of coverage to their employees for abortifacient products, against religious conscience. CNS and HCC have pointed often to the Government’s “most straightforward” way of achieving its goals—just providing contraceptives itself through such mechanisms as Title X or tax incentives. Hobby Lobby, at 2780. Alternatively, CNS and HCC have argued that the Government could allow employees of religious objectors to obtain subsidized coverage from true third-parties on the Government’s own exchanges. The Government has assured the Nation’s young adults that using the exchanges “can be easy and fast” and “[doesn’t] take much time at all.” Healthcare.gov, “Why bother with health insurance?” https://www.healthcare. gov/young-adults/ready-to-apply/ (last visited Jan. 21, 2016). Instead of these approaches, the Government continues to insist that the only way the United States
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can satisfactorily distribute abortifacients is with the forced participation of CNS and HCC, their employee health insurance plan, and their TPA. The Government seeks to coerce CNS and HCC to participate by providing information about their plan and TPA, which the Government then exploits to coerce Respondents’ TPA to take action contrary to the terms of the plan and religious beliefs of CNS and HCC.
These TPAs are the “third parties” the Government refers to, as if they were autonomous from their relationship with Respondents and the health plans they, the TPAs, administer. In reality, the TPAs are agents of those that pay for the health plans, and entities such as CNS and HCC have established contractual relationships with their TPAs. Sharpe Holdings, 801 F.3d at 942 (“Here, the third parties are TPAs, who will provide the objectionable coverage to CNS and HCC’s employees through the group health plan.”) (emphasis added).
The objection of CNS and HCC is not to “third parties” or even the Government itself providing abortifacient coverage to affected women. Their objection is rather that, even under the augmented accommodation, any health plan of CNS and HCC must serve as a conduit or platform for the delivery of objectionable products and services to their plan beneficiaries. The TPA for CNS and HCC will provide the objectionable coverage to CNS and HCC employees only by virtue of their enrollment in the CNS and HCC plan and only so long as they are enrolled in that plan.
This is the facilitation, participation and complicity that Respondents object to as a matter of sincerely held religious beliefs, and those beliefs cannot be gainsaid
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by civil officials. Hobby Lobby, 134 S. Ct. at 2778 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981)).
CONCLUSION
This Court should hold the petition for a writ of certiorari in this case pending the decision in Zubik v. Burwell, No. 14-1418, and the consolidated cases, and then dispose of the petition as appropriate in light of the Court’s decision in those cases.
Respectfully submitted.
TIMOTHY BELZ Counsel of Record J. MATTHEW BELZ Ottsen, Leggat & Belz, L.C. 112 S. Hanley Road, Suite 200 St. Louis, Missouri 63105 (314) 726-2800 tbelz@olblaw.com jmbelz@olblaw.com

DAVID R. MELTON General Counsel for CNS International Ministries, Inc. and
Heartland Christian College 500 E. Ninth Street Kansas City, Missouri 64106 (816) 842-6300

JANUARY 2016

Counsel for Respondents

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Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, & 15-191 ================================================================
In The
Supreme Court of the United States
--------------------------------- i --------------------------------DAVID A. ZUBIK, ET AL.,
Petitioners, v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., Respondents. --------------------------------- i --------------------------------On Writs Of Certiorari To The United States Courts Of Appeals For The Third, Fifth, Tenth, And District Of Columbia Circuits --------------------------------- i ---------------------------------
BRIEF OF CNS INTERNATIONAL MINISTRIES, INC. AND HEARTLAND CHRISTIAN COLLEGE AS AMICI CURIAE IN SUPPORT OF PETITIONERS
--------------------------------- i --------------------------------TIMOTHY BELZ Counsel of Record J. MATTHEW BELZ OTTSEN, LEGGAT & BELZ, L.C. 112 S. Hanley Road, Suite 200 St. Louis, Missouri 63105 (314) 726-2800 tbelz@olblaw.com jmbelz@olblaw.com DAVID R. MELTON General Counsel for CNS International Ministries, Inc. and Heartland Christian College 500 E. Ninth Street Kansas City, Missouri 64106 (816) 842-6300 Counsel for Amici Curiae
================================================================
Exhibit 4
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CORPORATE DISCLOSURE STATEMENT Both CNS International Ministries, Inc. and Heartland Christian College are religious nonprofit corporations that have no parent corporations. Neither is subject to ownership of any kind by any other corporation.
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TABLE OF CONTENTS Page
CORPORATE DISCLOSURE STATEMENT ....... i TABLE OF AUTHORITIES ................................. iii INTEREST OF THE AMICI CURIAE................. 1 SUMMARY OF THE ARGUMENT...................... 2 ARGUMENT ........................................................ 4
THE GOVERNMENT HAS EIGHT TIMES CLAIMED THAT ITS THEN-CURRENT VERSION OF THE MANDATE WAS THE LEAST RESTRICTIVE MEANS AND EACH TIME THEREAFTER ADMITTED THAT LESS RESTRICTIVE MEANS EXIST ............. 4 I. The Religious Employer (Church) Ex-
emption and Its Revisions ......................... 4 II. The Temporary Enforcement Safe Harbor ... 7 III. The “Accommodation”................................ 11 IV. The Augmented “Accommodation” ............ 14 V. The “Accommodation” for For-Profit En-
tities ........................................................... 15 CONCLUSION..................................................... 16
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TABLE OF AUTHORITIES Page
CASES: Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751 (2014) ...................................... 11, 13, 15, 16, 17 Little Sisters of the Poor v. Sebelius, 134 S. Ct.
1022 (2014) ..............................................................13 Sharpe Holdings, Inc. v. U.S. Dept. of Health &
Human Services, 2:12 CV 92 DDN, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013), aff ’d, 801 F.3d 927 (8th Cir. 2015) ........................................1, 2 Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014) .......................................................................13
STATUTES AND REGULATIONS: Health Care and Education Reconciliation Act
of 2010, Public Law 111-152 .....................................2 Patient Protection and Affordable Care Act,
Public Law 111-148 ...................................................2 26 C.F.R. 54.9815-2713A ......................................12, 14 26 U.S.C. 6033 ......................................................5, 6, 7 29 C.F.R. 2590.715-2713A ..........................................12 42 U.S.C. 2000bb-1 .......................................................2 42 U.S.C. 2000bb-3 .......................................................4 45 C.F.R. 147.131....................................................7, 12
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TABLE OF AUTHORITIES – Continued Page
MISCELLANEOUS: 75 Fed. Reg. 41726 (July 19, 2010) ..............................5 76 Fed. Reg. 46621 (Aug. 3, 2011)................................5 77 Fed. Reg. 8725 (Feb. 15, 2012) ............................6, 8 78 Fed. Reg. 39870 (July 2, 2013) .................... 7, 11, 12 79 Fed. Reg. 51092 (Aug. 27, 2014) ...........................14 79 Fed. Reg. 51118 (Aug. 27, 2014) ............................15 Advance Notice Of Proposed Rulemaking
(Anprm) (March, 21, 2012), https://www. federalregister.gov/articles/2012/03/21/20126689/certain-preventive-services-under-theaffordable-care-act ....................................................9 Alden J. Bianchi, “HHS/CCIIO Revises Temporary Enforcement Safe Harbor on Contraceptive Coverage Offered by Religiously Affiliated Tax-Exempt Entities,” https://www. mintz.com/newsletter/2012/Advisories/21940812-NAT-ELB/index.html ............................... 10, 11 Guidance on the Temporary Enforcement Safe Harbor, Feb. 10, 2012, http://www.nacua.org/ documents/HHS_HealthInsurance_Guidance. pdf ..............................................................................9 Guidance on the Temporary Enforcement Safe Harbor, June 28, 2013, https://www.cms.gov/ CCIIO/Resources/Regulations-and-Guidance/ Downloads/preventive-services-guidance-6-282013.pdf ...................................................................11
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TABLE OF AUTHORITIES – Continued Page
Healthcare.gov, “Why bother with health insurance?” https://www.healthcare.gov/youngadults/ready-to-apply/ .............................................17
Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame L. Rev. 2179 (2012) ..................6
Women’s Preventive Services Coverage and Non-Profit Religious Organizations, https:// www.cms.gov/cciio/resources/fact-sheets-andfaqs/womens-preven-02012013.html ...................... 15
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INTEREST OF THE AMICI CURIAE1 CNS International Ministries, Inc. (CNS Ministries) and Heartland Christian College (HCC) are nonprofit religious organizations that offer healthcare coverage to employees through a self-insured plan. CNS Ministries and HCC, in accordance with their sincerely held religious beliefs, oppose the use, funding, provision, or support of abortion on demand, and they believe that certain contraceptives required under the contraceptive mandate – Plan B, ella, and copper IUDs – can and do cause abortions on demand. CNS Ministries and HCC challenged the mandate and the so-called “accommodation” for religious nonprofits in the District Court for the Eastern District of Missouri, and obtained an injunction against enforcement of the mandate against them. Sharpe Holdings, Inc. v. U.S. Dept. of Health & Human Services, 2:12 CV 92 DDN, 2013 WL 6858588, at *3 (E.D. Mo. Dec. 30, 2013), aff ’d, 801 F.3d 927 (8th Cir. 2015). The Government appealed to the Eighth Circuit Court of Appeals, which affirmed the district court’s decision, including ruling in favor of CNS Ministries and HCC as to the “accommodation”
1 The parties consented to this filing. Their letters of consent are on file with the Clerk. In accordance with Rule 37.6, amici state that no counsel for any party authored this brief in whole or in part, and that no person or entity, other than the amici and their counsel, has contributed monetarily to the brief ’s preparation or submission.
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as it had been augmented in 2014. Id. The Government filed a petition for a writ of certiorari in the Supreme Court, No. 15-775 (Dec. 15, 2014), and asked the Court to hold it pending the Court’s decision in Zubik v. Burwell and the consolidated cases. The Government’s delay in filing its petition until 89 days after the decision of the Court of Appeals made consolidation with the existing cases unlikely and effectively thwarted any possibility that CNS Ministries and HCC would be able to defend the Eighth Circuit’s decision in their favor before this Court.
The interest of the amici curiae is in the preservation of their injunction as affirmed by the Court of Appeals.
--------------------------------- i ---------------------------------
SUMMARY OF THE ARGUMENT The Religious Freedom Restoration Act (RFRA) requires the Government to show that the contraceptive mandate is “the least restrictive means of furthering [its] compelling governmental interest.” 42 U.S.C. 2000bb-1(b)(2). Since the Patient Protection and Affordable Care Act (ACA)2 was enacted in March of 2010, the means by which the Government enforces its regulatory
2 The ACA consists of the Patient Protection and Affordable Care Act, Public Law 111-148, and the Health Care and Education Reconciliation Act of 2010, Public Law 111-152.
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contraceptive mandate has been altered at least eight times. Each time, prior to amendment, the Government had insisted that it was already employing the least restrictive means of furthering its interests.
At first, opposition from individual and corporate religious objectors forced the Government to back off. At each of the remaining stages of the Government’s regulatory retreat, courts, high and low, have found the Government’s least-restrictive-means iterations to come up short.
Each time the contraceptive mandate has been altered to address religious concerns, detailed infra, the Government’s prior claim that it was employing the least restrictive means has been proven wrong. The Government has again and again backed off, but only as little as possible each time. The Government has not taken RFRA’s least restrictive means requirement seriously but instead has repeatedly tried to use the most restrictive means it can get away with.
The Government now claims that, after eight stingy, parsimonius backward steps, it has again identified the absolutely irreducible least restrictive means of enforcing its regulatory contraceptive mandate. Given the panoply of alternative means still available to and untried by the Government, its current version is no more credible than those rejected in the past.
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ARGUMENT THE GOVERNMENT HAS EIGHT TIMES CLAIMED THAT ITS THEN-CURRENT VERSION OF THE MANDATE WAS THE LEAST RESTRICTIVE MEANS AND EACH TIME THEREAFTER ADMITTED THAT LESS RESTRICTIVE MEANS EXIST.
Since 2010, the Government has successively claimed, at least eight times, that the then-current version of the contraceptive mandate was the least restrictive means of furthering governmental interests. These claims have been followed by public outcries and court cases, which in turn have been followed by the Government successively admitting that less restrictive means indeed exist and would be utilized. This history, detailed infra, undermines any claim by the Government today that it has presented objecting religious claimants or the Court with the least restrictive means.
I. The Religious Employer (Church) Exemption and Its Revisions Presumably, the contraceptive mandate, as orig-
inally promulgated in 2010, was considered by the Government to be the least restrictive means of achieving its interests. RFRA and its least restrictive means test, “appl[y] to all Federal law, and the implementation of that law, whether statutory or otherwise . . . ” 42 U.S.C. 2000bb-3. Accordingly, the Government was obligated to employ the least restrictive means in its enforcement of the contraceptive
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mandate from the beginning, and citizens have had a right since the interim final rules establishing the mandate were published, in July 2010 (75 Fed. Reg. 41726), to expect the Government to do so.
In August 2011, however, the Government acknowledged that the contraceptive mandate burdens religious exercise, and it announced a narrow exemption for houses of worship. This appears to be the result of “considerable feedback” from commenters, including from “religious employers.” 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). “In the Departments’ view, it is appropriate that HRSA [Health Resources and Services Administration], in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” Id.
The amended interim final regulations specified that, for purposes of this exemption, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the U.S. Code. Section 6033(a)(3)(A)(i) and (iii) of the Code refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any
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religious order. 26 U.S.C. 6033(a)(3)(A)(i), (iii); 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
The Government specifically stated that RFRA and the least restrictive means test were satisfied by the religious employer exemption:
Likewise, this approach complies with the Religious Freedom Restoration Act, which generally requires a federal law to not substantially burden religious exercise, or, if it does substantially burden religious exercise, to be the least restrictive means to further a compelling government interest. Id. at 8729. The Government assumed the religious exemption would take care of any religious concerns. The Government claimed, after its false start in 2010, to have determined the least restrictive means for furthering its interests. But the exemption was soon shown to be far too narrow. As the head of Catholic Charities USA observed, “the ministry of Jesus Christ himself ” would not qualify for the exemption given that he did not confine his ministry to co-religionists.3 In response to complaints such as these, the Government found in July 2013 that it did have a less restrictive means for accomplishing its interest,
3 Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame L. Rev. 2179, 2180 (2012).
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and it broadened the religious exemption to include, essentially, just the fourth prong of the original test: “a ‘religious employer’ is an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. 147.131. This means the exemption applied to churches and their integrated auxiliaries, without further inquiry.
Previously, churches that ran schools and soup kitchens would not have qualified for the exemption, as their charity was not limited to serving people of their own faith. “Specifically,” the Government states in the Federal Registry, “[these changes] were intended to ensure that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. 39870, 39874 (July 2, 2013).
II. The Temporary Enforcement Safe Harbor The religious exemption, even as broadened, left
the vast majority of religious nonprofits unprotected against the mandate. A religiously-oriented food bank, for instance, was not a church and therefore was subject to the mandate unless another exemption applied.
Before broadening the religious employer (church) exemption in 2013 (see Section I supra), the Government had altered its course another way and
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instituted a “temporary enforcement safe harbor” for certain religious nonprofits. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012). With the “temporary safe harbor,” the Government promised not to enforce the mandate against religious nonprofits for at least 18 months. The safe harbor was made available to entities that satisfied all of the following criteria:
1. The organization is organized and operates as a nonprofit entity.
2. From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
3. The group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide to participants a notice which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 1-3 above, and documents
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its self-certification in accordance with the procedures detailed herein.4 During this safe harbor period, on March 21, 2012, the Government proposed a permanent “accommodation” for certain religious nonprofits.5 The proposed accommodation would require health insurance issuers of objecting nonprofits to provide contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing.6 On August 15, 2012, the Government admitted, in response to lawsuits, that the safe harbor was too narrow, and so it again found less restrictive means for achieving its interests and broadened the safe harbor to include additional organizations. The Government “clarified” three points: 1. That the “safe harbor is also available to nonprofit organizations with religious objections to some but not all contraceptive coverage . . . ” 2. That “group health plans that took some action to try to exclude or limit
4 Guidance on the Temporary Enforcement Safe Harbor, Feb. 10, 2012, http://www.nacua.org/documents/HHS_HealthInsurance_ Guidance.pdf (last visited Jan. 3, 2016).
5 Advance Notice Of Proposed Rulemaking (Anprm) (March 21, 2012), https://www.federalregister.gov/articles/2012/03/21/20126689/certain-preventive-services-under-the-affordable-care-act (last visited Jan. 4, 2016).
6 Id.
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contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . . ” 3. That the “safe harbor may be invoked without prejudice by nonprofit organizations that are uncertain whether they qualify for the religious employer [church] exemption . . . ”7 Although billed as a clarification, the changes were significant. The first bullet point expanded the safe harbor to entities that did not object to all “contraceptives,” such as the many Protestant organizations that do not religiously oppose birth control pills but do oppose the morning after pill. The change offered in the second bullet point is also important, as the clarification to which it refers reads as follows: With respect to the second criterion above, the following exception applies. A group health plan will be considered not to have provided all or the same subset of the contraceptive coverage otherwise required if it took some action to try to exclude or limit such coverage that was not successful as of February 10, 2012. Accordingly, such coverage will not disqualify an employer, a group
7 Alden J. Bianchi, “HHS/CCIIO Revises Temporary Enforcement Safe Harbor on Contraceptive Coverage Offered by Religiously Affiliated Tax-Exempt Entities,” https://www.mintz. com/newsletter/2012/Advisories/2194-0812-NAT-ELB/index.html (last visited Jan. 3, 2015).
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health plan, or a group health insurance issuer from eligibility for the safe harbor.”8 On June 28, 2013, with the safe harbor about to expire, the Government admitted that the mandate was still burdening nonprofit religious organizations, so it extended the safe harbor for another six months (now totaling two years).9
III. The “Accommodation” The same rules that extended the temporary
enforcement safe harbor also created the “accommodation” for religious nonprofits, first officially proposed in March 2012 (discussed supra).10 Under the “accommodation,” an insurance issuer was required to exclude contraceptive coverage from the employer’s plan and provide plan participants with coverage for contraceptive services separately without imposing any cost-sharing requirements on the employer, its insurance plan, or its employee beneficiaries. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2755 (2014).
To take advantage of the accommodation, the religious nonprofit would have to self-certify, using a
8 Id. 9 Guidance on the Temporary Enforcement Safe Harbor, June 28, 2013, https://www.cms.gov/CCIIO/Resources/Regulationsand-Guidance/Downloads/preventive-services-guidance-6-28-2013.pdf (last visited Jan. 3, 2015); 78 Fed. Reg. 39870 (July 2, 2013). 10 Id.
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form provided by the Government, that it was eligible for the accommodation and inform its insurance issuers and third-party administrator (TPA) about the objection. 45 C.F.R. 147.131(b); see 29 C.F.R. 2590.715-2713A(a); 26 C.F.R. 54.9815-2713A(a); 78 Fed. Reg. at 39874-75. According to the Government, “the accommodations for eligible organizations under these final regulations do not violate RFRA because they do not substantially burden religious exercise, and they serve compelling government interests and moreover are the least restrictive means to achieve those interests.” 78 Fed. Reg. at 39886-87.
Nonprofits who opposed the mandate found no comfort in the “accommodation”:
[T]he government has fundamentally misconstrued the plaintiffs’ religious objections: “Plaintiffs’ religious objection is not only to the use of contraceptives, but also being required to actively participate in a scheme to provide such services.” Roman Catholic Archdiocese of N.Y., 2013 WL 6579764, at *14. The accommodation requires objectors themselves to sign a form that is, “in effect, a permission slip.” S. Nazarene Univ., 2013 WL 6804265, at *8. . . . [B]ecause Wheaton views completing the self-certification itself as forbidden complicity with the government’s scheme, “regardless of the effect of plaintiffs’ TPAs, the regulations still require plaintiffs to take actions they believe are contrary to their religion.”
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Wheaton v. Burwell, Emergency Application for Injunction, 13A1284 (U.S. June 29, 2014) at 31.
The Government responded that the accommodation, as effected by using the self-certification form and providing it to the insurance issuer or third-party administrator, was the least restrictive means of serving its interests. Wheaton v. Burwell, Memorandum in Opposition, 13A1284 (U.S. July 2, 2014) at 31.
On July 3, 2014, the Supreme Court entered its order regarding Wheaton College’s application for an emergency injunction against enforcement of the mandate, including the accommodation. Wheaton Coll. v. Burwell, 134 S. Ct. 2806, 2807 (2014). “The Circuit Courts,” the Court said, “have divided on whether to enjoin the requirement that religious nonprofit organizations use EBSA Form 700.” The Court ruled that Wheaton College did not have to use the form, but could merely “inform[ ] the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services” and it would be entitled to an injunction against enforcement of the mandate, pending appeal. Id. at 2807.
After the Supreme Court order in Wheaton College, as well as those in Little Sisters of the Poor v. Sebelius, 134 S. Ct. 1022 (2014) and Hobby Lobby, 134 S. Ct. 2751 (2014), the Government admitted that the then-current accommodation needed to be
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changed, and that it would issue new regulations to “augment” it.11
IV. The Augmented “Accommodation” Under the augmented rules, published August
27, 2014, a religious objector whom the Government has chosen not to exempt need not notify its health insurer or TPA of its objection to the mandate; instead, if it does not follow that procedure, it “must” submit to the Government a form or notice identifying its religious objection, the name and type of its health plan, and – for the first time – “the name and contact information for any of the plan’s [TPAs].” 79 Fed. Reg. 51092, 51094-95 (Aug. 27, 2014). The rules dictate that then the Government “will send a separate notification to” the religious organization’s TPA creating the TPA’s obligation to deliver emergency contraceptives to participants in the religious organization’s health plan. Id. at 51095, 51098; see 26 C.F.R. 54.9815-2713A(b)(1)(ii)(B).
So Form 700, the centerpiece of the Government’s previous attempt at satisfying the least restrictive means test, was now paired with an alternative – instead of sending the form to a health insurer or TPA and knowing that it would initiate contraceptive coverage, an objector could identify its insurer or TPA
11 Little Sisters of the Poor v. Burwell, Supplemental Gov’t Brief, Nos. 13-1540, 14-6026, 14-6028 (10th Cir. July 22, 2014) at 11.
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to the Government knowing that the insurer or TPA would then be directed to initiate contraceptive coverage. The Government calls this an “additional notification option.”12
This augmented accommodation is the latest offering by the Government to convince objectors and the courts that it is satisfying its obligations under the least restrictive means test.
V. The “Accommodation” for For-Profit Entities The augmented accommodation has also been
made available to closely-held for-profit entities that object to the mandate on religious grounds. 79 Fed. Reg. 51118, 51121 (Aug. 27, 2014). This accommodation was offered in the wake of the Supreme Court holding that the mandate did not pass the least restrictive means test. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780-83 (2014). The Government had argued for two years that the mandate as originally applied to for-profit entities was the least restrictive means of furthering governmental interests. See, e.g., Sharpe Holdings v. U.S. Dept. of Health & Human Services, Gov’t brief, Doc. 14 at 2425 (E.D. Mo. Dec. 28, 2012); Burwell v. Hobby Lobby
12 Women’s Preventive Services Coverage and Non-Profit Religious Organizations, https://www.cms.gov/cciio/resources/factsheets-and-faqs/womens-preven-02012013.html (last visited Jan. 6, 2015).
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Stores, Inc., Govt. Cert. Pet. at 17 (U.S. Sept. 2013); Burwell v. Hobby Lobby Stores, Inc., 13-354, Govt. Brief at 57-58 (U.S. Sept. 2013); Conestoga Wood Specialties v. Burwell, Petitioners’ Brief, No. 13-356, at 55-57 (U.S. Feb. 2014).
--------------------------------- i ---------------------------------
CONCLUSION The Government continues its retreat from the original means by which it sought to further its interests. After at least eight modifications, it now claims that the least restrictive means is the augmented accommodation. This results from the Government’s clinging to language in Hobby Lobby that the accommodation was a less restrictive means than the mandate in effect at the time against for-profit businesses. But “less” is not “least.” Indeed, the Court found that the “most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780 (2014). This “most straightforward way” could easily be implemented by using the “established framework” (Id. at 2786 (Kennedy, J., concurring)) of ACA health insurance exchanges. This would not impose a “whole new program” on the Government. Id. The Government has assured the Nation’s young adults that using the
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exchanges “can be easy and fast” and “[doesn’t] take much time at all.”13
The Government has eschewed this option,14 without any explanation, establishing instead a stubborn and persistent record of avoiding the least restrictive means and instead employing the most restrictive means it can get away with.
The decisions of the courts below in favor of the Government should be reversed.
Respectfully submitted. TIMOTHY BELZ Counsel of Record J. MATTHEW BELZ OTTSEN, LEGGAT & BELZ, L.C. 112 S. Hanley Road, Suite 200 St. Louis, Missouri 63105 (314) 726-2800 tbelz@olblaw.com jmbelz@olblaw.com
13 Healthcare.gov, “Why bother with health insurance?” https://www.healthcare.gov/young-adults/ready-to-apply/ (last visited Jan. 6, 2015).
14 Other options that would not require the Government to go outside an “established framework” or start a “whole new program” (134 S. Ct. at 2786 (Kennedy, J., concurring)) include, for instance, expansion of Title X, Medicaid or tax incentives.
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JANUARY 2016

DAVID R. MELTON General Counsel for CNS
International Ministries, Inc. and Heartland Christian College 500 E. Ninth Street Kansas City, Missouri 64106 (816) 842-6300
Counsel for Amici Curiae

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USAO ATTORNEY’S FEES MATRIX – 2015 – 2017

Revised Methodology starting with 2015-2016 Year

Years (Hourly Rate for June 1 – May 31, based on change in PPI-OL since January 2011)

Experience 2015-16 2016-17

31+ years

568

581

21-30 years

530

543

16-20 years

504

516

11-15 years

455

465

8-10 years

386

395

6-7 years

332

339

4-5 years

325

332

2-3 years

315

322

Less than 2

284

291

years

Paralegals &

154

157

Law Clerks

Explanatory Notes

1.

This matrix of hourly rates for attorneys of varying experience levels and paralegals/law clerks has been prepared by

the Civil Division of the United States Attorney's Office for the District of Columbia (USAO) to evaluate requests for

attorney’s fees in civil cases in District of Columbia courts. The matrix is intended for use in cases in which a fee-

shifting statute permits the prevailing party to recover “reasonable” attorney’s fees. See, e.g., 42 U.S.C. § 2000e-5(k)

(Title VII of the 1964 Civil Rights Act); 5 U.S.C. § 552(a)(4)(E) (Freedom of Information Act); 28 U.S.C. § 2412(b)

(Equal Access to Justice Act). The matrix has not been adopted by the Department of Justice generally for use

outside the District of Columbia, or by other Department of Justice components, or in other kinds of cases. The

matrix does not apply to cases in which the hourly rate is limited by statute. See 28 U.S.C. § 2412(d).

2.

A “reasonable fee” is a fee that is sufficient to attract an adequate supply of capable counsel for meritorious cases.

See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). Consistent with that definition, the hourly rates

in the above matrix were calculated from average hourly rates reported in 2011 survey data for the D.C. metropolitan

area, which rates were adjusted for inflation with the Producer Price Index-Office of Lawyers (PPI-OL) index. The

survey data comes from ALM Legal Intelligence’s 2010 & 2011 Survey of Law Firm Economics. The PPI-OL index

is available at http://www.bls.gov/ppi. On that page, under “PPI Databases,” and “Industry Data (Producer Price

Index - PPI),” select either “one screen” or “multi-screen” and in the resulting window use “industry code” 541110

for “Offices of Lawyers” and “product code” 541110541110 for “Offices of Lawyers.” The average hourly rates

from the 2011 survey data are multiplied by the PPI-OL index for May in the year of the update, divided by 176.6,

which is the PPI-OL index for January 2011, the month of the survey data, and then rounding to the nearest whole

dollar (up if remainder is 50¢ or more).

3.

The PPI-OL index has been adopted as the inflator for hourly rates because it better reflects the mix of legal services

that law firms collectively offer, as opposed to the legal services that typical consumers use, which is what the CPI-

Exhibit 5
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Legal Services index measures. Although it is a national index, and not a local one, cf. Eley v. District of Columbia, 793 F.3d 97, 102 (D.C. Cir. 2015) (noting criticism of national inflation index), the PPI-OL index has historically been generous relative to other possibly applicable inflation indexes, and so its use should minimize disputes about whether the inflator is sufficient.

4.

The methodology used to compute the rates in this matrix replaces that used prior to 2015, which started with the

matrix of hourly rates developed in Laffey v. Northwest Airlines, Inc. 572 F. Supp. 354 (D.D.C. 1983), aff’d in part,

rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), cert. denied, 472 U.S. 1021 (1985), and then adjusted

those rates based on the Consumer Price Index for All Urban Consumers (CPI-U) for the Washington-Baltimore

(DC-MD-VA-WV) area. Because the USAO rates for the years 2014-15 and earlier have been generally accepted as

reasonable by courts in the District of Columbia, see note 9 below, the USAO rates for those years will remain the

same as previously published on the USAO’s public website. That is, the USAO rates for years prior to and

including 2014-15 remain based on the prior methodology, i.e., the original Laffey Matrix updated by the CPI-U for

the Washington-Baltimore area. See Citizens for Responsibility & Ethics in Washington v. Dep’t of Justice, --- F.

Supp. 3d ---, 2015 WL 6529371 (D.D.C. 2015) and Declaration of Dr. Laura A. Malowane filed therein on Sept. 22,

2015 (Civ. Action No. 12-1491, ECF No. 46-1) (confirming that the USAO rates for 2014-15 computed using

prior methodology are reasonable).

5.

Although the USAO will not issue recalculated Laffey Matrices for past years using the new methodology, it will not

oppose the use of that methodology (if properly applied) to calculate reasonable attorney’s fees under applicable fee-

shifting statutes for periods prior to June 2015, provided that methodology is used consistently to calculate the entire

fee amount. Similarly, although the USAO will no longer issue an updated Laffey Matrix computed using the prior

methodology, it will not oppose the use of the prior methodology (if properly applied) to calculate reasonable

attorney’s fees under applicable fee-shifting statutes for periods after May 2015, provided that methodology is used

consistently to calculate the entire fee amount.

6.

The various “brackets” in the column headed “Experience” refer to the attorney’s years of experience practicing law.

Normally, an attorney’s experience will be calculated starting from the attorney’s graduation from law school. Thus,

the “Less than 2 years” bracket is generally applicable to attorneys in their first and second years after graduation

from law school, and the “2-3 years” bracket generally becomes applicable on the second anniversary of the

attorney’s graduation (i.e., at the beginning of the third year following law school). See Laffey, 572 F. Supp. at 371.

An adjustment may be necessary, however, if the attorney’s admission to the bar was significantly delayed or the

attorney did not otherwise follow a typical career progression. See, e.g., EPIC v. Dep’t of Homeland Sec., 999

F. Supp. 2d 61, 70-71 (D.D.C. 2013) (attorney not admitted to bar compensated at “Paralegals & Law Clerks” rate);

EPIC v. Dep’t of Homeland Sec., 982 F. Supp. 2d 56, 60-61 (D.D.C. 2013) (same). The various experience levels

were selected by relying on the levels in the ALM Legal Intelligence 2011 survey data. Although finer gradations in

experience level might yield different estimates of market rates, it is important to have statistically sufficient

sample sizes for each experience level. The experience categories in the current USAO Matrix are based on

statistically significant sample sizes for each experience level.

7.

ALM Legal Intelligence’s 2011 survey data does not include rates for paralegals and law clerks. Unless and until

reliable survey data about actual paralegal/law clerk rates in the D.C. metropolitan area become available, the USAO

will compute the hourly rate for Paralegals & Law Clerks using the most recent historical rate from the USAO’s

former Laffey Matrix (i.e., $150 for 2014-15) updated with the PPI-OL index. The formula is $150 multiplied by the

PPI-OL index for May in the year of the update, divided by 194.3 (the PPI-OL index for May 2014), and then

rounding to the nearest whole dollar (up if remainder is 50¢ or more).

8.

The USAO anticipates periodically revising the above matrix if more recent reliable survey data becomes available,

especially data specific to the D.C. market, and in the interim years updating the most recent survey data with the

PPI-OL index, or a comparable index for the District of Columbia if such a locality-specific index becomes available.

9.

Use of an updated Laffey Matrix was implicitly endorsed by the Court of Appeals in Save Our Cumberland

Mountains v. Hodel, 857 F.2d 1516, 1525 (D.C. Cir. 1988) (en banc). The Court of Appeals subsequently stated that

parties may rely on the updated Laffey Matrix prepared by the USAO as evidence of prevailing market rates for

litigation counsel in the Washington, D.C. area. See Covington v. District of Columbia, 57 F.3d 1101, 1105 & n.14,

1109 (D.C. Cir. 1995), cert. denied, 516 U.S. 1115 (1996). Most lower federal courts in the District of Columbia

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have relied on the USAO Matrix, rather than the so-called “Salazar Matrix” (also known as the “LSI Matrix” or the “Enhanced Laffey Matrix”), as the “benchmark for reasonable fees” in this jurisdiction. Miller v. Holzmann, 575 F. Supp. 2d 2, 18 n.29 (D.D.C. 2008) (quoting Pleasants v. Ridge, 424 F. Supp. 2d 67, 71 n.2 (D.D.C. 2006)); see, e.g., Joaquin v. Friendship Pub. Charter Sch., --- F. Supp. 3d ---, 2016 WL 3034151 (D.D.C. 2016); Prunty v. Vivendi, --F. Supp. 3d ---, 2016 WL 3659889 (D.D.C. 2016); CREW v. U.S. Dep’t of Justice, --- F. Supp. 3d ---, 2015 WL 6529371 (D.D.C. 2015); McAllister v. District of Columbia, 21 F. Supp. 3d 94 (D.D.C. 2014); Embassy of Fed. Republic of Nigeria v. Ugwuonye, 297 F.R.D. 4, 15 (D.D.C. 2013); Berke v. Bureau of Prisons, 942 F. Supp. 2d 71, 77 (D.D.C. 2013); Fisher v. Friendship Pub. Charter Sch., 880 F. Supp. 2d 149, 154-55 (D.D.C. 2012); Sykes v. District of Columbia, 870 F. Supp. 2d 86, 93-96 (D.D.C. 2012); Heller v. District of Columbia, 832 F. Supp. 2d 32, 40-49 (D.D.C. 2011); Hayes v. D.C. Public Schools, 815 F. Supp. 2d 134, 142-43 (D.D.C. 2011); Queen Anne’s Conservation Ass’n v. Dep’t of State, 800 F. Supp. 2d 195, 200-01 (D.D.C. 2011); Woodland v. Viacom, Inc., 255 F.R.D. 278, 279-80 (D.D.C. 2008); American Lands Alliance v. Norton, 525 F. Supp. 2d 135, 148-50 (D.D.C. 2007). But see, e.g., Salazar v. District of Columbia, 123 F. Supp. 2d 8, 13-15 (D.D.C. 2000). The USAO contends that the Salazar Matrix is fundamentally flawed, does not use the Salazar Matrix to determine whether fee awards under feeshifting statutes are reasonable, and will not consent to pay hourly rates calculated with the methodology on which that matrix is based.
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IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

DECLARATION OF TIMOTHY BELZ I, Timothy Belz, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am a principal in the law firm of Ottsen, Leggat & Belz, L.C. in Clayton, Missouri. My current curriculum vitae is attached hereto and incorporated herein. 2. I have been admitted to the Missouri bar and the U.S. District Court for the Eastern District of Missouri since 1982. I have been admitted to the Eighth Circuit Court of Appeals since 1983 and the U.S. Supreme Court since 1985. 3. A central concentration of my practice since 1982 has been in constitutional law. Since then, I have been responsible for major civil rights cases under 42 U.S.C. 1983 in federal district court in Missouri and Illinois, and in other
Exhibit 6
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federal and state cases that involved the constitutional rights of individuals. Some of those cases which have been officially reported are listed in the attached curriculum vitae.
4. I am generally familiar with the rates charged by Missouri and St. Louis lawyers in litigation, including constitutional and civil rights cases wherein attorney fees awards are applicable pursuant to 42 U.S.C. 1988.
5. As the curricula vitae of Professor Carl Esbeck and mine show, we each have more than 30 years experience in constitutional law, with a particular emphasis on religious liberty. He and I both have national reputations in this area of the law. J. Matthew Belz, a partner of mine, has authored dozens of substantive briefs in civil rights cases, including those dealing especially with religious liberty.
6. Based on my experience and knowledge of the St. Louis legal marketplace, hourly rates of $450.00 for Carl Esbeck and me and $250.00 for Matthew Belz are at or below market norms for prevailing rates charged in constitutional civil rights cases for lawyers of our skill and experience. This is particularly so with respect to a case involving religious liberties and brought under the Religious Freedom Restoration Act (“RFRA”), which is similar to, if not for all practical purposes the equivalent of, a Section 1983 civil rights case. In either case, fees and expenses are awarded under 42 U.S.C. 1988.
2
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7. In the case at bar, the hours I report in the invoices submitted to the Court represent substantially fewer hours than I actually spent on this matter.
VERIFICATION Declaration of Timothy Belz in Lieu of Affidavit pursuant to 28 U.S.C. § 1746: I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and correct. Executed November 3, 2017.
/s/ Timothy Belz Timothy Belz
3
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TIMOTHY BELZ, ESQ. OTTSEN, LEGGAT & BELZ, L.C.
112 SOUTH HANLEY ST. LOUIS, MISSOURI 63105
314/726-2800 FAX 314/863-3821 tbelz@olblaw.com

EMPLOYMENT

Ottsen, Leggat & Belz, L.C. (formerly Ottsen, Mauzé, Leggat & Belz, L.C.) 1995-present

St. Louis, Missouri

A partner, specializing in litigation, including appeals, since July 1995. Have handled a variety of commercial, probate dispute and constitutional cases.

Belz Jones & Hickel P.C. (and predecessor firms) 1982-1995

St. Louis, Missouri

Specialized in litigation, including appeals, for this firm and its predecessors, handling a wide variety of commercial, constitutional and probate dispute cases.

Antitrust Division, U.S. Department of Justice Trial Attorney, 1977-1981

Atlanta, Georgia

Recipient of Special Achievement Award, awarded by Attorney General Benjamin Civiletti in 1980.

Was part of 10-15 lawyer field office of the Antitrust Division with responsibility for prosecuting price-fixing and bid-rigging cases in Southeastern United States. Was actively involved in investigating and trying a variety of such cases, including but not limited to gasoline price fixing, contract hardware bid rigging, highway construction bid rigging and customer allocation, and other per se violations of the Sherman Act.

EDUCATION

University of Iowa College of Law J.D., 1976

Iowa City, Iowa

Order of the Coif Graduated with high distinction Top ten percent

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BAR MEMBERSHIP, PROFESSIONAL AFFILIATIONS, PROFESSIONAL RECOGNITION, ETC.
Admitted to Practice in Missouri, Georgia and Iowa, United States District Court for the Eastern District of Missouri, Eighth Circuit Court of Appeals, United States Supreme Court
Martindale-Hubbell Peer Review Rated AV Preeminent 5.0 out of 5 (highest rating possible for competence and ethics)
Influential Appellate Advocate Award, 2017, Missouri Lawyers Weekly, for representing CNS Int’l Ministries, Inc. and Heartland Christian College in the Eighth Circuit Court of Appeals in 2015.
Missouri Attorney of the Year (one of ten), 2004, Missouri Lawyers Weekly
Missouri & Kansas Super Lawyers 2005 (Clayton, Missouri)
Board Member, Christian Legal Society, Springfield, Virginia, 2001-2010
Committee Member, Center for Law and Religious Freedom, Christian Legal Society, Springfield, Virginia, 1999-present
REPRESENTATIVE CASES (NOT EXHAUSTIVE):
Wieland v. U.S. Dept. of Health and Human Serv., 793 F.3d 949 (8th Cir. 2015). Lead counsel in case establishing that individual Missouri state employees have standing to challenge the contraceptive mandate contained in the Affordable Care Act and implementing regulations.
Heartland Academy Community Church v. Waddle, 595 F.3d 798 (8th Cir. 2010). Lead counsel on appeal in damage case denying immunity to Missouri juvenile officers and social workers accused of violating the constitutional rights of private religious school, its students and their parents.
Heartland Academy Community Church v. Waddle, 427 F.3d 525 (8th Cir. 2005). Lead counsel on appeal, successfully defending permanent injunction of district court (317 F.Supp.2d 984 (E.D.Mo. 2004)) against state juvenile officer who had violated constitutional rights of private religious school, its students and their parents. Obtained $775,000 payment by State of Missouri for legal fees and expenses related to securing the injunction.
Heartland Academy Community Church v. Waddle, 335 F.3d 684 (8th Cir. 2003). Lead counsel on appeal, successfully defending preliminary injunction of district court against state juvenile officer for violation of constitutional rights of private religious school, its students and their parents.
Good News/Good Sports Club v. School Dist. Of the City of Ladue, 28 F.3d 1501 (8th Cir. 1994), cert. denied, 515 U.S. 1173 (1995). Lead counsel at trial and active co-counsel on
- 2 -
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successful appeal of case establishing rights of student to meet in public school facilities. Section 1983 case involving complex free speech and other First Amendment issues. Also succeeded in obtaining more than $275,000.00 in courtordered attorney fees and expenses.
Eva Hummel-Jones, et ux. v. Strope, et al., 25 F.3d 647 (8th Cir. 1994). Active co-counsel (wrote brief) on successful appeal of Section 1983 case between Missouri family and law enforcement officials involving complex Fourth Amendment issues.
U.S. v. Cargo Service Stations, 657 F.2d 676 (5th Cir. Unit B 1981), cert.denied, 455 U.S. 1017 (1982). Active co-counsel in investigating and trying this statewide (Florida) pricefixing case.
Jamison v. Missouri Dept. of Soc. Serv., 218 S.W.3d 399 (Mo. banc 2007). Lead counsel on appeal in case in which he successfully argued before the Missouri Supreme Court that teachers and child-care workers should not be blacklisted by the state prior to a meaningful due process hearing, thus striking down substantial portions of Missouri law as unconstitutional.
Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682 S.W.2d 465 (Mo. banc), cert. denied, 471 U.S. 1117 (1985). Lead counsel in church property case involving complex First Amendment issues. Convinced Missouri Supreme Court to substantially change, if not reverse, approach it had taken in such cases since 1914.
Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997). Was active co-counsel on amicus curiae brief that was followed by Missouri Supreme Court in restricting supervisor liability (legal responsibility of supervising bishop, etc.) in child molestation cases by parish priests.
State v. Eisenhouer, 40 S.W.3d 916 (Mo. banc 2001). Filed amicus brief addressing the constitutional rights of elders of church who had been subpoenaed to give testimony against parishioner before grand jury.
Conservatorship Estate of Moehlenpah, 763 S.W.2d 249 (Mo. App. E.D. 1988). Lead counsel for respondents in intra-family probate dispute involving competency.
Pasta House Co. v. Williams, et al., 833 S.W.2d 460 (Mo. App. E.D. 1992). Lead counsel for respondent in case involving duties of professional surveyor.
State ex rel. Pini v. Moreland, 686 S.W.2d 499 (Mo. App. E.D. 1984). Lead counsel in pro bono case in which appeals court reversed criminal contempt convictions of protestors.
NOW, et al. v. Scheidler, et al., 968 F.2d 612 (7th Cir. 1992), affirming 765 F. Supp. 937 (N.D. Ill. 1991). Active co-counsel in pro bono case establishing that federal antitrust statutes cannot be used against social protestors who lack economic motivation.
Webster, et al., v. RHS, et al., 492 U.S. 490 (1989). Lead counsel in preparation and filing of amici curiae brief filed on behalf of 127 members of the Missouri legislature.
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 101 of 124 PageID #: 2044 Have been lead counsel in numerous other cases involving civil liberties, Uniform Commercial Code and other commercial disputes, insurance coverage questions, probate disputes, constitutional questions, etc., which have not resulted in reported cases.
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IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

DECLARATION OF CARL H. ESBECK I, Carl H. Esbeck, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am the R.B. Price Professor and Isabella Wade & Paul C. Lyda Professor of Law Emeritus at the School of Law, University of Missouri. My current curriculum vitae is attached hereto and incorporated herein. 2. I was admitted to the bar of the State of New Mexico in 1974 and to the bar of the State of Missouri in 1983. 3. When I was in the private practice of law from 1975 to 1981, about half of my practice involved federal civil rights and constitutional law litigation. I left private practice as an equity partner in my law firm. I joined the faculty at the University of Missouri in the fall of 1981. I have taught the Law School’s courses

Exhibit 7
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Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 103 of 124 PageID #: 2046
on Federal Constitutional Law, Federal Civil Rights Litigation, Civil Procedure, and Religious Liberty & Church-State Relations. I have been a consultant for major civil rights cases that sought a remedy per 42 U.S.C. 1983 in federal district courts in Missouri, Colorado, and Illinois. I also have written scores of briefs amicus curiae in federal and state cases that involved the constitutional rights of religious organizations and individuals.
4. From March of 2001 to August of 2002, I worked in Washington, D.C. as Special Counsel to the Deputy Attorney General, U.S. Department of Justice. I was assigned to First Amendment matters and was the liaison to the White House Office of Faith-Based & Community Initiatives.
5. I am generally familiar with the rates charged by Missouri and St. Louis lawyers in litigation, including constitutional and civil rights cases wherein attorney fees awards are available to prevailing parties pursuant to 42 U.S.C. 1988.
6. As the curricula vitae of Timothy Belz and mine show, he has more than 30 years’ and I more than 40 years’ experience in constitutional litigation, with a particular emphasis on the statutory and constitutional rights bearing on religious freedom. He and I both have national reputations in this area of the law.
7. Based on my experience and knowledge of the St. Louis legal marketplace, hourly rates of $450.00 for Timothy Belz and me are at or below market norms for prevailing rates charged in constitutional and civil rights
2
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litigation by lawyers of our skill and experience. This is especially so with respect

to a case brought under the Religious Freedom Restoration Act (“RFRA”), 42

U.S.C. 2000bb et seq., which is similar to litigation under Section 1983. In both

instances fees and expenses are awarded to prevailing parties under 42 U.S.C.

1988.

8. In the case at bar, the hours I report in the invoices submitted to the

Court represent fewer hours than I actually spent studying the growing controversy

concerning the Affordable Care Act and its contraception mandate.

VERIFICATION

Declaration of Carl H. Esbeck in Lieu of Affidavit pursuant to 28 U.S.C. § 1746:

I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and correct.

Executed November 3, 2017.

/s/ Carl H. Esbeck Carl H. Esbeck

3
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CURRICULUM VITAE
OF
CARL H. ESBECK

I.

CONTACTS

Office:

Room 209, John K. Hulston Hall School of Law University of Missouri Columbia, Missouri 65211 573-882-6543 (direct line with voice mailbox) 573-882-6487 (switchboard) e-mail: esbeckc@missouri.edu

Home:

3264 S. Country Woods Road Columbia, Missouri 65203

II.

EDUCATION

Cornell University School of Law, Ithaca, New York Juris Doctor, magna cum laude, 1974

Honors: Herbert R. Reif prize for the best law review student comment Board of Editors, Cornell Law Review The Order of the Coif Phi Kappa Phi (scholastic honorary)

Iowa State University of Science and Technology, Ames, Iowa Bachelor of Science, 1971, major in mechanical engineering

III.

EMPLOYMENT

2014 – present R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law emeritus, University of Missouri.

2002 - 2014 R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law, University of Missouri. Teaching assignments are Civil Rights, Constitutional Law, Religious Liberty, Civil Procedure I, and Civil Procedure II. Publications are in the areas of church-state relations and federal civil rights litigation.

2001 - 2002

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CURRICULUM VITAE - CARL H. ESBECK Page 2
Senior Counsel to the Deputy Attorney General, U.S. Department of Justice, and Director of the Department of Justice’s Task Force on Faith-Based and Community Initiatives.
1999 - 2001 Director, Center for Law & Religious Freedom, Springfield, Virginia. The Center is a public interest law firm operating under the auspices of the Christian Legal Society. The Center does litigation, governmental affairs, and public education.
1991 - 1999 Isabelle Wade & Paul C. Lyda Professor of Law, University of Missouri.
1985 - 1991 Professor of Law, University of Missouri.
1981-1985 Associate Professor of Law, University of Missouri.
1981 Director/Partner, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico.
1975-1980 Associate, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New Mexico. My practice was principally in the areas of civil rights and commercial litigation in both the federal and state courts and at both the trial and appellate levels. The civil rights cases largely centered on matters of academic freedom and tenure, restraints on freedom of speech and association, establishment and free exercise questions, procedural due process in order to protect property and liberty interests, public schools affording a free equivalent education to handicapped students under Sec. 504 of the Rehabilitation Act of 1973, and employment discrimination. The commercial litigation cases focused on matters involving Articles 2 and 9 of the Uniform Commercial Code. The firm of Rodey, Dickason, Sloan, Akin & Robb, P.A., has a general civil practice. When I became a director it was the largest and oldest law firm in the State of New Mexico.
1974-1975 Judicial Law Clerk, The Honorable Howard C. Bratton, Chief Judge of United States District Court for the District of New Mexico, Albuquerque, New Mexico.
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IV.

SELECTED HONORS

2014 Recipient of the Lloyd E. Roberts Memorial Prize in the Administration of Justice at the MU School of Law, awarded for pro bono publico work in defense of the first amendment.

2014 Recognition by Board of Directors, National Association of Evangelicals, for ten years of pro bono publico work on behalf of the association.

2012 Recipient of the Shook Hardy & Bacon, Excellence in Research Award at the MU School of Law, for excellence in faculty publications.

2010 Recipient of the Husch Blackwell Distinguished Faculty Achievement Award at the MU School of Law, for excellence in teaching.

2010 Selectee for Listing in Marquis’ Who’s Who in America (65th and later editions).

1999 Recipient of the Shook Hardy & Bacon, Excellence in Research Award at the MU School of Law, for excellence in faculty publications.

1995 Recipient of the Defender of Religious Freedom award presented by the Center for Law & Religious Freedom of the Christian Legal Society.

1995 Recipient of the Blackwell Sanders Distinguished Faculty Achievement Award at the MU School of Law, for excellence in teaching.

1992 Recipient of the Lloyd E. Roberts Memorial Prize in the Administration of Justice at the MU School of Law, awarded for my work on “charitable choice” and subsequent faith-based social service regulation and administration.

1987 Professor of the Year, selected by the students at the MU School of Law.

V.

PUBLICATIONS

ACADEMIC JOURNALS

When Religious Exemptions Cause Third-Party Harms: Is the Establishment Clause Violated? 59 OXFORD J. OF CHURCH & ST. 357 (2016), https://academic.oup.com/jcs/article/59/3/357/2805473/Wh en-Religious-Exemptions-Cause-ThirdPartyHarms?guestAccessKey=7d90ae8f-bdd2-4160-bd173fcfe8c54a6d.

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Federal Contractors, Title VII, and LGBT Employment Discrimination: Can Religious Organizations Continue to Staff on a Religious Basis? 4 OXFORD J. L. & RELIGION 368 (2015)
Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, 7 CHARLESTON LAW REVIEW 607 (2013).
Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court, 11 FIRST AMENDMENT LAW REVIEW 1 (2012).
Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 UTAH LAW REVIEW 489 - 623 (2011).
Religious Freedom, Church-State Separation, and the Ministerial Exception, 106 NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY 175 (2011) (w/ co-authors).
Taxpayer Standing From Flast to Hein, 80 SUPRA, THE ONLINE COMPANION TO THE MISSISSIPPI LAW JOURNAL 1 (2010). Protestant Dissent and the Virginia Disestablishment, 1776-1786, 7 GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY 51 (2009). What the Hein Decision Can Tell Us About the Roberts Court and the Establishment Clause, 78 MISSISSIPPI LAW JOURNAL 199 (2008).
The 60th Anniversary of the Everson Decision and America's Church-State Proposition, 23 JOURNAL OF LAW AND RELIGION 15 (2007-2008). When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis, 110 WEST VIRGINIA LAW REVIEW 357 (2007).
“Play in the Joints Between the Religion Clauses” and Other Supreme Court Catachreses, 34 HOFSTRA LAW REVIEW 1331 (2006).
Governance and the Religion Question, 48 JOURNAL OF CHURCH & STATE 303 (2006).
Dissent and Disestablishment: The Church-State Settlement of the New American Republic, 2004 BYU LAW REVIEW 1385-1592 (2004).
The Establishment Clause as a Structural Restraint: Validations and Ramifications, 18 JOURNAL OF LAW & POLITICS 445 (2002).
Religion and the First Amendment: Some Causes of the Recent Confusion, 42 WM.
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& MARY LAW REVIEW 883 (2000).
Charitable Choice and the Critics, 57 N.Y.U. ANN. SURVEY OF AM. LAW 17 (2000).
Differentiating the Free Exercise and Establishment Clauses, 42 JOURNAL OF CHURCH & STATE 311 (2000).
Myths, Miscues and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 NOTRE DAME J. OF LAW, ETHICS & PUBLIC POL’Y 285-319 (1999).
The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA LAW REVIEW 1-113 (1998).
A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 EMORY L. J. 1 (1997).
A Restatement of the Supreme Court's Law of Religious Freedom: Coherence, Conflict, or Chaos?, 70 NOTRE DAME L. REV. 581 (1995).
Government Regulation of Religiously Based Social Services: The First Amendment Considerations, 19 HASTINGS CONST. L.Q. 343 (1992).
Concepts of Church Autonomy in the First Amendment, 13 JURIS DOCTOR 72 (1990).
The Lemon Test: Should it be Retained, Reformulated or Rejected?, 4 NOTRE DAME J. OF LAW, ETHICS & PUBLIC POL’Y 513-548 (1990).
Tort Claims against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 W. VA. L. REV. 1 (1986).
Five Views of Church-State Relations in Contemporary American Thought, 1986 BYU L. REV. 371 (1986).
The Use of Government Funding and Taxing Power to Regulate Religious Schools, 14 J. OF LAW & EDUCATION 553 (1985) (w/ Kline Capps); reprinted in 41 REPORT FROM THE CAPITAL 10 (May 1986).
Religion and a Neutral State: Imperative or Impossibility?, 15 CUMBERLAND L. REV. 701 (1984); reprinted in abridged form in 50 VITAL SPEECHES OF THE DAY 548 (July 1, 1984), and 39 REPORT FROM THE CAPITAL 4 (June 1984).
Establishment Clause Limits On Governmental Interference With Religious Organizations, 41 WASH. & LEE LAW REVIEW 347 (1984).
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State Regulation of Social Services Ministries of Religious Organizations, 16 VALPARAISO LAW REVIEW1 (1981).
Comment, Employment Practices and Sex Discrimination, 59 Cornell Law Review 133 (1973).
BOOK CHAPTERS AND BOOK REVIEWS
Charity for the Autonomous Self, __ CAMBRIDGE J. OF L. & RELIGION __ (2016) (review of two new monographs on charity law).
Religion During the American Revolution and the Early Republic, in LAW AND RELIGION vol. 1, chap. 4 (Silvio Ferrari, ed., Ashgate Publishing, U.K.) (2013).
The Formation of the First Amendment Prohibition on the Establishment of Religion, in NO ESTABLISHMENT OF RELIGION: AMERICA’S ORIGINAL CONTRIBUTION TO RELIGIOUS LIBERTY (T. Jeremy Gunn & John Witte, Jr., eds., Oxford Univ. Press 2012).
Regulation of Religious Organizations via Governmental Financial Assistance, in RELIGIOUS ORGANIZATIONS IN THE UNITED STATES: A STUDY OF IDENTITY, LIBERTY, AND THE LAW (James A. Serritella ed., Carolina Academic Press 2006).
The American System of Church-State Relations (And Its Bearing on Church Autonomy), in CHURCH AUTONOMY: A COMPARATIVE SURVEY (Gerhard Robbers ed., Peter Lang Publishers 2001).
The Neutral Treatment of Religion and Faith-Based Social Service Providers: Charitable Choice and Its Critics, in WELFARE REFORM AND FAITH-BASED ORGANIZATIONS 173-217 (Derek Davis & Barry Hankins eds., 1999).
Equal Treatment: Its Constitutional Status, in EQUAL TREATMENT OF RELIGION IN A PLURALISTIC SOCIETY 9-29 (Stephen V. Monsma & J. Christopher Soper eds., Eerdmans Pub. Co. 1998).
A Typology of Church-State Relations in Current American Thought, in RELIGION, PUBLIC LIFE, AND THE AMERICAN POLITY (Luis E. Lugo ed., Univ. of Tenn. Press 1994).
Book Review Essay of "First Freedom: Religion and the Bill of Rights,” by James Wood ed., 1990), in 8 J. OF LAW & RELIGION 651 (1990).
The Establishment Clause as a Limit on Governmental Regulation of Religious Schools, in CIVIL RIGHTS AND PRIVATE EDUCATION (Neil Devins, ed., Stanford
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University Series of Falmar Press 1989).
The Establishment Clause: Assuring the Independence of Churches and a Neutral State, in GOVERNMENT INTERVENTION IN RELIGIOUS AFFAIRS (Dean Kelley, ed., Pilgrim Press 1986).
Book Review essay of The Naked Public Square: Religion and Democracy in America, by Richard John Neuhaus, 50 MISSOURI LAW REVIEW 201 (1985).
LEGAL ESSAYS, BLOGS, AND OP-EDS.
Two Decades of Bipartisan Cooperation on Government Funding and Religion . . . this can’t possibly be about the U.S., at Cornerstone, blog of the Religious Freedom Institute at Georgetown University, http://www.religiousfreedominstitute.org/cornerstone/2016/8/22/two-decades-ofbipartisan-cooperation-on-government-funding-and-religion-this-cant-possibly-beabout-the-us (August 22, 2016).
VITAL SPEECHES OF THE DAY, A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable? (January 2016).
North Carolina suit challenges constitutionality of religious exemption for conscientious objectors, Mirror of Justice http://mirrorofjustice.blogs.com/mirrorofjustice/2015/12/carl-esbeck-on-a-northcarolina-case-involving-religious-accommodations-after-obergefell.html (Dec. 17, 2015).
Third-Party Burdens, Congressional Accommodations for Religion, and the Establishment Clause, Hearing on Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, before the Judiciary Committee of the U.S. House of Representatives, Subcommittee on the Constitution and Civil Justice (February 13, 2015) http://www.irfalliance.org/wpcontent/uploads/2015/02/2015-02-11-Esbeck-testimony-RFRA-RLUIPA-third-partyharms.pdf?utm_source=IRFA+eNews+Feb+26&utm_campaign=eNews+Feb+26+2015&utm_medium=email
Freedom of the Church, a posting at the blog Cornerstone, The Berkeley Center at Georgetown University, June 3, 2014.
Watch What You Pray For, Christianity Today (February 2014) http://www.christianitytoday.com/ct/2014/may-web-only/carl-esbeck-supreme-courtprayer-greece-galloway.html.
Town of Greece Symposium: Can Government Actively Favor a Religious
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Practice?, (Sept. 23, 2013). http://www.scotusblog.com/2013/09/town-of-greecesymposium-can-government-actively-favor-a-religious-practice/
A Religious Organization’s Autonomy in Matters of Self-Governance: HosannaTabor and the Frist Amendment, 13 ENGAGE 168 (2012).
Why the Supreme Court Has Fashioned Rules of Standing Unique to the Establishment Clause, 10 ENGAGE 83 (2009).
The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Services Programs, 9 ENGAGE 140 (2008).
Conservatives, Evangelicals not in Lock-Step, op-ed appearing in the LANCASTER INTELLIGENCER JOURNAL on September 21, 2006, http://local.lancasteronline.com/4/26020
Church-State Relations in America: What’s At Stake and What’s Not?, 100 LIBERTY MAGAZINE 3 (May/June 2005).
On Rights and Restraints, 94 LIBERTY MAGAZINE 22-29 (March/April 1999).
Pluralism Without a Center? The Emergence of Many Cultures in American Society and Why It's Good, 90 LIBERTY MAGAZINE 20 (May/June 1995).
The Bicentennial of the U.S. Bill of Rights, 32 DECISION MAGAZINE 16 (January 1991).
A Case for Disestablishment of the Church of England, 45 REPORT FROM THE CAPITAL 6 (March 1990).
Current Practice Under 42 U.S.C. Sections 1981 and 1982, 12 BARRISTER MAGAZINE 31 (ABA Spring 1985) (w/ Mike Shipley).
Current Practice Under 42 U.S.C. Sections 1985 and 1986, 11 BARRISTER MAGAZINE 34 (ABA Fall 1984) (w/ Larry Schumaker).
Current Practice Under 42 U.S.C. Section 1983, 10 BARRISTER MAGAZINE 31 (ABA Fall 1983).
Back to Basics: God, Caesar and the American Experience, 36 CHURCH & STATE MAGAZINE 20 (April 1983).
MONOGRAPHS
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THE FREEDOM OF FAITH-BASED ORGANIZATIONS TO STAFF ON A RELIGIOUS BASIS (Center for Public Justice, 2004) (w/ Stanley W. Carlson-Thies and Ronald J. Sider). ISBN: 0-936456-04-3
A GUIDE TO CHARITABLE CHOICE: THE RULES OF SECTION 104 OF THE 1996 FEDERAL WELFARE LAW GOVERNING STATE COOPERATION WITH FAITH-BASED SOCIALSERVICE PROVIDERS, (Center for Public Justice and the Christian Legal Society, 1997) (w/ Stanley Carlson-Thies).
THE REGULATION OF RELIGIOUS ORGANIZATIONS AS RECIPIENTS OF GOVERNMENTAL FINANCIAL ASSISTANCE (Center for Public Justice, 1996). ISBN: 0-936456-03-5.
ENCYCLOPEDIA ENTRIES AND OTHER COLLECTED WORKS
ENCYCLOPEDIA OF CHRISTIANITY IN THE UNITED STATES (Mark A. Lamport, ed., Rowman & Littlefield Publishers forthcoming 2016) (entries for Religious Freedom Restoration Act, Religious Land Use & Institutionalized Persons Act, United States v. Ballard, and Everson v. Board of Education).
ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES (Paul Finkelman, ed., Taylor & Francis Publishers 2006) (entries of Charitable Choice and Tilton v. Richardson).
A Retrospective on the Bush Initiative, 2001-04; and Turning Obstacles into Opportunities, 2005-08, paper presented at the Federalist Society Conference on the Faith-Based Initiative: What’s in Store for the Second Term? (Feb. 10, 2005), available on line at www.fed-soc.org/Publications/Transcripts/faithbased/pdf.
Statement Before the United States House of Representatives Concerning Charitable Choice and the Community Solutions Act, reprinted in 16 NOTRE DAME J. OF LAW, ETHICS & PUBLIC POL’Y 567 (2002).
First Amendment Considerations and Remarks on Proceedings, in THE ROLE OF RELIGION IN POLITICS AND SOCIETY 115-30 (Harold Heie, A. James Rudin & Marvin R. Wilson, eds., Center For Christian Studies at Gordon College and Interreligious Affairs Department of the American Jewish Committee 1998).
American Religion and Politics: Do We Really Have a Shared Vision?, in THE ROLE OF RELIGION IN SOCIETY 30 (American Jewish Committee 1997).
Table of U.S. Supreme Court Decisions Relating to Religious Liberty, 10 J. OF LAW & RELIGION 573 (1994).
1993 Survey of Trends and Developments on Religious Liberty in the Courts, 10 J. OF LAW & RELIGION 543 (1994).
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A Topology of Church-State Relations in Current American Thought, 8 J. OF FAITH AND MISSION 3 (1990).

Ecclesiastical Disciplinary Law and The Law of Church Employees, a seven volume work entitled EVANGELISCHES KIRCHENLEXICON (West Germany, 1990) (encyclopedia entries describing the law of the U.S.).

Concepts of Church Autonomy in the First Amendment, in PROCEEDINGS OF THE ABA NATIONAL INSTITUTE ON TORT AND RELIGION (May 1989).

A Topology of Church-State Relations in American Thought, in 15 RELIGION AND PUBLIC EDUCATION 43 (Winter 1988) (reprint).

1987 Survey of Trends and Developments on Religious Liberty and the Courts, in 5 J. OF LAW & RELIGION (1988).

Religion and a Neutral State: Imperative or Impossibility?, in RELIGION IN AMERICAN LIFE (Podell ed., H.W. Wilson Co. 1987) (reprint).

1986 Survey of Trends and Developments On Religious Liberty in the Courts, 4 J. OF LAW & RELIGION 431 (1987).

Religious Beliefs, Human Rights and the Moral Foundation of Western Democracy, in 1986 PAINE LECTURES IN RELIGION (C. Esbeck ed., 1986).

1985 Survey of Trends and Developments on Religious Liberty in the Courts, 3 J. OF LAW & RELIGION 211 (1986).

Toward a General Theory of Church-State Relations and the First Amendment, 4 PUBLIC LAW FORUM 325 (1985).

The Limits on Law in Directing Moral Choice, 34 ETERNITY MAGAZINE 64 (September 1983); reprinted in 4 CLS QUARTERLY 26 (Fall 1983).

A Primer on Religious Liberty and the First Amendment, 3 CLS QUARTERLY 1A (Summer 1982).

VI.

ACADEMIC & PROFESSIONAL ACTIVITIES

I have published widely in the area of religious liberty and church-state relations. I took the lead in recognizing that the modern U.S. Supreme Court has applied the establishment clause not as an individual right, but as a structural limit on the government’s authority in explicitly religious matters. This paradigm shift has

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::11134 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

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CURRICULUM VITAE - CARL H. ESBECK Page 11

VII. VIII.

led a movement that better explains the Court special rules on standing with respect to claims under the establishment clause, and is helping to recover notions of church autonomy in an otherwise growing regulatory environment.
I am recognized as the progenitor of "charitable choice," an integral part of the 1996 Federal Welfare Reform Act (see 42 U.S.C. § 604a). That legislation was later made a part of three additional federal welfare programs during the Clinton Administration. I followed up that effort by assisting in the promulgation of equaltreatment regulations during the Bush Administration. I continue to work on President Obama’s Office of Faith-Based and Neighborhood Partnerships concerning such matters as the right of social-service providers to employ person of like-minded faith.
While on leave from 1999 to 2002, I directed the Center for Law & Religious Freedom and then served as Senior Counsel to the Deputy Attorney General at the U.S. Department of Justice. While directing the Center, I was part of a small advocacy team at the Senate which led to passage of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). While at the Department of Justice I worked on first amendment matters generally. Additionally, one of my duties was to direct a task force to remove barriers to the equal-treatment of faith-based organizations applying for social-service grants.
In addition to traditional scholarship, I provide pro bono legal advice to the National Association of Evangelicals, the Center for Law & Religious Freedom, and each year author or coauthor four to six briefs amicus curiae on various first amendment matters in the federal and state courts.
SERVICE TO THE SCHOOL OF LAW
Over multiple years I have served as a member or chair of various committees at the MU School of Law, including the following: Tenure & Promotion Committee, Reaccreditation Self-Study Committee, Faculty Appointments, Honor Code Committee, Judicial Clerkship Committee, Standards & Readmissions Committee, Tenure & Promotion Committee, Search Committee for the Campbell Missouri Endowed Chair, and the ad hoc Planning Committee.
PROFESSIONAL LICENSES & AFFILIATIONS
Bar Admissions: 1974 State of New Mexico; 1974 United States District Court for the District of New Mexico; 1976 United States Court of Appeals for the Tenth Circuit; 1982 State of Missouri; 1990 United States Court of Appeals for the Eighth Circuit; 1997 United States Supreme Court.
Member, Association of American Law Schools, American Bar Association, and Missouri Bar Association.

AAppppeellalateteCCaassee::1144--11550077 PPaaggee::11145 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 116 of 124 PageID #: 2059 CURRICULUM VITAE - CARL H. ESBECK Page 12 Executive Committee of the Religious Liberty Practice Group of The Federalist Society, Washington, D.C. Board of Directors & Member, Christian Legal Society, Washington, D.C. Legal Counsel, National Association of Evangelicals, Washington, D.C.
August 2016
AAppppeellalateteCCaassee::1144--11550077 PPaaggee::11156 DDaateteFFilieledd::1112/0/065/2/2001177EEnntrtryyIDID::44569077624545

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 117 of 124 PageID #: 2060

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

DECLARATION OF J. MATTHEW BELZ I, J. Matthew Belz, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am and have been since 2008 a member of the law firm of Ottsen, Leggat & Belz, L.C. in Clayton, Missouri. I was an associate until late in 2015, and have been a partner since that time. 2. In 2005, I graduated from the University of Missouri-Columbia with a major in business administration and a minor in philosophy. I graduated from the University Missouri School of Law in 2008. 3. I am a member of the Missouri bar, the Eastern District of Missouri, and the Eighth Circuit Court of Appeals.

Exhibit 8
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 17 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 118 of 124 PageID #: 2061
4. My primary focus is litigation. Within that field, I have spent as much as or more than half of my time working on 42 U.S.C. § 1983 and Religious Freedom Restoration Act (“RFRA”) cases. The bulk of my work in these cases consists of research and drafting briefs, and I was recently lead counsel in a Section 1983 case, Powell v. St. Francois County, 4:14-cv-01230 AGF (E.D. Mo.).
5. During this case I was primarily responsible for research and drafting pleadings and briefs. I believe the hours I have submitted were reasonably expended.
6. I am requesting compensation in this case at an hourly rate of $250 per hour. Based on my knowledge of prevailing market rates and substantial research on the subject, $250 is a reasonable rate for a person of my background and experience.
VERIFICATION Declaration of J. Matthew Belz in Lieu of Affidavit pursuant to 28 U.S.C. § 1746: I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and correct. Executed November 3, 2017.
/s/ J. Matthew Belz J. Matthew Belz
2
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 218 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 119 of 124 PageID #: 2062

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

DECLARATION OF AL W. JOHNSON I, Al W. Johnson, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am the principal and founder of New Covenant Legal Services in St. Louis, Missouri. 2. I have been admitted to the Missouri bar and the U.S. District Court for the Eastern District of Missouri since 1981. I have been admitted to the Illinois bar since 1998. 3. One of my practice’s concentrations is in civil rights. I have also taught courses on constitutional law at Missouri Baptist University.

Exhibit 9
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 19 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 120 of 124 PageID #: 2063
4. I am generally familiar with the rates charged by Missouri and St. Louis lawyers in litigation, including constitutional and civil rights cases wherein attorney fees awards are applicable pursuant to 42 U.S.C. 1988.
5. I have worked personally with Timothy Belz, Matthew Belz and Carl Esbeck in the civil rights context and am familiar with their legal work.
6. My work with Timothy Belz has been extensive, including two substantial police misconduct cases, one of which was tried to a jury verdict in 2007 in the District Court Southern district of Illinois. My most extensive work with Timothy Belz in Section 1983 litigation was my involvement with him as cocounsel in a civil case relating to Heartland Academy Community Church. Heartland Acad. Cmty. Church v. Waddle, 317 F. Supp. 2d 984, 994 (E.D. Mo. 2004) aff'd, 427 F.3d 525 (8th Cir. 2005). Between 2001 and 2010 I worked closely with Timothy Belz in a case where an injunction was eventually obtained, id., and the underlying civil rights violations were presented to a jury in 2010. The 2010 case unfortunately resulted in a defendants’ verdict. Based on these experiences with Timothy Belz, I know that he has a keen comprehension of Section 1983 and religious liberties law and litigation and there is no finer litigation attorney in these areas that I have ever observed.
7. My observations of Matthew Belz are more limited but I have used him as co-counsel in over 25 cases, including a recent Section 1983 case. He was
2
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 20 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 121 of 124 PageID #: 2064
my co-counsel in a complete circuit court jury trial that was completed in 2016. Although not as experienced as his father, he is an outstanding young attorney who demonstrates a high level of competence in legal research, writing and litigation.
8. I have worked with Carl Esbeck on only two or three legal matters in the past 25 years. However, I have participated in seminars with him and heard him speak on five to six occasions at legal seminars where Section 1983 matters were the primary topic of discussion. He has an exceptional grasp of all aspects of Section 1983 and religious liberties law.
9. Based on my experience and knowledge of the legal marketplace, I believe hourly rates of $450.00 for Timothy Belz and Carl Esbeck and $250.00 for Matthew Belz are within market norms as rates charged in a constitutional civil rights case for lawyers of their skill and experience.
VERIFICATION Declaration of Al W. Johnson in Lieu of Affidavit pursuant to 28 U.S.C. 1746: I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and correct. Executed November 3, 2017.
/s/ Al W. Johnson Al W. Johnson
3
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 321 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 122 of 124 PageID #: 2065

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_________________________________

SHARPE HOLDINGS, INC., et al.,

Plaintiffs-Appellees,

v.

No. 14-1507

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

Defendants-Appellants.

DECLARATION OF MARK F. (THOR) HEARNE II IN SUPPORT OF MOTION FOR ATTORNEY FEES I, Mark F. (Thor) Hearne II, declare the following to be true based upon my knowledge and experience: 1. I am an equity partner in the Arent Fox law firm. Before joining Arent Fox in 2010, I was an equity partner with Lathrop & Gage and managing partner for the St. Louis office of Lathrop & Gage. 2. I graduated from Washington University School of Law in 1986. I am licensed to practice in the States of Missouri and Michigan, and in the District of Columbia. I am also admitted to practice before the United States Supreme Court, the Courts of Appeal for the Second, Fourth, Sixth, Eighth and Federal Circuits, the United States Court of Federal Claims, the United States Tax Court, and the
Exhibit 10
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 122 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 123 of 124 PageID #: 2066
United States Court of International Trade. I have argued before the United States Supreme Court, and the Supreme Courts of Missouri, Kansas, Florida and Michigan.
3. My practice primarily involves federal trial and appellate litigation. Many of the cases in which I am counsel are in the Court of Federal Claims and the Federal Circuit, representing owners whose property the federal government has taken in violation of the Fifth Amendment’s just compensation clause. Congress adopted the fee-shifting provisions of the Uniform Relocation Assistance Act, 42 U.S.C. 4654, requiring the federal government to reimburse prevailing landowners’ attorney fees and litigation expenses. Researching and resolving the government’s obligation to reimburse attorney fees under federal fee-shifting statutes is a necessary and significant part of my practice. I was also counsel for Lt. Governor Peter Kinder in Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012), which I argued.
4. I am chair of Arent Fox’s appellate practice group. As such, I am required to be familiar with the hourly rates fee-paying clients pay attorneys possessing comparable experience in those markets where Arent Fox practices.
5. I am familiar with the hourly rates fee-paying clients pay attorneys in St. Louis to represent them in federal litigation, including constitutional and civil rights litigation subject to federal fee-shifting statutes such as 42 U.S.C. 1988.
2
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 23 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

Case: 2:12-cv-00092-DDN Doc. #: 144 Filed: 12/05/17 Page: 124 of 124 PageID #: 2067
6. I know Carl Esbeck, Timothy Belz and Matthew Belz, and I know their experience and the quality of their legal work. I was co-counsel with Carl Esbeck on amicus briefs before both the Eighth Circuit, in Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 799 (8th Cir.), and in the Supreme Court, in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). I have known Tim Belz and Matt Belz for many years and am familiar with their reputations in the legal community and their experience.
7. Based on my experience and knowledge of the legal marketplace, I believe hourly rates of $450.00 for Tim Belz and Carl Esbeck and $250.00 for Matt Belz are substantially below prevailing market rates for attorneys possessing their skill and experience.
FURTHER DECLARANT SAYETH NOT.

VERIFICATION

Declaration of Mark F. (Thor) Hearne II in Lieu of Affidavit pursuant to 28 U.S.C. 1746:

I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and correct to the best of my knowledge and belief.

Executed November 3, 2017.

/s/ Mark F. (Thor) Hearne II Mark F. (Thor) Hearne II

3
AApppeellallateteCCaasese: 1: 144-1-1550077 PPaaggee: 1: 324 DDataeteFFileilde:d1: 1/20/60/52/0210717EEntnrtyryIDID: 4: 5496706742455

 
 Case: 2:12-cv-00092-DDN Doc. #: 160 Filed: 03/28/18 Page: 1 of 8 PageID #: 2444

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

et al.,

)

)

Defendants.

)

No. 2:12 CV 92 DDN

MEMORANDUM This action is before the court on the motion of plaintiffs CNS International Ministries (CNS) and Heartland Christian College (HCC) for permanent injunction and declaratory relief following remand from the United States Court of Appeals for the Eighth Circuit and the United States Supreme Court. (Doc. 138). For the reasons set forth below, plaintiffs’ motion is granted. An appropriate Judgment Order is entered herewith.

BACKGROUND This action was commenced on December 20, 2012, by certain individual and corporate for-profit plaintiffs against the Department of Health and Human Services (HHS), the Secretary of HHS, the Department of the Treasury, the Secretary of the Treasury, the Department of Labor, and the Secretary of Labor. These plaintiffs claim the Affordable Care Act’s1 contraceptive mandate violates the Religious Freedom
1 The Patient Protection and Affordable Care Act, Pub. L. 111-148 (Mar. 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (Mar. 30, 2010), are collectively known as the “Affordable Care Act” (ACA).

Case: 2:12-cv-00092-DDN Doc. #: 160 Filed: 03/28/18 Page: 2 of 8 PageID #: 2445
Restoration Act (RFRA); the Free Exercise and Establishment Clauses of the First Amendment to the Constitution of the United States; plaintiffs’ freedoms of speech and association guaranteed by the First Amendment; and the Administrative Procedures Act, 5 U.S.C. § 706(2).2 They sought a declaration from the court that the ACA’s contraceptive mandate and its enforcement violate the First Amendment, the Fifth Amendment, RFRA, and the APA. They also sought an order prohibiting the enforcement of the mandate against them and moved for a temporary restraining order and a preliminary injunction on December 20, 2012. This court issued a temporary restraining order on December 31, 2012, and then a preliminary injunction on June 28, 2013.
Plaintiffs then amended their complaint to add CNS and HCC, both non-profit organizations and the current movants, as plaintiffs on December 4, 2013. The temporary restraining order and the preliminary injunction were expanded to include these plaintiffs on December 30, 2013, a decision defendants appealed as to CNS and HCC in February 2014.
New decisions by the United States Supreme Court and changing regulations necessitated supplemental briefing and letters to the United States Court of Appeals for the Eighth Circuit. (Doc. 144 at 7). On September 17, 2015, that Court affirmed this Court’s decision in favor of CNS and HCC. Sharpe Holdings, Inc. v. Dept. of Health and Human Serv., 801 F.3d 927 (8th Cir. 2015). This created a split in the circuits, and the Supreme Court granted petitions for certiorari brought by other religious claimants in similar cases on November 6, 2015. Defendants filed their petition for a writ of certiorari on December 15, 2015, which the Supreme Court granted on June 16, 2016, vacating the Eighth Circuit’s decision and remanding for further proceedings. It vacated all of the circuits’ decisions on this issue, and it required the parties find an alternative solution to
2 Only the RFRA challenge remains before this Court; all other grounds were dismissed. (Doc. 102).
-2-

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the problematic “augmented accommodation” in place at the time. Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016). On June 22, 2016, pursuant to the Zubik opinion, the Court of Appeals vacated its September 17, 2015 opinion and reopened the case.
On October 6, 2017, the government issued new interim final rules (new IFRs) that greatly expanded the scope of permissible religious objections to the contraceptive mandate. Accordingly, on October 13, 2017, defendants dismissed their appeal. On November 17, 2017, plaintiffs moved for a permanent injunction from this court. Defendants objected on December 8, 2017, asserting that the new IFRs rendered the matter moot and that a permanent injunction was therefore inappropriate.
On December 15, 2017, the United States District Court for the Eastern District Court of Pennsylvania issued a preliminary injunction barring the application of the new IFRs. Pennsylvania v. Trump, 281 F. Supp. 3d 553 (E.D. Pa. 2017) On December 21, 2017, the United States District Court for the Northern District of California followed suit. California v. Health and Human Services, 281 F. Supp. 3d 806 (N.D. Cal. 2017). On December 22, 2017, in the case at bar, the government subsequently dropped its mootness challenge, declined to advance any substantive defense of the “augmented accommodation,” and adopted no position as to the appropriateness of permanent injunctive relief in this case. (Doc. 152 at 2).
ANALYSIS In Zubik, the Supreme Court directed that “the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Zubik, 136 S. Ct. at 1560. Shortly thereafter, the government expressed its opinion that: “there [is] ‘no feasible approach . . . at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.’” California, 281
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F. Supp. 3d at 818 (quoting Department of Labor, FAQs about Affordable Care Act Implementation Part 36 (Jan. 9, 2017)). Insofar as the new IFRs are now presented as the government’s position, they are presently enjoined from enforcement by District Courts in Pennsylvania and California. See Pennsylvania, 281 F. Supp. 3d at 585; California, 281 F. Supp. 3d at 832.
Thus, the parties before this Court are “[returned] to the state of affairs before October 6, 2017 . . . the exemption and accommodation as they existed following the Zubik remand remain in effect, as do any court orders enjoining Defendants from enforcing those rules against specific plaintiffs.” California, 281 F. Supp. 3d at 832-33; see also Pennsylvania, 281 F. Supp. 3d at 585 (“A preliminary injunction will maintain the status quo: those with exemptions or accommodations prior to October 6, 2017 will maintain their status, those with injunctions preventing enforcement of the Contraceptive Mandate will maintain their injunctions, but those with coverage will maintain their coverage as well.”).
This Court is mindful of the Supreme Court’s statement that it: expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.
Zubik, 136 S. Ct. at 1560; see also id. at 1561 (Sotomayor, J., concurring): Lower courts… should not construe [Zubik] as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders… Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc. v. Department of Health and Human Servs.… (C.A.8 2015)… On remand in these cases, the Courts of Appeals should not make the same mistake.
The Zubik concurrence also noted that vacating the appellate rulings, without further substantive guidance, means that lower appellate courts “remain free to reach the
-4-

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same conclusion or a different one on each of the questions presented by these cases.” Zubik, 136 S. Ct. at 1562. While the Eighth Circuit Court of Appeals’ decision in Sharpe was vacated, the undersigned finds its reasoning persuasive. Therefore, this Court’s reasoning on remand is substantially the same as that laid out by the Court of Appeals in its opinion for purposes of plaintiffs’ RFRA challenge.
Under RFRA, federal law may not “substantially burden a person’s exercise of religion” unless the government “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). Plaintiffs under RFRA have the initial burden to show a substantial burden upon their sincere religious exercise or belief. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006). If plaintiffs succeed, the government has the burden to show that it has a “compelling interest” in applying “the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)). Non-profit and closely-held for-profit corporate plaintiffs are “persons” for purposes of RFRA challenges. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2769-75 (2014). Financial penalties for religiously-motivated noncompliance with a regulatory duty constitute a substantial burden. Id. at 2779.
Whether or not expressed religious conviction is consistent with related scripture is not within the scope of judicial review. Sharpe, 801 F.3d at 938-39 (citing Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 716 (1981)). A religious objector’s description of its religious beliefs must be accepted regardless of whether the Court considers those beliefs “acceptable, logical, consistent, or comprehensible.” Thomas, 450 U.S. at 714. A Court's function is narrow and is to decide whether the religious objector's religious belief “reflects ‘an honest conviction.’” Hobby Lobby, 134 S. Ct. at 2779 (quoting Thomas, 450 U.S. at 716.) Thus, because of CNS and HCC’s religious beliefs, the sincerity of which is unchallenged, this Court concludes that
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"compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion.” Sharpe, 801 F.3d at 942.
The government’s interests in safeguarding public health and in ensuring that women have equal access to health care have been assumed to be compelling interests for purposes of RFRA challenges. Id. at 943 (citing Hobby Lobby, 134 S. Ct. at 2780). This Court makes the same assumption and proceeds to the government's weighty burden of showing "that the contraceptive mandate and accommodation process are the least restrictive means for furthering the government's compelling interests." Id.
Plaintiffs object on religious grounds not just to the contraceptive mandate but also to the government's accommodation process. (Doc. 139). The Supreme Court has not decided whether the government's accommodation process complies with RFRA. Id. at 943-44. The Eighth Circuit has noted that the government's accommodation process is not the least-restrictive means to further these compelling interests. Id. at 944 (noting approval by the Supreme Court of less-demanding alternatives in cases following Hobby Lobby). “[C]ost may be an important factor in the least-restrictive means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.” Hobby Lobby, 134 S. Ct. at 2781. The evidentiary record thus far in this case has not shown that alternatives3 would be so administratively or financially burdensome as to make the “augmented accommodation” the government’s least-restrictive means. Sharpe, 801 F.3d at 944-45.
Plaintiffs are entitled to a declaratory judgment as follows:
3 Alternatives might include less-demanding opt-outs; direct assumption by the government of the costs of providing contraceptives; subsidies or tax credits to employees unable to obtain the contraceptives at issue from their employers; distribution of contraceptives at public clinics and hospitals; and providing the contraceptives at issue through government healthcare-insurance exchanges. Sharpe, 801 F.3d at 944-45.
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The contraceptive mandate in the Affordable Care Act and implementing regulations and the accommodations as augmented on August 27, 2014, violate the rights of plaintiffs CNS and HCC pursuant to the Religious Freedom Restoration Act. Plaintiffs CNS and HCC are not subject to any fines, already accrued or imposed in the future, for their non-compliance with such laws. See 28 U.S.C. § 2201(a); Fed.R.Civ.P. 57. Plaintiffs are also entitled to permanent injunctive relief. The Eighth Circuit has stated the factors for considering permanent injunctive relief thus: To obtain a permanent injunction, [movant is] required to show: (1) its actual success on the merits; (2) that it faces irreparable harm; (3) that the harm to it outweighs any possible harm to others; and (4) that an injunction serves the public interest. Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, 634 F.3d 1005, 1012 (8th Cir. 2011). The Court previously considered the appropriateness of injunctive relief and found that application of the factors prescribed by Dataphase Systems, Inc. v. C.L. Systems, Inc. 640 F.2d 109, 113 (8th Cir. 1981) (en banc), tipped in favor of the plaintiffs. Sharpe Holdings, Inc. v. U.S. Dept. of Health and Human Services, 2012 WL 6738489 (E.D. Mo. 2012); Sharpe Holdings, Inc., 2013 WL 6858588 (E.D. Mo. 2013). Those results adhere today. Furthermore, in light of the Eighth Circuit’s prior reasoning on plaintiffs’ RFRA challenge to the accommodation process, and particularly given that the government no longer advances a substantive defense thereof, this Court holds that plaintiffs have attained actual success on the merits and are entitled to a permanent injunction.
-7-

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CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED that the motion of plaintiffs for permanent injunctive and declaratory relief (Doc. 138) is GRANTED. An appropriate Judgment Order is filed herewith.

Signed on March 28, 2018.

/S/ David D. Noce UNITED STATES MAGISTRATE JUDGE

-8-

 
 Case: 2:12-cv-00092-DDN Doc. #: 166 Filed: 08/09/18 Page: 1 of 10 PageID #: 2510

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

SHARPE HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

et al.,

)

)

Defendants.

)

No. 2:12 CV 92 DDN

MEMORANDUM AND ORDER REGARDING MOTIONS FOR ATTORNEY FEES This action is before the court on the motions of plaintiffs CNS International Ministries ("CNS") and Heartland Christian College ("HCC") ("not-for-profit plaintiffs" or "movant-plaintiffs") for attorneys' fees and expenses under 42 U.S.C. § 1988 following remand from the United States Court of Appeals for the Eighth Circuit. (Docs. 144 and 162). For the reasons set forth below, plaintiffs’ motions are granted in part and denied in part.

BACKGROUND On December 4, 2013, CNS and HCC joined certain individual and corporate forprofit plaintiffs in this action against the defendants Department of Health and Human Services, the Secretary of HHS, the Department of the Treasury, the Secretary of the Treasury, the Department of Labor, and the Secretary of Labor.1 Plaintiffs allege that federal regulations issued under the Patient Protection and Affordable Care Act of 2010
1 A more complete discussion of this case’s procedural context is contained in this Court’s Memorandum accompanying the Judgment Order granting plaintiffs declaratory and permanent injunctive relief. (Docs. 160, 161).

Case: 2:12-cv-00092-DDN Doc. #: 166 Filed: 08/09/18 Page: 2 of 10 PageID #: 2511
("contraceptive mandate") forced plaintiffs to violate their sincerely held religious opposition to abortion on demand or pay fines and penalties or lose health insurance coverage in violation of the Religious Freedom Restoration Act and the First Amendment to the Constitution. (Docs. 1, 61).
The original plaintiffs sought and received a temporary restraining order and a preliminary injunction in December 2012 and in June 2013. (Docs. 20, 56). The temporary restraining order and the preliminary injunction were extended to include the later joined not-for-profit plaintiffs on December 30, 2013, a decision the government appealed as to CNS and HCC in February 2014. (Docs. 84, 85). The Eighth Circuit affirmed and the United States Supreme Court vacated and remanded that decision. Dept. of Health and Human Serv., et al. v. CNS Int’l Ministries, et al., No. 15-775, 2016 WL 2842448, at *1 (U.S. May 16, 2016); Sharpe Holdings, Inc. v. Dept. of Health and Human Serv., 801 F.3d 927 (8th Cir. 2015).
On October 6, 2017, the government issued an interim regulation that permitted religious objections to the contraceptive mandate. On October 13, 2017, the Eighth Circuit granted defendants' motion to dismiss their appeal. (Doc. 131). On November 17, 2017, plaintiffs CNS and HCC moved for a permanent injunction. (Doc. 138). The government initially objected on the ground of mootness, but on December 22, 2017, it dropped its objections and declined to offer further substantive defenses in light of developments in other cases. (Docs. 146, 152).
MOTIONS FOR ATTORNEY FEES On December 5, 2017, plaintiffs CNS and HCC moved under 42 U.S.C. § 1988(b) for attorney fees in the amount of $408,110.00 and expenses in the amount of $1,753.72. (Doc. 144). On March 30, 2018, they filed a supplemental motion for $43,955.00 in attorney fees for time expended since November 6, 2017. (Doc. 162). Defendants objected to both motions, arguing that (1) plaintiffs are not in fact prevailing parties entitled to receive attorney fees, or, if they are, that the fee should be reduced by 40
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percent because of plaintiffs’ “limited success;” (2) the number of hours claimed is excessive when compared to filings in similarly situated cases; (3) plaintiffs’ claimed fees include duplicative amounts from their compensation for work on the for-profit plaintiffs’ portion of this case; (4) plaintiffs’ counsel did not exercise reasonable billing judgment in recording time; and (5) plaintiffs’ claims for “fees-on-fees litigation” are excessive. (Docs. 145, 156, 164).
ANALYSIS 1. Plaintiffs are prevailing parties The Court may award a reasonable attorney fee to prevailing parties in “any action or proceeding to enforce a provision of . . . the Religious Freedom Restoration Act of 1993[.]” 42 U.S.C. § 1988(b). The "touchstone of the prevailing party inquiry” is whether there is a “material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Sole v. Wyner, 551 U.S. 74, 84 (2007); see, e.g., Maher v. Gagne, 448 U.S. 122, 129 (1980) (upholding finding that plaintiffs were prevailing parties when they obtained a consent decree after settling). In plaintiffs' case the government ultimately declined to contest their motion for a permanent injunction. (Doc. 152). In the absence of government opposition and in keeping with the Eighth Circuit’s prior decision in this case, this Court granted plaintiffs declaratory and permanent injunctive relief. (Doc. 160). The relationship between the parties thus changed, terminating the controversy and granting plaintiffs the outcome they sought. The government’s argument that plaintiffs are not prevailing parties is without merit.
2. Consideration of prior work and work in other cases Plaintiffs request attorneys’ fees totaling $452,065.00 ($408,110 in Doc. 144 and $43,955 in Doc. 162), plus expenses totaling $1,753.72. (Doc. 144). To reflect the
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statutory requirement that fee awards under 42 U.S.C. § 1988(b) must be "reasonable," they must be sufficient to “attract competent counsel" without producing a windfall. Perdue v. Kenney A. ex. rel. Winn, 559 U.S. 542, 552 (2010). “It [is] for the district court to determine what fee is ‘reasonable.’” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Generally, the method for determining a reasonable fee is "the lodestar" figure, that is, “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. The government does not challenge the hourly rates requested by plaintiffs’ counsel. (Doc. 145 at 10). This Court has previously found these rates reasonable in light of plaintiffs’ attorneys’ respective experience and qualifications. (Doc. 118 at 4-5).
The government does, however, challenge the number of claimed hours. The process of awarding attorney fees gives “rough justice[,]” not “auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). District courts “may take into their account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Id.
First, the Court notes that plaintiffs’ attorneys have received fees on behalf of their non-movant, for-profit plaintiffs. The fees claimed for the hours representing the not-forprofit plaintiffs must reflect those hours spent on already-compensated hours representing the for-profit plaintiffs. The not-for-profit plaintiffs joined this case in December 2013, and counsel claims 5.8 hours of work done more than fifteen months before that time. (Doc. 144, at 1, 13, 32, 44) (1 hour for J. Matthew Belz on July 9, 2012, and 4.8 hours for Professor Carl Esbeck in March through July 2012). The Court observes that the entries for these hours describe work relating to nonprofit entities, but these hours predate the filing of the not-for-profit plaintiffs’ claims to such an extent that, without specific information, the Court cannot conclude that they sufficiently relate to representation of the movant-plaintiffs. Rather, these hours enhance counsel's skill and expertise and are compensated in the hourly rates the Court agrees counsel deserve. Therefore, these hours are not compensable in the hours component of the lodestar amount.
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Additionally, many of the movant-plaintiffs’ filings are drawn directly from other attorney work in similar cases. As the Court has previously noted (Doc. 118), this is a practical litigation strategy, but the hours claimed in light of this substantial reliance must reflect that some of the value was provided by other counsel. Movant-plaintiffs claim a total of approximately 250 hours on these filings: approximately 50 hours on the second amended complaint, 80 hours on the opening brief seeking a temporary restraining order and a preliminary injunction, 65 hours on the reply brief, 30 hours on the motion for permanent injunction, and 25 hours on the permanent injunction reply brief. (Doc. 144, at 32-33). The government has produced comparable filings in East Texas Baptist University, No. 4:12 CV 3009 (S.D. Tex.) (“ETBU”), Catholic Diocese of Nashville, No. 3:13 CV 1303 (M.D. Tenn.) (“CDN”), and Catholic Benefits Association LCA (“CBA”) v. Sebelius et al., No. 5:14 CV 240 R (W.D. Okla.). (Doc. 154, Exs. 1-6; Doc. 164, Exs. 1-2).
The not-for-profit plaintiffs joined this action in the second amended complaint. (Doc. 61, filed December 4, 2013). That pleading added 46 paragraphs to the first amended complaint: some information about plaintiffs in approximately 8 different paragraphs, as well as substantive allegations about the accommodation process in paragraphs 115-52. (Id.). The second amended complaint reflects a strong reliance on the first amended complaint in ETBU, filed four months earlier on August 6, 2013. (Doc. 154, Exs. 2-3). The Court believes that counsel would reasonably apply their experience and expertise to the review of similar cases in other courts. Reflecting the benefits counsel garnered by the review of those pleadings, this Court reduces by 20 percent the claimed hours in this case that are classified by plaintiffs as work, research, or revision of the second amended complaint after August 6, 2013. This results in a reduction of attorney Tim Belz’s 31.6 hours to 25.28 hours and J. Matthew Belz’s 15.2 hours to 12.16.
Plaintiffs’ memorandum in support of their motion for a temporary restraining order and a preliminary injunction similarly reflects consideration of the memorandum filed in ETBU on August 30, 2013. (Doc. 154, Exs. 4-5). In the 36-page memorandum,
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much of the material is similar to material found in the ETBU memorandum. (Id.). The Court recognizes that counsel also prepared two motions and two five-page declarations along with the memorandum (Docs. 62-64). The Court reduces the time claimed in preparing this motion after August 30, 2013, by 20 percent: attorney Tim Belz’s 31.2 hours are reduced to 24.96 hours and attorney J. Matthew Belz’s 44.8 hours are reduced to 35.84 hours.
Plaintiffs’ reply brief, filed December 25, 2013, reflects strong consideration of the reply filed in CDN nine days earlier on December 16, 2013. (Doc. 154, Exs. 6-7). The Court accordingly reduces the time claimed for preparing this pleading by 20 percent. This results in a reduction of Tim Belz’s 30.5 hours to 24.4 hours and J. Matthew Belz’s 28.5 hours to 22.8 hours.
Similarly the movant-plaintiffs' memorandum in support of their motion for a permanent injunction (Doc. 139, filed Nov. 17, 2017) benefitted from a review of CBA’s motion for permanent injunction, filed November 1, 2017. (Docs. 139, 164, Ex. 1). The Court reduces by 20 percent those hours classified by plaintiffs as work, research, or revision of the memorandum after November 1, 2017. This results in a reduction of attorney Tim Belz’s 17.4 hours to 13.92 hours; attorney J. Matthew Belz’s 12 hours are reduced to 9.6 hours; and attorney Carl Esbeck’s 3.7 hours are reduced to 2.96.
Finally, the movant-plaintiffs’ reply in support of their motion for permanent injunction (Doc. 151, filed December 15, 2017) also reflects strong consideration of CBA’s reply filed December 4, 2017 (Doc. 164, Ex. 2), and time claimed for its preparation will reflect this consideration. The Court reduces by 20 percent those hours classified by plaintiffs as work, research, or revision of the reply after December 4, 2017. This results in a reduction of attorney Tim Belz’s 11.1 hours to 8.88 hours; attorney J. Matthew Belz’s 11.8 hours are reduced to 9.44 hours; and attorney Carl Esbeck’s 3.4 hours are reduced to 2.72 hours.
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3. Fees for fee claim litigation Plaintiffs claim a total of 108 hours for working on the two fee claim motions in this case. (Docs. 144, 162). “Time spent preparing fee applications is generally compensable,” El-Tabech v. Clarke, 616 F.3d 834, 834-44 (8th Cir. 2010), but not when this time is excessive or “result[s] in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government challenges plaintiffs’ fees-on-fees claims as based on excessive numbers of hours. (Doc. 164). Plaintiffs have 59.2 hours of time entries related to their first motion, which was filed on December 5, 2017, and which claimed hours from July 9, 2012, to November 6, 2017. (Doc. 144). This work consisted of a 23-page motion, 10 pages of which discussed the background of the case, and 7 pages of which discussed the attorney fee rates that this Court already approved in this case for these attorneys in 2015. (Docs. 118, 144). In addition, counsel submitted their timekeeping records; copies of briefs filed before the Supreme Court; affidavits from each of plaintiffs’ three attorneys, ranging from two to three pages; the resumes of the attorneys; and affidavits from two other attorneys regarding customary rates. (Doc. 144). In their supplemental motion, filed on March 30, 2018 (Doc. 162), plaintiffs addressed hours expended since November 6, 2017. (Doc. 163). This includes a total of 40.8 hours on their 15-page reply to the government’s brief in opposition to the fee motion. (Doc. 156). In contrast, plaintiffs claim a total of 8 hours on their supplemental fee application for work from November 8, 2017, to March 30, 2018, which consisted of a 6-page motion, timekeeping records, and three one-page affidavits. (Doc. 163, Ex. 3). The time spent on this motion was reasonable. But the time spent on the preceding motion and reply was excessive. A claim of five days of attorney work on the reply memorandum and over seven days of attorney work to prepare the initial motion is excessive. The Court will reduce the claimed time for these documents by 30 percent, reducing the hours for attorney J.
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Matthew Belz from 24 to 16.8 hours and for Tim Belz from 35.2 to 24.64 hours on the initial motion; and from 20.8 to 14.56 hours for J. Matthew Belz and 19.7 to 13.79 hours for Tim Belz on the reply.
4. Fees for strategy-planning, conferencing, and oral argument preparation On appeal, plaintiffs’ counsel reported a total of 752.4 hours of work, including 251.8 hours on initial correspondence and briefing, 123.3 hours on 28(j) letters, 85.6 hours on correspondence, research, and status report work, and 102.8 hours on oral argument preparation. (Doc. 144, Ex. 2). The Court finds counsel’s 102.8 hours on oral argument preparation to be excessive. Plaintiffs’ lead counsel asserts “more than 30 years [of] experience… in constitutional law, with a particular emphasis on religious liberty.” (Doc. 144, Ex. 6 at 2). This justifies the accepted rate per hour for plaintiffs' experienced counsel. This factor also militates toward a reduction of the required hours for presentation preparation. See Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003) (finding that the presence of “lead counsel [who] is an expert in this area” should result in more efficient resolution). The Court finds Carl Esbeck’s timekeeping entries for 12.6 hours in oral argument preparation to be sufficiently specific and reasonable, but it will reduce Tim and J. Matthew Belz’s oral argument preparation time by 20 percent, reducing attorney Tim Belz’s 58.8 hours to 47.04 and J. Matthew Belz’s 31.5 hours to 25.2 hours. As for the remaining hours on appellate work, plaintiffs’ lead counsel claims that “the hours I report in the invoices submitted to the Court represent substantially fewer hours than I actually spent on this matter[.]” (Doc. 144, Ex. 6 at 3). However, no record has been submitted of the number of hours excluded in plaintiffs’ application for attorneys’ fees. Many time entries contain multiple tasks or insufficient detail to enable the Court to determine the claimed hours were reasonable. For example, the timekeeping report contains over fifty entries referring to communications with other attorneys in similar cases. (Doc. 144, Ex. 1; Doc. 163, Ex. 1) (see also Doc. 145 at 16 n. 3). In most
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of these entries, these communications are recorded in a string of other tasks and it is not clear how much time was spent on each task, nor is there enough information about the nature of these communications to determine whether they are compensable.
Instead of a line-by-line adjustment, the Court will apply a percentage reduction to adjust for the imprecise and excessive billing. Because Counsel has not disclosed the time excluded from the timekeeping logs, and because the time entries for Tim and J. Matthew Belz are in many cases too general for the Court to adequately evaluate, or involve a long string of tasks with no breakdown of the time spent on each task,2 the Court reduces the total for each of these attorneys by a further 5 percent.
The Court awards attorneys’ fees for the work done on plaintiffs’ amicus brief in Zubik v. Burwell, 136 S. Ct. 1557, 1560 (2016). This was a related case and played an important role in plaintiffs prevailing in this case, although they achieved only limited success (the Supreme Court vacated the Eighth Circuit judgment and remanded, “express[ing] no view on the merits” of the case). HHS v. CNS Int’l Ministries, 136 S. Ct. 2006 (2016). Therefore, the Court will not reduce the claimed attorneys’ fees for plaintiffs’ participation as amicus.
Finally, the Court will not reduce the time or costs plaintiffs' counsel spent on other work before the Supreme Court.
2 See, e.g., time entries for 7/8/13 (5.6 hours for “Research regarding religious nonprofit status given passage of Final rule; work on amendment of pleadings; two telephone conferences with David Melton, General counsel for nonprofits”); 10/28/13 (4.4 hours for “Communications with various attorneys regarding status of nonprofit religious cases across country; review same”); 12/11/13 (3.8 hours for “Review/revise all documents; file all”); 6/3/14 (4.5 hours for “Work on brief”); 2/12/15 (4.9 hours for “Fly speck Geneva College opinion from the Third Circuit, for purpose of filing a Rule 28(j) letter responding to the Government’s 28(j) letter; share research with attorneys similarly situated and speak to client regarding same; research for and prepare Rule 28(j) response letter for filing in the 8th Circuit”); 1/25/17 (2.2 hours for “Telephone conferences and emails to co-counsel and clients over past week”) (Doc. 144, Ex. 1).
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CONCLUSION AND ORDER Applying these considerations, IT IS HEREBY ORDERED that the motions of plaintiffs for attorney fees and expenses (Docs. 144, 162) are GRANTED IN PART and DENIED IN PART. The Court finding that the following hourly rates and hours of effort are reasonable compensation for plaintiffs’ legal representation, rounded to the nearest hour, IT IS FURTHER ORDERED that defendants must pay plaintiffs CNS and HCC the following amounts as reasonable attorney fees:

Reduction Reduction Reduction Other Hours as

Product

Hours for Prior for Fee for Oral Excessive Determined Hourly of Hours

Attorney Claimed Work Litigation Argument Hours by Court Rate and Rate

T. Belz

684

24

16

12

34

J.M. Belz

432

24

13

6

22

C. Esbeck

81

6

0

0

0

598 $450 $269,100 367 $250 $91,750 75 $450 $33,750

TOTAL

1197

54

29

18

56

1040

$394,600

IT IS FURTHER ORDERED that defendants must pay plaintiffs the reasonable sum of $1,753.72 as expenses in this case.

Signed on August 9, 2018.

/s/ David D. Noce UNITED STATES MAGISTRATE JUDGE

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 CLOSED,FULLCON
U.S. District Court Eastern District of Missouri (Hannibal) CIVIL DOCKET FOR CASE #: 2:12−cv−00092−DDN

Sharpe Holdings, Inc. et al v. United States Department of Health and Human Services et al Assigned to: Magistrate Judge David D. Noce Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 12/20/2012 Date Terminated: 02/13/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Sharpe Holdings, Inc. a Missouri Corporation

represented by Timothy Belz OTTSEN AND LEGGAT LC 112 S. Hanley Road Suite 200 St. Louis, MO 63105−3418 314−726−2800 Fax: 314−863−3821 Email: tbelz@olblaw.com ATTORNEY TO BE NOTICED

Plaintiff
Rita Joanne Wilson a Missouri resident

represented by Timothy Belz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Judi Diane Schaefer a Missouri resident

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Charles N. Sharpe a Missouri resident

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
CNS Corporation a Missouri Corporation

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ozark National Life Insurance Company a Missouri Corporation

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
N.I.S. Financial Services, Inc. a Missouri Corporation

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
CNS International Ministries, Inc. A Missouri Non−Profit Corporation

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Heartland Christian College A Missouri Non−Profit Corporation V. Defendant United States Department of Health and Human Services
Defendant Kathleen Sebelius in her official capacity as the Secretary of the United States Department of Health and Human Services
Defendant United States Department of the Treasury

represented by Timothy Belz (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski U.S. DEPARTMENT OF JUSTICE − CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530 202−616−2035 Fax: 202−616−8470 Email: jacek.pruski@usdoj.gov TERMINATED: 04/02/2015 LEAD ATTORNEY
Michelle R Bennett U.S. DEPARTMENT OF JUSTICE − CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Bahr Moore OFFICE OF U.S. ATTORNEY 111 S. Tenth Street 20th Floor St. Louis, MO 63102 314−539−3991 Fax: 314−539−2777 Email: christina.moore@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Bahr Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 04/02/2015

Defendant Timothy F. Geithner in his official capacity as the Secretary of the United States Department of the Treasury TERMINATED: 06/14/2013
Defendant United States Department of Labor
Defendant Hilda L. Solis in her official capacity as Secretary of the United States Department of Labor TERMINATED: 06/14/2013
Defendant Seth D. Harris in his official capacity as Acting Secretary of the United States Department of Labor TERMINATED: 12/04/2013
Defendant Jacob J. Lew in his official capacity as the Secretary of the United States Department of the Treasury

LEAD ATTORNEY
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Bahr Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Christina Bahr Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina Bahr Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Christina Bahr Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Christina Bahr Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
represented by Christina Bahr Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Thomas E. Perez in his official capacity as the Secretary of the United States Department of Labor
Amicus American Civil Liberties Union

Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christina Bahr Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) TERMINATED: 04/02/2015 LEAD ATTORNEY
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 906 Olive St. Suite 1130 St. Louis, MO 63101−1448 314−669−3420 Fax: 314−652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri AMERICAN CIVIL LIBERTIES UNION FOUNDATION − New York 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel I. Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW 6th Floor Washington, DC 20005 202−548−6604 Fax: 202−546−0738 Email: dmach@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union − Eastern Missouri

Jennifer Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION − New York 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: jlee@aclu.org LEAD ATTORNEY
Grant R. Doty US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION − St Louis 1222 Spruce St. Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: 314−539−7895 Email: grant.doty@eeoc.gov TERMINATED: 04/03/2015
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel I. Mach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) LEAD ATTORNEY
Grant R. Doty (See above for address) TERMINATED: 04/03/2015

Date Filed 12/20/2012
12/20/2012 12/20/2012

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−3610444, in the amount of $350 Non−Jury Demand,, filed by Sharpe Holdings, Inc..(Belz, Timothy) (Additional attachment(s) added on 12/20/2012: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons Dept of Labor, # 4 Summons Dept of Health and Human Services, # 5 Summons Dept of Treasury) (BAK). (Additional attachment(s) added on 12/20/2012: # 6 Summons Atty General, # 7 Summons AUSA) (BAK). (Entered: 12/20/2012)
2 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 12/20/2012)
3 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 12/20/2012)

12/20/2012 12/20/2012 12/20/2012 12/20/2012 12/20/2012 12/26/2012
12/27/2012 12/27/2012 12/27/2012 12/28/2012 12/28/2012 12/28/2012 12/28/2012

4 MEMORANDUM in Support of Motion re 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Belz, Timothy) (Entered: 12/20/2012)
5 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Sharpe Holdings, Inc.. Parent companies: CNS Corp., Subsidiaries: None, Publicly held company: None,. (Belz, Timothy) (Entered: 12/20/2012)
6 MEMORANDUM by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 12/20/2012)
Case Opening Notification − 5 Summons(es) issued, Consents issued: 1, Judge Assigned: U.S. Magistrate Judge David D. Noce. The summons were emailed to attorney Timothy Belz. (BAK) (Entered: 12/20/2012)
Pursuant to Local Rule 2.08, the assigned/referred magistrate judge is designated and authorized by the court to exercise full authority in this assigned/referred action or matter under 28 U.S.C. Sec. 636 and 18 U.S.C Sec. 3401. (CSAW) (Entered: 12/20/2012)
7 ORDER: IT IS HEREBY ORDERED that a hearing on plaintiffs motion for a temporary restraining order and preliminary injunction is set for Monday, December 31, 2012, at 9:00 a.m. in the courtroom of the undersigned. Counsel may participate in the hearing by telephone by notifying chambers (314.244.7630) of his or her intent to do so twenty−four (24) hours in advance of the scheduled hearing. IT IS FURTHER ORDERED that counsel for the government shall file their entry of appearance with the court as soon as possible. Hearing set for 12/31/2012 09:00 AM in Courtroom 17N before Magistrate Judge David D. Noce. (copy of order emailed to jacek.pruski@usdoj.gov) Signed by Magistrate Judge David D. Noce on 12/26/2012. (KMS) (Entered: 12/26/2012)
8 MEMORANDUM in Support of Motion re 2 MOTION for Temporary Restraining Order and Preliminary Injunction (Supplemental) filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 12/27/2012)
9 ENTRY of Appearance by Jacek Pruski for Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/27/2012)
10 Docket Text ORDER: GRANTING 3 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Sharpe Holdings, Inc.. Signed by Magistrate Judge David D. Noce on 12/27/12. (KKS) (Entered: 12/27/2012)
11 ENTRY of Appearance by Christina Bahr Moore for Defendants Timothy F. Geithner, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Moore, Christina) (Entered: 12/28/2012)
12 FULL CONSENT has been received by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Plaintiffs Judi Diane Schaefer, Charles N. Sharpe, Sharpe Holdings, Inc., Rita Joanne Wilson. (KKS) (Entered: 12/28/2012)
13 MOTION for Leave to File in Excess of Page Limitation Memorandum in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/28/2012)
14 MEMORANDUM in Opposition re 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit Triune, # 2 Exhibit Autocam, # 3 Exhibit Hobby Lobby 10th Cir., # 4 Exhibit Grote, # 5 Exhibit Articles of Incorporation − Sharpe Holdings, Inc., # 6 Exhibit

12/30/2012 12/31/2012
12/31/2012 12/31/2012 12/31/2012 12/31/2012
01/03/2013 01/03/2013 01/07/2013 01/07/2013 01/08/2013 01/08/2013 01/09/2013

American Pulverizer, # 7 Exhibit Autocam 6th Cir.)(Pruski, Jacek) (Entered: 12/28/2012)
15 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Belz, Timothy) (Entered: 12/30/2012)
16 Docket Text ORDER: GRANTING 13 MOTION for Leave to File in Excess of Page Limitation Memorandum in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. Signed by Magistrate Judge David D. Noce on 12/31/12. (KKS) (Entered: 12/31/2012)
17 Minute Entry for proceedings held before Magistrate Judge David D. Noce: Parties present for a hearing on the Motion for Temporary Restraining Order and Preliminary Injunction filed by the plaintiffs [Doc # 2 ]. Court heard oral arguments and took matters under submission. Court to issue a written order. (Court Reporter: Susan Moran.) (FTR Gold: Yes, as backup.) (KKS) (Entered: 12/31/2012)
18 NOTICE Filing of Supplemental Exhibit: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit)(Belz, Timothy) (Entered: 12/31/2012)
19 NOTICE Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit)(Belz, Timothy) (Entered: 12/31/2012)
20 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, Judi Diane Schaefer, and Rita Joanne Wilson for a temporary restraining order is sustained. IT IS FURTHER ORDERED that defendants are TEMPORARILY RESTRAINED from enforcing the ACA Mandate regulations regarding abortifacient devices and related counseling. See 42 U.S.C. § 300gg−13(a)(4), 26 U.S.C. § 4980D, § 4980H, and 29 U.S.C. § 1132. IT IS FURTHER ORDERED that the motion of plaintiffs for a preliminary injunction is set for further hearing on January 14, 2013, at 10:00 a.m. Signed by Magistrate Judge David D. Noce on 12/31/12. (KXS) (Entered: 12/31/2012)
21 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Attachments: # 1 Proposed Brief Amici Curiae)(Rothert, Anthony) (Entered: 01/03/2013)
22 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. Parent companies: none, Subsidiaries: none, Publicly held company: none,. (Rothert, Anthony) (Entered: 01/03/2013)
23 Docket Text ORDER Re: 21 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 1/7/2013. (KMS) (Entered: 01/07/2013)
24 Amicus Curiae Brief of the American Civil Liberties Union and American Civil Liberties Union − Eastern Missouri in opposition to 2 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (KMS) (Entered: 01/07/2013)
25 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri (Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (KKS) (Entered: 01/08/2013)
Receipt 4644032993 in the amount of $100.00 for PRO HAC VICE on behalf of BRIGITTE AMIRI (CCAM) (Entered: 01/09/2013)
26 Docket Text ORDER Re: 25 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri (Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 1/9/2013. (KMS) (Entered: 01/09/2013)

01/10/2013 01/11/2013 01/12/2013 01/14/2013
01/14/2013
01/31/2013 02/01/2013 02/05/2013
02/08/2013 02/11/2013 02/11/2013
02/12/2013 02/12/2013 03/01/2013

27 ENTRY of Appearance by Grant R. Doty for Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Doty, Grant) (Entered: 01/10/2013)
28 SUPPLEMENTAL BRIEF REGARDING EXEMPTIONS TO THE CONTRACEPTIVE MANDATE by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Belz, Timothy) (Entered: 01/11/2013)
29 REPLY to Response to Motion re 2 MOTION for Temporary Restraining Order and Preliminary Injunction and Brief of ACLU filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 01/12/2013)
30 Minute Entry for Motion Hearing held before Magistrate Judge David D. Noce on 1/14/2013 re 2 MOTION for Preliminary Injunction filed by Sharpe Holdings, Inc.. Court heard oral arguments and took matters under submission. Court to issue a written order. (Court Reporter: Teri Hopwood & recorded on FTR Gold as backup.) (Proceedings: 10:09 a.m. − 11:11 a.m.) (KKS) (Entered: 01/14/2013)
31 ORDER CONTINUING TEMPORARY RESTRAINING ORDER : IT IS HEREBY ORDERED that the temporary restraining order currently in place to prohibit defendants from enforcing the ACA Mandate and its regulations regarding abortifacient devices and related counseling, see 42 U.S.C. § 300gg−13(a)(4), 26 U.S.C. § 4980D, § 4980H, and 29 U.S.C. § 1132, shall remain in full force and effect until the court finally determines plaintiffs' entitlement or not to further injunctive relief. Signed by Magistrate Judge David D. Noce on 1/14/13. (KKS) (Entered: 01/14/2013)
32 NOTICE Filing of Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 01/31/2013)
33 NOTICE Filing of Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 02/01/2013)
34 NOTICE Defendants' Response to Plaintiffs' Notices of Supplemental Authority: by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 33 Notice (Other), 32 Notice (Other) (Pruski, Jacek) (Entered: 02/05/2013)
35 Consent MOTION for Extension of: Time to File a Response to Plaintiffs' Complaint by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 02/08/2013)
36 RESPONSE to Motion re 35 Consent MOTION for Extension of: Time to File a Response to Plaintiffs' Complaint filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 02/11/2013)
37 NOTICE by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 2 MOTION for Temporary Restraining Order and Preliminary Injunction (Notice of Supplemental Authority) (Attachments: # 1 Conestoga Decision)(Pruski, Jacek) (Entered: 02/11/2013)
38 Docket Text ORDER: as to All Defendants Re: 35 Consent MOTION for Extension of: Time to File a Response to Plaintiffs' Complaint by all Defendants; GRANTED − SO ORDERED. (Answer due 4/5/13). Signed by Magistrate Judge David D. Noce on 2/12/13. (KJS) (Entered: 02/12/2013)
39 NOTICE by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 36 Response to Motion (Pruski, Jacek) (Entered: 02/12/2013)
40 NOTICE Supplemental Authority: by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 2

03/11/2013
03/14/2013 03/15/2013 03/18/2013 03/21/2013
03/21/2013 04/03/2013
05/17/2013 06/13/2013 06/14/2013
06/14/2013 06/14/2013

MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit Briscoe v. Sebelius)(Pruski, Jacek) (Entered: 03/01/2013)
41 MOTION to Stay Proceedings and Notice of Non−Opposition to Plaintiffs Motion for Preliminary Injunction by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) Modified on 3/18/2013 (KMS). (Entered: 03/11/2013)
42 Consent MOTION for Extension of: Time to File a Response to Plaintiffs' Complaint by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 03/14/2013)
43 ORDER − IT IS HEREBY ORDERED that a telephonic hearing on defendants motion to stay (Doc. 41 ) is set for Thursday, March 21, 2013 at 2:00 p.m. The deputy clerk will initiate the call from the courtroom. Signed by Magistrate Judge David D. Noce on 3/15/13. (KJS) (Entered: 03/15/2013)
44 RESPONSE to Motion re 41 MOTION to Stay Proceedings and Notice of Non−Opposition to Plaintiffs Motion for Preliminary Injunction filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 03/18/2013)
45 REPLY to Response to Motion re 41 MOTION to Stay Proceedings and Notice of Non−Opposition to Plaintiffs Motion for Preliminary Injunction filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 03/21/2013)
46 Minute Entry for proceedings held before Magistrate Judge David D. Noce: Motion Hearing held on 3/21/2013 re 42 Consent MOTION for Extension of: Time to File a Response 41 MOTION to Stay; arguments heard; matter taken under submission. (FTR Gold Operator initials:KMS.) (FTR Gold: Yes.) (KMS) (Entered: 03/21/2013)
47 NOTICE Supplemental Authority: by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 41 MOTION to Stay Proceedings and Notice of Non−Opposition to Plaintiffs Motion for Preliminary Injunction (Attachments: # 1 Exhibit Triune Health Grp., Inc. v. HHS − Order, # 2 Exhibit Hall v. Sebelius − Order)(Pruski, Jacek) (Entered: 04/03/2013)
48 NOTICE Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 05/17/2013)
49 MOTION for Leave to File First Amended Petition, to Substitute Defendants and to Join Additional Plaintiffs by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 06/13/2013)
50 ORDER − IT IS HEREBY ORDERED that the motion of plaintiffs for leave to filea first amended complaint, to substitute defendants, and to add three additional plaintiffs (Doc. 49 ) is sustained. The Clerk of the Court shall file Doc. 49 −1 as a separate pleading. Signed by Magistrate Judge David D. Noce on 6/14/13. (KJS) (Entered: 06/14/2013)
51 MOTION for Preliminary Injunction by Plaintiff Ozark National Life Insurance Company. (Belz, Timothy) (Entered: 06/14/2013)
52 AMENDED COMPLAINT against defendant All Defendants,Terminating Timothy F. Geithner (in his official capacity as the Secretary of the United States Department of the Treasury) and Hilda L. Solis (in her official capacity as Secretary of the United States Department of Labor). Amendment to 1 Complaint filed by Rita Joanne Wilson, Sharpe Holdings, Inc., Judi Diane Schaefer, Ozark National Life Insurance Company, CNS Corporation, Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., Seth D. Harris, Jacob J. Lew. Related document: 1 Complaint,, filed by Sharpe Holdings, Inc..(KJS) (Entered: 06/14/2013)

06/19/2013 06/26/2013 06/28/2013
09/30/2013
11/19/2013 11/19/2013 12/04/2013 12/04/2013
12/11/2013 12/11/2013

54 SUPPLEMENTAL Consent Form re 12 Full Consent to a Magistrate by NEWLY ADDED Plaintiffs CNS Corporation, N.I.S. Financial Services, Inc., Ozark National Life Insurance Company. (KJS) (Entered: 06/19/2013)
55 MOTION for Ruling on Motion for Preliminary Injunction by Plaintiff Ozark National Life Insurance Company. (Belz, Timothy) (Entered: 06/26/2013)
56 MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that defendants, their agents, officers and employees are prohibited from applying and enforcing against these plaintiffs, their employee health plan(s), or their insurer(s) the statute and regulations that require plaintiffs to provide 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," as prescribed by a health care provider, 77 Fed. Reg. 8725, as well as any penalties, fines, assessments, or enforcement actions for noncompliance, including those found in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. § 1132, to the extent these regulations require coverage of services that plaintiffs believe to be abortifacients. IT IS FURTHER ORDERED that the motion of defendants for a second extension of time to file a response to plaintiffs' original and amended complaints (Doc. 42 ) is sustained. Defendants may have until 28 days, from the date the court issues its ruling on the pending motion of defendants to stay these proceedings, to file a response to the plaintiffs' complaints. IT IS FURTHER ORDERED that the motion of plaintiffs for a ruling (Doc. 55 ) is denied as moot. Signed by Magistrate Judge David D. Noce on 06/28/2013. (DJO) (Entered: 06/28/2013)
57 ORDER STAYING PROCEEDINGS AND ADMINISTRATIVELY TERMINATING DOC. 2 − IT IS HEREBY ORDERED that the Clerk of the Court administratively terminate Doc. 2 , the original motion of plaintiffs for a preliminary injunction. IT IS FURTHER ORDERED that the injunction issued by the court on June 28, 2013 (Doc. 56 ) quoted above shall remain in effect for all parties until further order of this court on that matter. IT IS FURTHER ORDERED that the motion of the defendants for a stay of these proceedings (Doc. 41 ) is sustained. All proceedings in this action are STAYED pending the final resolution of the appeal in O'Brien v. HHS, No. 12−3357, or in Annex Medical, Inc. v. Sebelius, No. 13−1118, whichever occurs first, including the time any proper application s) for relief is before the Supreme Court. Thereafter, this court will set a status and scheduling proceeding regarding this action. Signed by Magistrate Judge David D. Noce on 9/30/13. (KJS) (Entered: 09/30/2013)
58 MOTION for Leave to File Second Amended Complaint Adding Plaintiffs by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 11/19/2013)
59 MEMORANDUM in Support of Motion re 58 MOTION for Leave to File Second Amended Complaint Adding Plaintiffs filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 11/19/2013)
60 Docket Text ORDER Re: 58 MOTION for Leave to File Second Amended Complaint Adding Plaintiffs by Plaintiff Sharpe Holdings, Inc. ; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 12/4/2013. (KMS) (Entered: 12/04/2013)
61 SECOND AMENDED COMPLAINT against defendant Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Thomas E. Perez,Terminating Seth D. Harris (in his official capacity as Acting Secretary of the United States Department of Labor), filed by N.I.S. Financial Services, Inc., CNS Corporation, Judi Diane Schaefer, Rita Joanne Wilson, Ozark National Life Insurance Company, Charles N. Sharpe, Sharpe Holdings, Inc., CNS International Ministries, Inc., Heartland Christian College.(KMS) (Entered: 12/04/2013)
62 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff CNS International Ministries, Inc. & Heartland Christian College. (Belz, Timothy) Modified on 12/12/2013−added filer (KKS). (Entered: 12/11/2013)
63 MOTION for Leave to File in Excess of Page Limitation by Plaintiff CNS International Ministries, Inc. & Heartland Christian College. (Belz, Timothy) Modified on 12/12/2013−added filer (KKS). (Entered: 12/11/2013)

12/11/2013 12/17/2013 12/17/2013 12/17/2013
12/18/2013
12/18/2013
12/19/2013 12/19/2013
12/19/2013
12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/23/2013

64 MEMORANDUM in Support of Motion re 62 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff CNS International Ministries, Inc. & Heartland Christian College. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Belz, Timothy) Modified on 12/12/2013 (KKS). (Entered: 12/11/2013)
65 NOTICE SUBSTITUTION OF THOMAS E. PEREZ AS SECRETARY OF LABOR: by Plaintiff Sharpe Holdings, Inc. (Belz, Timothy) (Entered: 12/17/2013)
66 NOTICE the Parties with Respect to Pending Motion: by Plaintiff CNS International Ministries, Inc. JOINT (Belz, Timothy) (Entered: 12/17/2013)
69 FULL CONSENT has been received by Plaintiffs CNS Corporation, CNS International Ministries, Inc., Heartland Christian College, N.I.S. Financial Services, Inc., Ozark National Life Insurance Company, Judi Diane Schaefer, Charles N. Sharpe, Sharpe Holdings, Inc., Rita Joanne Wilson, Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (KJS) (Entered: 12/18/2013)
67 Consent MOTION for Leave to File in Excess of Page Limitation Defs.' Mem. in Opp'n to Pls.' Mot. for TRO & PI by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/18/2013)
68 MEMORANDUM in Opposition re 62 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/18/2013)
70 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Amiri, Brigitte) (Entered: 12/19/2013)
71 Docket Text ORDER: Re: 67 Consent MOTION for Leave to File in Excess of Page Limitation filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis; GRANTED (35 pages) − SO ORDERED. Signed by Magistrate Judge David D. Noce on 12/19/13. (KJS) (Entered: 12/19/2013)
72 NOTICE Supplemental Authority: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 62 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit Priests for Life v. Sebelius − Mem. Op.)(Pruski, Jacek) (Entered: 12/19/2013)
Receipt 4644040048 in the amount of $100.00 for PRO HAC VICE on behalf of JENNIFER LEE (CCAM) (Entered: 12/22/2013)
Receipt 4644040049 in the amount of $100.00 for PRO HAC VICE on behalf of DANIEL MACH (CCAM) (Entered: 12/22/2013)
75 MOTION for Leave to Appear Pro Hac Vice Jennifer Lee. The Certificate of Good Standing was attached.(Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Attachments: # 1 Certificate of Good Standing)(KMS) (Entered: 12/23/2013)
76 MOTION for Leave to Appear Pro Hac Vice Daniel Mach. The Certificate of Good Standing was attached.(Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Attachments: # 1 Certificate of Good Standing)(KMS) (Entered: 12/23/2013)
73 Docket Text ORDER Re: 70 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 12/23/2013. (KMS) (Entered: 12/23/2013)

12/23/2013 12/23/2013 12/25/2013 12/26/2013
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12/30/2013 02/27/2014 02/28/2014

74 AMICUS BRIEF by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (KMS) (Entered: 12/23/2013)
77 NOTICE Supplemental Authority: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 62 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius)(Pruski, Jacek) (Entered: 12/23/2013)
78 REPLY to Response to Motion re 62 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Plaintiff CNS International Ministries, Inc.. (Belz, Timothy) (Entered: 12/25/2013)
79 NOTICE Supplemental Authority: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 62 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Pruski, Jacek) (Entered: 12/26/2013)
80 NOTICE Filing of Supplemental Authority: by Plaintiff CNS International Ministries, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 12/27/2013)
81 NOTICE Filing of Supplemental Authority: by Plaintiff CNS International Ministries, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 12/27/2013)
82 Docket Text ORDER: Re: 76 MOTION for Leave to Appear Pro Hac Vice Daniel Mach, 75 MOTION for Leave to Appear Pro Hac Vice Jennifer Lee filed by American Civil Liberties Union − Eastern Missouri, American Civil Liberties Union; GRANTED − SO ORDERED. Signed by Magistrate Judge David D. Noce on 12/27/13. (KJS) (Entered: 12/27/2013)
83 NOTICE Supplemental Authority: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 62 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit Michigan Catholic Conference v. Sebelius)(Pruski, Jacek) (Entered: 12/27/2013)
84 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of plaintiffs CNS International Ministries, Inc. and Heartland Christian College for leave to file an overlength memorandum in support of their pending motion (Doc. 63) is sustained. IT IS FURTHER ORDERED that the motion of plaintiffs CNS International Ministries, Inc. and Heartland Christian College a temporary restraining order and preliminary injunction (Doc. 64) is sustained. The preliminary injunction and stay currently in effect (Docs. 56 , 57 ) are extended to plaintiffs CNS International Ministries, Inc. and Heartland Christian College. re: 63 62 . Signed by Magistrate Judge David D. Noce on 12/30/13. (KKS) (Entered: 12/30/2013)
ORDER RECEIPT: (see receipt) Docket No: 84. mailed to party not notified electronically Mon Dec 30 12:36:24 CST 2013 (Stamm, Katie) (Entered: 12/30/2013)
85 NOTICE OF INTERLOCUTORY APPEAL as to 84 Memorandum & Order,, by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Entered: 02/27/2014)
86 NOTIFICATION OF INTERLOCUTORY APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 85 Notice of Interlocutory Appeal,. Notice of Appeal filed on 02/27/2014 by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(DLT) (Entered: 02/28/2014)

03/05/2014
03/05/2014
08/05/2014 08/05/2014 08/18/2014 08/19/2014 09/12/2014 10/01/2014
10/01/2014 10/01/2014 10/01/2014 10/10/2014 10/14/2014 10/22/2014

87 Briefing Schedule from USCA for 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis USCA Appeal Number: 14−1507 Method of Appendix due: 4/14/14 Notice of Appeal forwarded to panel: Yes Briefs due: 4/14/14 (KJS) Modified on 3/11/2014−edit filing date (KKS). (Entered: 03/06/2014)
88 Initial Notification from USCA for 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis USCA Appeal Number: 14−1507 Notice of Appeal forwarded to panel: No(KKS) (Entered: 03/10/2014)
89 MOTION to Lift Stay by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 08/05/2014)
90 MEMORANDUM in Support of Motion re 89 MOTION to Lift Stay filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 08/05/2014)
91 ORDER − IT IS HEREBY ORDERED that the parties confer and submit a joint status report and proposed scheduling plan for further proceedings in this case no later than September 12, 2014. (Status Report due by 9/12/2014.) Signed by Magistrate Judge David D. Noce on 8/18/14. (KJS) (Entered: 08/18/2014)
92 Docket Text ORDER: Re: 89 MOTION to Lift Stay filed by Sharpe Holdings, Inc; GRANTED − SO ORDERED. Signed by Magistrate Judge David D. Noce on 8/19/14. (KJS) (Entered: 08/19/2014)
93 STATUS REPORT by Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 09/12/2014)
94 ORDER SUSTAINING JOINT STATUS REPORT: IT IS HEREBY ORDERED that the defendants have until October 10, 2014 to determine how they desire to proceed in this action and to so advise the court and the plaintiffs. IT IS FURTHER ORDERED that the injunction issued by the court on June 28, 2013 (Doc. 56) remain in effect for all parties until further order of the court. IT IS FURTHER ORDERED that regarding the non−profit plaintiffs this action remain stayed pending the determination of defendants' appeal from this court's preliminary injunction, currently before the Eighth Circuit Court of Appeals. IT IS FURTHER ORDERED that the parties file a joint status report not later than 30 days after the conclusion of appellate proceedings. Signed by Magistrate Judge David D. Noce on 10/1/2014. (KMS) (Entered: 10/01/2014)
95 MOTION for Summary Judgment by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 10/01/2014)
96 MEMORANDUM in Support of Motion re 95 MOTION for Summary Judgment filed by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 10/01/2014)
97 STATEMENT of Material Facts re 95 MOTION for Summary Judgment filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit Sharpe 3rd Declaration, # 2 Exhibit Sharpe 1st Declaration)(Belz, Timothy) (Entered: 10/01/2014)
98 NOTICE Consent to Injunction and Judgment: by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 94 Scheduling Order,,, (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) (Entered: 10/10/2014)
99 NOTICE Response to Government Notice of Consent: by Plaintiff Sharpe Holdings, Inc. re 98 Notice (Other), (Attachments: # 1 Exhibit Conestoga Order, # 2 Exhibit Geneva College Order)(Belz, Timothy) (Entered: 10/14/2014)
100 NOTICE Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Belz, Timothy) (Entered: 10/22/2014)

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101 NOTICE Supplemental Authority: by Plaintiff Sharpe Holdings, Inc. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 12/17/2014)
102 ORDER AND PERMANENT INJUNCTION − IT IS HEREBY ORDERED that the motion of plaintiffs for summary judgment (Doc. 95 ) is sustained in that judgment is entered in favor of all plaintiffs, both individual and corporate, and against defendants on plaintiffs' claim under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. All other claims of the plaintiffs are dismissed. IT IS FURTHER ORDERED as follows:Defendants, their agents, officers and employees are PERMANENTLY ENJOINED and prohibited from applying and enforcing against any of the named plaintiffs, individual or corporate, their employee health plan(s), or their insurer(s) the statute and regulations thatrequire plaintiffs, health plans, or insurers to provide plaintiffs' employees insurance coveragefor all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed bya health care provider, 77 Fed. Reg. 8725, as well as any penalties, fines, assessments, or enforcement actions for non−compliance, including those found in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. § 1132, to the extent these regulations require coverage of services that plaintiffs believe to be abortifacients.IT IS FURTHER ORDERED that this Order and Injunction does not apply with respect to any changes in any statute or regulation that are enacted or promulgated after this date. Should any future legislation or regulation come into effect providing for−profit entities a religious accommodation to the contraceptive coverage mandate, the government may seek to enforce such legislation or regulation against plaintiffs. And nothing herein prevents plaintiffs from filing a new civil action to challenge any future changes.IT IS FURTHER ORDERED that pursuant to E.D.Mo. Local Rule 84−8.02, unless otherwise ordered, the parties are directed to confer within 30 days of this Order and attempt to reach a settlement on attorneys' fees and costs. If no settlement of attorneys' fees and costs is reached, plaintiffs may file a motion for the award of attorneys' fees and costs, within 30 days after this conference.. Signed by Magistrate Judge David D. Noce on 2/13/15. (KKS) (Entered: 02/13/2015)
103 ENTRY of Appearance by Michelle R Bennett for Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 04/01/2015)
104 MOTION to Withdraw as Attorney ;attorney/firm Jacek Pruski, U.S. Department of Justice by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 04/01/2015)
105 Docket Text ORDER Re: 104 MOTION to Withdraw as Attorney ;attorney/firm Jacek Pruski, U.S. Department of Justice by Defendants Timothy F. Geithner, Seth D. Harris, Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 4/2/2015. (KMS) (Entered: 04/02/2015)
106 MOTION to Withdraw as Attorney ;attorney/firm Grant R. Doty by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Doty, Grant) (Entered: 04/02/2015)
107 Docket Text ORDER Re: 106 MOTION to Withdraw as Attorney ;attorney/firm Grant R. Doty by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri ; ORDERED GRANTED. Signed by Magistrate Judge David D. Noce on 4/3/2015. (KMS) (Entered: 04/03/2015)
108 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 04/13/2015)
109 Docket Text ORDER: GRANTING 108 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Sharpe Holdings, Inc... Signed by Magistrate Judge David D. Noce on 4/14/15. (KKS) (Entered: 04/14/2015)

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110 MOTION for Attorney Fees by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) (Entered: 04/14/2015)
111 MEMORANDUM in Support of Motion re 110 MOTION for Attorney Fees filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9)(Belz, Timothy) (Entered: 04/14/2015)
112 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 04/20/2015)
113 Docket Text ORDER: Re: 112 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) ; ORDERED GRANTED, ( Response to Court due by 5/15/2015.) Signed by Magistrate Judge David D. Noce on 4/21/15. (JAB) Modified on 4/22/2015 (Response to Court date corrected) (JAB). (Entered: 04/21/2015)
114 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/11/2015)
115 Docket Text ORDER: GRANTING 114 Consent MOTION for Extension of Time to File Response/Reply as to 110 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. ( Response to Court due by 6/26/2015.). Signed by Magistrate Judge David D. Noce on 5/12/15. (KKS) (Entered: 05/12/2015)
116 MEMORANDUM in Opposition re 110 MOTION for Attorney Fees filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Declaration of Michelle Bennett, # 2 Ex. A, # 3 Ex. B, # 4 Ex. C, # 5 Ex. D, # 6 Ex. E, # 7 Ex. F)(Bennett, Michelle) (Entered: 05/19/2015)
117 REPLY to Response to Motion re 110 MOTION for Attorney Fees filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Belz, Timothy) (Entered: 05/26/2015)
118 MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of plaintiffs for attorneys' fees and expenses (Doc. 110 ) is sustained in part and denied in part. Defendants shall pay plaintiffs $138,282.50 as reasonable attorneys' fees and $350.00 in expenses. Signed by Magistrate Judge David D. Noce on 6/17/15. (JAB) (Entered: 06/17/2015)
119 MOTION for Entry of Final Judgment Pursuant to Rule 54(b) by Plaintiff Sharpe Holdings, Inc.. (Belz, Timothy) Modified text on 10/9/2015 (KKS). (Entered: 09/08/2015)
120 MEMORANDUM in Support of Motion for 119 final judgment filed by Plaintiff Sharpe Holdings, Inc.. (Attachments: # 1 Exhibit 1, # 2 2)(Belz, Timothy) Modified text on 10/9/2015 (KKS). (Entered: 09/08/2015)
121 OPINION from USCA re 85 Notice of Interlocutory Appeal, : USCA Appeal #: No. 14−1507; Affirm (KKS) (Entered: 09/17/2015)
122 USCA JUDGMENT as to 85 Notice of Interlocutory Appeal ; Before WOLLMAN, COLLOTON and BENTON, Circuit Judges. This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the

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judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. (KKS) (Entered: 09/17/2015)
123 RESPONSE to Motion 119 Entry of Final Judgment Pursuant to Rule 54(b) filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) Modified text on 10/9/2015 (KKS). (Entered: 09/18/2015)
124 MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion of the for− profit plaintiffs for entry of final judgment (Doc. 119) is sustained. IT IS FURTHER ORDERED that the Clerk of the Court enter final judgment in favor of plaintiffs Sharpe Holdings, Inc., Charles N. Sharpe, CNS Corporation, Ozark National Life Insurance Company, and N.I.S. Financial Services, Inc. against defendants. re: 119 MOTION for Entry of Final Judgment under Rule 54(b) filed by Plaintiff Sharpe Holdings, Inc.. Signed by Magistrate Judge David D. Noce on 10/9/15. (KKS) (Entered: 10/09/2015)
125 FINAL JUDGMENT REGARDING CLAIMS OF FOR−PROFIT PLAINTIFFS The Court having determined upon motion of plaintiffs Sharpe Holdings, Inc., Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., CNS Corporation, and Charles N. Sharpe, under Federal Rule of Civil Procedure 54(b) that there is no just reason to delay the entry of final judgment on the claims of these for−profit plaintiffs, see Memorandum filed herewith, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that final judgment is hereby entered in favor of plaintiffs Sharpe Holdings, Inc., Ozark National Life Insurance Company, N.I.S. Financial Services, Inc., CNS Corporation, and Charles N. Sharpe on their claims and against defendants. Defendants must pay the fees and expenses previously determined in favor of these plaintiffs, plus post−judgment interest thereon required by law.. Signed by Magistrate Judge David D. Noce on 10/9/15. (KKS) (Entered: 10/09/2015)
126 MANDATE of USCA as to 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis USCA #:14−1507 affirmed (KMS) (Entered: 11/09/2015)
127 LETTER from USCA regarding writ of certiorari filed with the U.S. Supreme Court USCA Appeal #: 14−1507(KMS) (Entered: 01/05/2016)
128 LETTER from USCA regarding writ of certiorari filed with the U.S. Supreme Court ; The Court today entered the following order in the above−entitled case: 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 Eighth Circuit in light of Zubik v. Burwell, 578 U. S. ___ (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by respondents health plans obtain, without cost, the full range of FDA approved contraceptives. Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation, respondents have made the Government aware of their view that they meet the requirements for exemption from the contraceptive coverage requirement on religious grounds. Id., at ___ (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on respondents for failure to provide the relevant notice. Justice Sotomayor, with whom Justice Ginsburg joins, concurs in the decision to grant, vacate, and remand in this case for the reasons expressed in Zubik v. Burwell, 578 U. S. ___ (2016) (Sotomayor, J., concurring). The judgment or mandate of this Court will not issue for at least twenty−five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. re 85 : USCA Appeal #: 14−1507(KKS) (Entered: 05/19/2016)
129 ORDER of USCA as to 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and

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Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis USCA Appeal #: No: 14−1507 ; Pursuant to the order of the U.S. Supreme Court, dated May 16, 2016, and the U.S. Supreme Court's mandate of June 17, 2016, this court's judgment, dated September 17, 2015, is vacated the mandate is hereby recalled, and the case is reopened. (KKS) (Entered: 06/22/2016)
130 ORDER of USCA as to 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis Regarding: Status Report USCA Appeal #: 14−1507;The court will withhold further action in this case pending receipt of the government's next status report. The status report is due on 10/07/2016. (CLO) Modified on 8/4/2016 (CLO). (Entered: 08/03/2016)
131 USCA JUDGMENT as to 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis. Appellant's motion to dismiss the appeal is granted. The appeal is hereby dismissed in accordance with the Federal Rules of Appellate Procedure 42(b). The request regarding fees, costs, and expenses is denied without prejudice to the filing of a bill of costs under Eighth Circuit Rule 39A(b) or a motion for fees under Eighth Circuit Rule 47A. The Court's mandate shall issue forthwith. (CLO) (Entered: 10/13/2017)
132 MANDATE of USCA as to 85 Notice of Interlocutory Appeal, filed by Jacob J. Lew, United States Department of Labor, United States Department of the Treasury, Kathleen Sebelius, Timothy F. Geithner, United States Department of Health and Human Services, Thomas E. Perez, Seth D. Harris, Hilda L. Solis USCA #:14−1507 DISMISSED (CLO) (Entered: 10/13/2017)
133 ORDER FOR JOINT STATUS REPORT: In light of the Judgment of the United States Court of Appeals in this case issued on October 13, 2017 (Doc. 131) and the mandate issued thereon (Doc. 132), IT IS HEREBY ORDERED that the parties confer and submit a joint report no later than November 13, 2017, on the status of this case and the scheduling of any further necessary proceedings. Status Report due by 11/13/2017. Signed by Magistrate Judge David D. Noce on 10/17/17. (CSG) (Entered: 10/17/2017)
134 ORDER of USCA as to 85 Notice of Interlocutory Appeal: Appellees' motion for bill of cost is granted. The appellees shall recover from the appellants the sum of $252.60 (Two Hundred Fifty−Two Dollars and Sixty Cents) as taxable cost on appeal. The clerk of the United States District Court is directed to place these costs in the previously issued mandate. USCA Appeal #: 14−1507 (JAB) (Entered: 10/24/2017)
135 Bill of Costs Taxed in amount of $ 252.60 against Defendant re 134 ORDER of USCA, 132 MANDATE of USCA (Attachments: # 1 Motion for Bill of Costs− Case No. 14−1507) (JAB) (Entered: 10/25/2017)
136 STATUS REPORT JOINT by CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 11/13/2017)
137 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 11/17/2017)
138 MOTION for Permanent Injunction and Declaratory Relief by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 11/17/2017)
139 MEMORANDUM in Support of Motion re 138 MOTION for Permanent Injunction and Declaratory Relief filed by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Belz, Timothy) (Entered: 11/17/2017)
140 Docket Text ORDER: Re: 137 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) ; ORDERED GRANTED. Signed by Magistrate Judge David

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D. Noce on 11/20/17. (JAB) (Entered: 11/20/2017)
141 Consent MOTION for Extension of Time to File Response/Reply as to 138 MOTION for Permanent Injunction and Declaratory Relief by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 11/21/2017)
142 Docket Text ORDER: Re: 141 Consent MOTION for Extension of Time to File Response/Reply as to 138 MOTION for Permanent Injunction and Declaratory Relief by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Thomas E. Perez, United States Department of Labor ; ORDERED SUSTAINED. Defendants' memorandum in opposition is due no later than December 8, 2017. Signed by Magistrate Judge David D. Noce on 11/22/2017. (SMB) (Entered: 11/22/2017)
143 ORDER of USCA: Appellees' motion for attorneys and expenses is remanded to the United States District Court for the Eastern District of Missouri. See 8th Cir. R. 47C(b). USCA Appeal #: 14−1507. (JAB) (Additional attachment(s) added on 12/5/2017: # 1 Attachment Appellees' motion for attorney fees and expenses, # 2 Attachment Appellants' response) (JAB). (Entered: 12/05/2017)
144 MOTION for Attorney Fees by Plaintiffs (Appellees) CNS International Ministries, Inc., Heartland Christian College. (JAB) (Entered: 12/06/2017)
145 RESPONSE to Motion re 144 MOTION for Attorney Fees filed by defendants (Appellants). (JAB) (Entered: 12/06/2017)
146 MEMORANDUM in Opposition re 138 MOTION for Permanent Injunction and Declaratory Relief filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/08/2017)
147 ORDER: IT IS HEREBY ORDERED that defendants supplement their response to plaintiffs motion for attorney fees and expenses, to address claims for fees incurred at the district court level, no later than December 29, 2017. IT IS FURTHER ORDERED that plaintiffs reply to both responses, if any, must be filed no later than January 15, 2018. Signed by Magistrate Judge David D. Noce on 12/8/17. (JAB) (Entered: 12/08/2017)
148 Consent MOTION for Extension of Time to File Response/Reply as to 144 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/11/2017)
149 Docket Text ORDER: Re: 148 Consent MOTION for Extension of Time to File Response/Reply as to 144 MOTION for Attorney Fees by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) ; ORDERED GRANTED( Response to Court due by 1/8/2018.) Signed by Magistrate Judge David D. Noce on 12/12/17. (JAB) (Entered: 12/12/2017)
150 ORDER SETTING HEARING ON MOTION: IT IS HEREBY ORDERED that, pursuant to Local E.D. Mo. Rule 4.02, a hearing on the motion of plaintiffs for a permanent injunction and declaratory relief (Doc. 138 ) is set for Friday, January 26, 2018, at 10:00 a.m. in the undersigneds courtroom. Signed by Magistrate Judge David D. Noce on 12/12/17. (JAB) (Entered: 12/12/2017)
151 REPLY to Response to Motion re 138 MOTION for Permanent Injunction and Declaratory Relief filed by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Attachments: # 1 Exhibit Exhibit 1)(Belz, Timothy) (Entered:

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12/15/2017)
152 SUPPLEMENTAL Brief Regarding Plaintiffs' Motion for Permanent Injunction & Declaratory Relief by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/22/2017)
153 Docket Text ORDER: ; ORDERED hearing set for Friday, January 26, 2018 at 10:00 a.m. is reset to 2:00 p.m. that day. Please note this is a time change only. Signed by Magistrate Judge David D. Noce on 01/8/2018. (SMB) (Entered: 01/08/2018)
154 MEMORANDUM in Opposition re 144 MOTION for Attorney Fees (Supplemental Memorandum) filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Second Declaration of Michelle Bennett, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Bennett, Michelle) (Entered: 01/08/2018)
155 MOTION for Ruling on Motion for Permanent Injunction by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 01/22/2018)
156 REPLY to Response to Motion re 144 MOTION for Attorney Fees filed by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 01/25/2018)
157 ORDER VACATING HEARING: IT IS HEREBY ORDERED that the unopposed motion of plaintiffs for the Court to rule on pending matters without a hearing (Doc. 155 ) is sustained. The hearing previously set for Friday, January 26, 2018, is vacated. The pending issues will be ruled without a hearing. Signed by Magistrate Judge David D. Noce on 1/26/18. (JAB) (Entered: 01/26/2018)
158 NOTICE of Supplemental Authority re 138 MOTION for Permanent Injunction and Declaratory Relief by Plaintiffs CNS International Ministries, Inc., Heartland Christian College . (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 02/26/2018)
159 NOTICE of Supplemental Authority re 138 MOTION for Permanent Injunction and Declaratory Relief by Plaintiffs CNS International Ministries, Inc., Heartland Christian College . (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 03/12/2018)
160 MEMORANDUM: IT IS HEREBY ORDERED that the motion of plaintiffs for permanent injunctive and declaratory relief (Doc. 138 ) is GRANTED. An appropriate Judgment Order is filed herewith. Signed by Magistrate Judge David D. Noce on 3/28/18. (JAB) (Entered: 03/28/2018)
161 JUDGMENT ORDER FOR DECLARATORY RELIEF AND PERMANENT INJUNCTION: In accordance with the Memorandum filed herewith, IT IS HEREBY DECLARED as follows: The contraceptive mandate in the Affordable Care Act and implementing regulations and the accommodations as augmented on August 27, 2014, violate the rights of plaintiffs CNS International Ministries (CNS) and Heartland Christian College (HCC) pursuant to the Religious Freedom Restoration Act. Plaintiffs CNS and HCC are not subject to any fines, already accrued or to be imposed in the future for their non−compliance with such laws. IT IS FURTHER ORDERED and ADJUDGED as follows: (SEE JUDGMENT FOR DETAILS). Signed by Magistrate Judge David D. Noce on 3/28/18. (JAB) (Entered: 03/28/2018)
162 Supplemental MOTION for Attorney Fees by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 03/30/2018)
163 MEMORANDUM in Support of Motion re 162 Supplemental MOTION for Attorney Fees filed by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Belz, Timothy) (Entered: 03/30/2018)
164 MEMORANDUM in Opposition re 162 Supplemental MOTION for Attorney Fees filed by Defendants Jacob J. Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor,

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United States Department of the Treasury. (Attachments: # 1 Exhibit A − CBA Opening Brief, # 2 Exhibit B − CBA Reply)(Bennett, Michelle) (Entered: 04/06/2018)
165 REPLY to Response to Motion re 162 Supplemental MOTION for Attorney Fees filed by Plaintiffs CNS International Ministries, Inc., Heartland Christian College. (Belz, Timothy) (Entered: 04/10/2018)
166 MEMORANDUM AND ORDER REGARDING MOTIONS FOR ATTORNEY FEES: IT IS HEREBY ORDERED that the motions of plaintiffs for attorney fees and expenses (Docs. 144 , 162 ) are GRANTED IN PART and DENIED IN PART. The Court finding that the following hourly rates and hours of effort are reasonable compensation for plaintiffs legal representation, rounded to the nearest hour, IT IS FURTHER ORDERED that defendants must pay plaintiffs CNS and HCC the following amounts as reasonable attorney fees: (SEE ORDER FOR DETAILS) Signed by Magistrate Judge David D. Noce on 8/9/18. (JAB) (Entered: 08/09/2018)

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 14-1507 ___________________________
Sharpe Holdings, Inc. a Missouri Corporation; Rita Joanne Wilson, a Missouri resident; Judi Diane Schaefer, a Missouri resident; Charles N. Sharpe, a Missouri
resident; CNS Corporation, a Missouri Corporation; Ozark National Life Insurance Company, a Missouri Corporation; N.I.S. Financial Services, Inc. a Missouri Corporation; CNS International Ministries, A Missouri Non-Profit Corporation; Heartland Christian College, A Missouri Non-Profit Corporation
lllllllllllllllllllll Plaintiffs - Appellees
v.
United States Department of Health and Human Services; Sylvia Mathews Burwell, in her official capacity as the Secretary of the United States Department of Health and Human Services; United States Department of the Treasury; United States Department of Labor; Jacob J. Lew, in his official capacity as the Secretary of the United States Department of the Treasury; Thomas E. Perez, in his official
capacity as the Secretary of the United States Department of Labor1
lllllllllllllllllllll Defendants - Appellants
------------------------------
American Civil Liberties Union; American Civil Liberties Union of Missouri; Julian Bond; National Women’s Law Center; American Association of University Women; American Federation of State, County and Municipal Employees; Black
Women’s Health Imperative; Feminist Majority Foundation; Ibis Reproductive Health; Legal Momentum; MergerWatch; NARAL Pro-Choice America; NARAL Pro-Choice Minnesota; NARAL Pro-Choice Missouri; NARAL Pro-Choice South
1Secretary of Health and Human Services Sylvia Mathews Burwell is substituted for her predecessor, Kathleen Sebelius. See Fed. R. App. P. 43(c)(2).

Dakota; National Organization for Women Foundation; National Partnership for Women and Families; Planned Parenthood of the Heartland; Planned Parenthood of Kansas & Mid-Missouri; Planned Parenthood Minnesota, North Dakota, South
Dakota; Planned Parenthood of the St. Louis Region and Southwest Missouri; Population Connection; Raising Women’s Voices for the Health Care We Need; Service Employees’ International Union; National Health Law Program; American
Public Health Association; National Family Planning & Reproductive Health Association; National Women’s Health Network; National Latina Institute for Reproductive Health; National Asian Pacific American Women’s Forum; Asian Americans Advancing Justice; Asian Americans Advancing Justice - Los Angeles;
Asian & Pacific Islander American Health Forum; Forward Together; Ipas; Sexuality Information and Education Council of the U.S.; HIV Law Project; 30 for
30 Campaign; California Women’s Law Center
lllllllllllllllllllllAmici on Behalf of Appellant(s)
Liberty, Life, and Law Foundation; Association of Gospel Rescue Missions; Prison Fellowship Ministries; Association of Christian Schools International; National Association of Evangelicals; Ethics and Religious Liberty Commission of the Southern Baptist Convention; American Bible Society; The Lutheran Church-Missouri Synod; Institutional Religious Freedom Alliance; Christian
Legal Society
lllllllllllllllllllllAmici on Behalf of Appellee(s) ____________
Appeal from United States District Court for the Eastern District of Missouri - Hannibal
____________
Submitted: December 10, 2014 Filed: September 17, 2015 ____________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges. ____________
-2-

WOLLMAN, Circuit Judge.
Contending that the district court2 abused its discretion, the Departments of Health and Human Services (HHS), Labor (DOL), and Treasury, as well as their respective Secretaries, (collectively, the government) appeal from the entry of a preliminary injunction enjoining the government from enforcing certain provisions of the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13, against CNS International Ministries, Inc. (CNS) and Heartland Christian College (HCC), each of which is a nonprofit religious organization that offers healthcare coverage to employees through a self-insured plan.3 We affirm the order granting the preliminary injunction.
CNS, a Missouri nonprofit corporation with more than fifty employees, provides full-time residential services to men, women, and children with behavioral problems or who suffer from alcohol or drug dependencies, and it operates a school that serves the children of individuals in its recovery program, as well as its employees’ children. HCC, also a Missouri nonprofit corporation but with fewer than fifty employees, provides post-secondary higher education to employees and residents of CNS and their dependents. Christian belief and practice are integral to the identities of both CNS and HCC, and they strive “to promote certain moral and ethical standards in their employees, including . . . a belief in the sanctity of life which precludes abortion on demand.” As part of their religious mission to promote
2The Honorable David D. Noce, United States Magistrate Judge for the Eastern District of Missouri (hereinafter the district court), to whom the case was assigned by consent of the parties under 28 U.S.C. § 636(c).
3In separate orders that are not at issue in this appeal, the district court granted (1) a temporary restraining order for Appellants Sharpe Holdings, Inc.; Charles N. Sharpe; Rita Joanne Wilson; and Judi Diane Schaefer and (2) a preliminary injunction for Appellants CNS Corporation; Ozark National Life Insurance Company; and N.I.S. Financial Services, Inc.
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the well-being and health of their employees, both CNS and HCC offer healthcare coverage to employees through self-insured group health plans, although HCC, with fewer than fifty employees, is not required by the ACA to offer healthcare coverage.
Under authority granted by the ACA, HHS promulgated regulations requiring “group health plan[s]” and “health insurance issuer[s] offering group or individual health insurance coverage” to cover, “[w]ith respect to women, . . . preventive care and screenings provided for in binding comprehensive health plan coverage guidelines supported by the Health Resources and Services Administration.” 45 C.F.R. § 147.130(a)(1)(iv). At the recommendation of the Institute of Medicine, HHS adopted guidelines providing that nonexempt employers generally must provide “coverage, without cost sharing, for ‘[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity’” (the contraceptive mandate). 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see 29 C.F.R. § 2590.715-2713(a).4 Contraceptive methods approved by the FDA include intrauterine devices (IUDs), levonorgestrel (Plan B), and ulipristal acetate (ella), each of which “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2762-63 (2014). In general, any employer that offers employees a group health plan must comply with the contraceptive mandate or face penalties of $100 per day per affected “individual.” 26 U.S.C. § 4980D(b). An employer with more than fifty employees that fails to provide employees with a group health plan is generally subject to penalties of $2,000 per year per full-time employee. Id. § 4980H(a), (c).
The ACA provides an exemption from the contraceptive mandate for “grandfathered” health plans, i.e., those in existence at the time of the ACA’s
4Treasury and HHS regulations were similarly revised, but we cite only to DOL regulations unless otherwise indicated.
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adoption. 42 U.S.C. § 18011; 29 C.F.R. § 2590.715-1251. The ACA also provides an exemption from the contraceptive mandate for group health plans sponsored by religious employers. 45 C.F.R. § 147.131(a) (HHS). The term “religious employer” is defined narrowly by reference to the Internal Revenue Code to include “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” Id. (citing the Internal Revenue Code, 26 U.S.C. § 6033(a)(3)(A)(i), (iii)). Under these exemptions, employers with grandfathered plans and religious employers may continue to offer their employees healthcare coverage that does not include contraceptives.
The regulations also provide an “accommodation” for certain religious organizations that have religious objections to the contraceptive mandate but do not qualify for the religious-employer exemption.5 78 Fed. Reg. 39,870, 39,871 (July 2, 2013); see also 29 C.F.R. § 2590.715-2713A. The accommodation is intended to protect religious organizations “from having to contract, arrange, pay, or refer for” contraceptive coverage. 78 Fed. Reg. at 39,872. It is available for a religious organization that (1) has religious objections to providing healthcare coverage for some or all contraceptive services, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) complies with a selfcertification process. 29 C.F.R. § 2590.715-2713A(a). A self-insured6 religious
5After the Supreme Court’s decision in Hobby Lobby, the government revised the relevant regulations effective September 14, 2015, to extend this accommodation to certain closely held for-profit entities that have a religious objection to providing coverage for some or all of the FDA-approved contraceptive methods. See 80 Fed. Reg. 41,318 (July 14, 2015).
6A self-insured employer bears the financial risk of paying its employees’ health-insurance claims rather than contracting with a separate insurance company to provide the coverage and bear the financial risk. A self-insured employer often hires a third-party administrator to manage administrative functions like processing claims. See, e.g., 1A Steven Plitt, et al., Couch on Insurance § 10:1 n.1 (3d ed. 2013).
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organization, after “contract[ing] with one or more third party administrators,” 29 C.F.R. § 2590.715-2713A(b)(1)(i), complies with the self-certification process in one of two ways.
The organization may self-certify by completing and submitting directly to its third-party administrator (TPA) an EBSA Form 700–Certification (Form 700), certifying that it is a religious nonprofit entity that has religious objections to providing coverage for some or all of the contraceptives required by the mandate. 29 C.F.R. § 2590.715-2713A(a)-(b). The organization may also self-certify by providing notice to HHS stating the organization’s name; the basis on which it qualifies for an accommodation; its religious objections to providing coverage for some or all contraceptives, including the specific contraceptives to which it objects; its insurance plan name and type; and its TPA’s name and contact information (HHS Notice).7 See 79 Fed. Reg. 51,092, 51,094-95 (Aug. 27, 2014); 80 Fed. Reg. 41,318, 41,323 (July 14, 2015); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). The religious organization must
Because CNS and HCC offer self-insured plans, we focus our discussion on regulations applicable to those plans.
7This self-certification method was added to the regulations after the Supreme Court’s order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). Wheaton College, a religious organization, challenged the accommodation process, arguing that completing Form 700 and forwarding the Form to its insurance issuer made it complicit in the provision of contraceptive coverage in violation of its religious beliefs. The Supreme Court granted injunctive relief, enjoining the government from enforcing the contraceptive mandate while the college’s challenge to the accommodation process was pending, provided that the college inform HHS “in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. at 2807. The college was not required to self-certify using Form 700. Id. The Court also stated, “Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the” ACA to Wheaton College’s employees and students. Id.
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also update its HHS Notice “[i]f there is a change in any of the information required to be included.” 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B). According to the government, this information is “the minimum information necessary . . . to determine which entities are covered by the accommodation, to administer the accommodation, and to implement” government policy. 79 Fed. Reg. 51,092, 51,095 (Aug. 27, 2014); 80 Fed. Reg. 41,318, 41,323 (July 14, 2015). After HHS receives the Notice, it provides the information to DOL, which sends a separate notification to the religious organization’s TPA. See id.
Once a TPA receives Form 700 from the religious organization or the separate notification from DOL “and agrees to enter into or remain in a contractual relationship with” the religious organization, the TPA must “provide or arrange payments for contraceptive services” for beneficiaries of the organization’s group health plan either by providing those payments itself or by arranging for another party to do so. 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is also “designat[ed] . . . plan administrator and claims administrator for contraceptive benefits” for the religious organization. 78 Fed. Reg. at 39,879. If a self-insured religious organization uses Form 700, the form becomes “an instrument under which the plan is operated [and is] treated as a designation of the [TPA] as the plan administrator under section 3(16) of ERISA[, 29 U.S.C. § 1002(33),] for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3-16(b). Form 700 authorizes the TPA to “provide or arrange payments for contraceptive services” and requires the TPA to provide separate notice regarding those services to participants and beneficiaries enrolled in the religious organization’s group health plan. 29 C.F.R. § 2590.715-2713A(b)(2). If the self-insured religious organization instead self-certifies by HHS Notice, DOL’s ensuing notification to the TPA also operates to “designate” the TPA “as plan administrator” under ERISA for contraceptive benefits. 79 Fed. Reg. at 51,095; see also 29 C.F.R. § 2510.3-16(b). Once the TPA receives Form 700 or notification from DOL, it also becomes eligible to be reimbursed for the full cost of contraceptive coverage, plus an additional allowance of “no less than 10 percent.” 45 C.F.R.
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§ 156.50 (HHS); 79 Fed. Reg. 13,744, 13,809 (Mar. 11, 2014) (noting that HHS specifies the amount of the yearly allowance and setting that amount at fifteen percent for 2015). The TPA must provide or arrange for separate payments for contraceptive coverage for a religious organization’s plan beneficiaries “so long as [the beneficiaries] are enrolled in [the organization’s] group health plan.” 29 C.F.R. § 2590.715-2713A(d); see 45 C.F.R. § 147.131(c)(2)(i)(B) (HHS).8
CNS and HCC, in accordance with their sincerely held religious beliefs, oppose the use, funding, provision, or support of abortion on demand, and they believe that certain contraceptives required under the contraceptive mandate—Plan B, ella, and copper IUDs—are functionally equivalent to abortion on demand. As have a number of other religious organizations that do not qualify for the religiousemployer exemption from the contraceptive mandate, CNS and HCC brought suit against the government, arguing that both the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4, and the Free Exercise Clause of the First Amendment to the
8It is not clear whether the ACA’s implementing regulations impose a separate legal obligation on a TPA to provide contraceptive coverage to a religious organization’s employees and plan beneficiaries or whether that obligation arises only after the TPA receives a copy of the organization’s Form 700 or DOL notification and is thereby designated as a plan administrator for purposes of ERISA. See Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368, slip op. at 12 n.3 (D.C. Cir. May 20, 2015) (Brown, J., dissenting from denial of rehearing en banc); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151, 1208 (10th Cir. 2015) (Baldock, J., dissenting in part) (discussing effect of accommodation regulations in context of self-insured nonprofit religious organizations), petition for cert. filed, 84 U.S.L.W. 3056 (U.S. July 23, 2015) (No. 15-105); see also Wheaton College v. Burwell, 134 S. Ct. 2806, 2814 n.6 (2014) (Sotomayor, J., dissenting) (explaining that a TPA does not have an independent obligation to provide contraceptive coverage but “bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification”).
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U.S. Constitution. CNS and HCC contend that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage through the Form 700/HHS Notice accommodation process. They accordingly moved for a temporary restraining order and a preliminary injunction to enjoin enforcement of the contraceptive mandate and the accommodation regulations against them. The district court granted injunctive relief,9 relying on an earlier order enjoining enforcement of “the ACA Mandate regulations regarding abortifacient devices and related counseling” against the for-profit plaintiffs, D. Ct. Order of Dec. 31, 2012, at 9, and reasoning that “the arguments for those plaintiffs are substantially similar to the arguments” raised by the nonprofit religious organizations, D. Ct. Order of Dec. 30, 2013, at 5.
After the notice of appeal was filed, the Supreme Court issued its order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and the government revised the accommodation regulations to permit religious organizations to self-certify using HHS Notice, as well as Form 700. We granted the parties’ joint motion for permission to file supplemental briefs regarding the impact of the revised regulations on the issues presented in this appeal. CNS and HCC assert that the addition of HHS Notice as an alternative method to apply for accommodation does not alleviate the substantial burden imposed on their religious exercise, because it does “nothing more than coerce [them] into another avenue that violates their religion.” They argue that they “must still submit a document that they believe wrongfully facilitates the delivery of such coverage.”
9The district court did not specify whether its ruling was based on the RFRA or the Free Exercise claim. Because we conclude that CNS and HCC were entitled to relief based on their RFRA claim, we decline to address their Free Exercise claim.
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The government asserts—as it did with respect to Form 700—that HHS Notice does not substantially burden CNS and HCC’s exercise of religion, because the Notice does not facilitate the provision of contraceptive coverage by CNS and HCC’s TPAs, which have a separate and independent legal obligation under the ACA to provide contraceptive coverage to CNS and HCC’s employees. The government also argues that even if there were a substantial burden on the exercise of religion, it has employed the least restrictive means to accomplish its compelling interest in ensuring access to no-cost contraceptive coverage.
“A district court has broad discretion when ruling on [a] request[] for [a] preliminary injunction[], and we will reverse only for clearly erroneous factual determinations, an error of law, or an abuse of that discretion.” Med. Shoppe Int’l, Inc. v. S.B.S. Pill Dr., Inc., 336 F.3d 801, 803 (8th Cir. 2003) (quoting United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)). In determining whether to grant injunctive relief, a district court generally considers “(1) the threat of irreparable harm to the movant; (2) the balance between the potential harm and any harm that granting the injunction will cause to other parties to the litigation; (3) the probability that the movant will succeed on the merits; and (4) the public interest.” Id. (citations omitted); see also Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981)). Although “no single factor is determinative,” Dataphase, 640 F.2d at 113, the probability-of-success factor is the most significant, see Home Instead, Inc. v. Florance, 721 F.3d 494, 497 (8th Cir. 2013).
RFRA provides that a federal law may not “substantially burden a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
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42 U.S.C. § 2000bb-1.10 To state a claim under RFRA, a religious objector must show that the government substantially burdens a sincere religious exercise or belief. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006). The burden then shifts to the government to show that it has a “compelling interest” in applying “the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 429-30 (quoting 42 U.S.C. § 2000bb-1(b)). To satisfy the compelling-interest requirement, the government must do more than identify “broadly formulated interests justifying the general applicability of government mandates.” Id. at 431. The government also bears the burden of showing that “application of the burden to the person . . . is the least restrictive means of furthering” its compelling interest. Id. at 424. This burden-shifting approach applies even at the preliminary-injunction stage. Id. at 42930.
Under RFRA, the government substantially burdens the exercise of religion when it “conditions receipt of an important benefit upon conduct proscribed by a religious faith” or “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.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981). In other words, governmental action substantially burdens the exercise of religion when it coerces private individuals into violating their religious beliefs or penalizes them for those beliefs by denying them the “rights, benefits, and privileges enjoyed by other citizens.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).
10“RFRA expressly adopted 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).’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006).
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Here, the substantial burden imposed by the government on CNS and HCC’s exercise of religion is the imposition of significant monetary penalties should CNS and HCC adhere to their religious beliefs and refuse to comply with the contraceptive mandate or the accommodation regulations. This burden mirrors the substantial burden recognized by the Supreme Court in Hobby Lobby. CNS and HCC face the same consequences for noncompliance as did the plaintiffs in Hobby Lobby. 134 S. Ct. at 2759, 2775-76. Like the plaintiffs in Hobby Lobby, if CNS and HCC fail to comply with the challenged regulations, they will be subject to substantial monetary penalties. See id. at 2775-76 (citing 26 U.S.C. §§ 4980D, 4980H). When the government imposes a direct monetary penalty to coerce conduct that violates religious belief, “[t]here has never been a question” that the government “imposes a substantial burden on the exercise of religion.” Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368, slip op. at 6 n.3 (D.C. Cir. May 20, 2015) (Kavanaugh, J., dissenting from denial of rehearing en banc); see also Hobby Lobby, 134 S. Ct. at 2759 (imposing penalty for refusal to provide contraceptive coverage); Wisconsin v. Yoder, 406 U.S. 205, 208, 218 (1972) (imposing penalty for refusal to send children to high school); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (equating denial of benefits with imposition of penalty for Saturday worship); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 628 n.1 (7th Cir. 2015) (Flaum, J., dissenting) (“[O]nce we determine a religious belief is burdened, substantiality is measured by the severity of the penalties for non-compliance.”). As noted by the Court in Hobby Lobby, “[i]f these consequences do not amount to a substantial burden, it is hard to see what would.” 134 S. Ct. at 2759.
The “exercise of religion” protected under RFRA “involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in [or forborne] for religious reasons.” Hobby Lobby, 134 S. Ct. at 2770 (internal quotation and citation omitted). “RFRA was designed to provide very broad protection for religious liberty,” indeed, protection “far beyond what [the Supreme] Court has held is constitutionally required.” Id. at 2767. Significantly, RFRA
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protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” and “mandate[s] that this concept be construed in favor of a broad protection of religious exercise.” Id. at 2762 (internal quotation and citation omitted).
CNS and HCC submit that their religious beliefs prohibit them from providing healthcare coverage for certain contraceptives. They further assert that the government’s purported accommodation of their religious beliefs—the requirement that they submit Form 700 or HHS Notice so that their TPA can provide the objectionable contraceptives—is no accommodation at all because it, too, substantially burdens their exercise of religion. The government does not dispute the sincerity of CNS and HCC’s religious beliefs. When sincerity is not in dispute, we must consider the religious belief or exercise at issue and determine whether the government has placed substantial pressure, i.e., a substantial burden, on the religious objector to engage in conduct that violates the religious belief or to abstain from engaging in conduct that is required by that belief. See Hobby Lobby, 134 S. Ct. at 2775-76 (concluding that substantial burden arises when the government “demands” that a religious objector either “engage in conduct that seriously violates [his] religious beliefs” or suffer “substantial” “consequences”); Bowen v. Roy, 476 U.S. 693, 703 (1986) (suggesting that substantial burden may exist when the government compels a religious objector “by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that [he] find[s] objectionable for religious reasons”) (footnote omitted).
Our inquiry in this regard is necessarily constrained because “it is not within the judicial function” to determine whether a religious belief or practice comports with the tenets of a particular religion. Thomas, 450 U.S. at 716 (“Courts are not arbiters of scriptural interpretation.”). Instead, we must accept a religious objector’s description of his religious beliefs, regardless of whether we consider those beliefs “acceptable, logical, consistent, or comprehensible.” Id. at 714. In other words, a religious objector is entitled to “dr[a]w a line” regarding the conduct that his religion
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deems permissible, and once that line is drawn, “it is not for [a court] to say that the line . . . was . . . unreasonable.” Id. at 715. “[O]ur ‘narrow function . . . in this context,’” therefore, “‘is to determine’ whether the line drawn reflects ‘an honest conviction.’” Hobby Lobby, 134 S. Ct. at 2779 (quoting Thomas, 450 U.S. at 716).
CNS and HCC assert that their religious beliefs dictate that they abstain from conduct that furthers the government’s regulatory scheme to provide their employees and plan beneficiaries with coverage for objectionable contraceptives. They argue that the accommodation provided via the Form 700/HHS Notice procedure does not eliminate the substantial burden imposed on their religious beliefs because the accommodation process itself triggers the provision of objectionable coverage by their TPAs, making them complicit in conduct that violates their religious beliefs.
The government argues that the accommodation process cannot substantially burden CNS and HCC’s exercise of religion because, as a matter of law, it does not trigger, facilitate, or make CNS and HCC complicit in the provision of that coverage. This is true, the government says, because the ACA already imposes an obligation on TPAs to provide contraceptive coverage to their employees and plan beneficiaries.
The government’s argument has prevailed in several cases, in each of which the courts concluded as a matter of law that because the accommodation process does not trigger contraceptive coverage or make the religious objector complicit in the provision of that coverage, the accommodation process cannot impose a substantial burden on the exercise of religion.11 See Catholic Health Care Sys. v. Burwell, No.
11In reaching this conclusion, the courts have reasoned that “[i]t is federal law, rather than the religious organization’s signing and mailing [Form 700 or HHS Notice], that requires health-care insurers, along with [TPAs] of self-insured health plans, to cover contraceptive services. By refusing to fill out the form [the religious objector] would subject itself to penalties, but [its insurer and TPA] would still be required to provide [contraceptive] services to” employees and plan beneficiaries.
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14-427, 2015 WL 4665049, at *7 (2d Cir. Aug. 7, 2015) (noting that while the court will accept the sincerity of an objector’s religious beliefs, “it must assess the nature of a claimed burden on religious exercise to determine whether, as an objective legal matter, that burden is ‘substantial’ under RFRA”); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151, 1176 (10th Cir. 2015) (noting that “courts—not plaintiffs—must determine if a law or policy substantially burdens religious exercise”), petition for cert. filed, 84 U.S.L.W. 3056 (U.S. July 23, 2015) (No. 15-105); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 457-59 (5th Cir. 2015) (citing Bowen, 476 U.S. 693, and Lyng, 485 U.S. 439, as binding authority to “decid[e], as a question of law, whether the challenged law pressures the objector to modify his religious exercise), petition for cert. filed, 84 U.S.L.W. 3050 (U.S. July
Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614 (7th Cir. 2015); see also Catholic Health Care Sys. v. Burwell, No. 14-427, 2015 WL 4665049, at *12-13 (2d Cir. Aug. 7, 2015); Little Sisters of the Poor, 794 F.3d 1151, 1180-81; E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 458-62 (5th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3050 (U.S. July 8, 2015) (No. 15-35); Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 441-42 (3d Cir. 2015), petition for cert. filed sub nom. Zubik v. Burwell, 83 U.S.L.W. 3894 (U.S. May 29, 2015) (Nos. 14-1418, 14A1065), and petition for cert. filed, 84 U.S.L.W. 3096 (U.S. Aug. 11, 2015) (Nos. 15-191, 15A1); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 256 (D.C. Cir. 2014) petition for cert. filed, 83 U.S.L.W. 3918 (U.S. June 9, 2015) (No. 14-1453), and petition for cert. filed sub nom. Roman Catholic Archbishop of Wash. v. Burwell, 83 U.S.L.W. 3936 (U.S. June 19, 2015) (No. 14-1505); Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387-88 (6th Cir. 2014), cert. granted and judgment vacated, 135 S. Ct. 1914 (2015) (vacating and remanding for further consideration in light of Hobby Lobby), and reissued and reaffirmed on remand, Nos. 13-2723, 13-6640, 2015 WL 4979692 (6th Cir. Aug. 21, 2015); but see Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339, 1347 (11th Cir. 2014) (Pryor, J., specially concurring in order granting injunction pending appeal) (disagreeing with conclusion of Sixth and Seventh Circuits that “mandate imposes an independent obligation on” TPAs that “does not constitute a substantial burden”).
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8, 2015) (No. 15-35); Univ. of Notre Dame, 786 F.3d at 612 (“Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs.”); Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 435 (3d Cir. 2015) (“Without testing the appellees’ religious beliefs, we must nonetheless objectively assess whether the appellees’ compliance with the self-certification procedure does, in fact, trigger, facilitate, or make them complicit in the provision of contraceptive coverage.”), petition for cert. filed sub nom. Zubik v. Burwell, 83 U.S.L.W. 3894 (U.S. May 29, 2015) (Nos. 14-1418, 14A1065), and petition for cert. filed, 84 U.S.L.W. 3096 (U.S. Aug. 11, 2015) (Nos. 15-191, 15A1); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247 (D.C. Cir. 2014) (“Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise . . . . Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.”), petition for cert. filed, 83 U.S.L.W. 3918 (U.S. June 9, 2015) (No. 14-1453), and petition for cert. filed sub nom. Roman Catholic Archbishop of Wash. v. Burwell, 83 U.S.L.W. 3936 (U.S. June 19, 2015) (No. 14-1505); Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th Cir. 2014) (“[A]lthough we acknowledge that the appellants believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion.”), cert. granted and judgment vacated, 135 S. Ct. 1914 (2015) (vacating and remanding for further consideration in light of Hobby Lobby) and reissued and reaffirmed on remand, Nos. 13-2723, 13-6640, 2015 WL 4979692 (6th Cir. Aug. 21, 2015); but cf. Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014) (granting motion for injunction pending appeal against enforcement of contraceptive mandate in light of Hobby Lobby).
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As Hobby Lobby instructs, however, we must accept CNS and HCC’s assertion that self-certification under the accommodation process—using either Form 700 or HHS Notice—would violate their sincerely held religious beliefs. See Hobby Lobby, 134 S. Ct. at 2778; see also Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”). It is not our role to second-guess CNS and HCC’s honest assessment of a “difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” Hobby Lobby, 134 S. Ct. at 2778. As discussed above, Form 700 or HHS Notice will inform CNS and HCC’s TPA of its obligations to facilitate contraceptive coverage for CNS and HCC’s employees and plan beneficiaries and thus will play a part in providing the objectionable contraceptives. As in Hobby Lobby, CNS and HCC sincerely believe that the actions “demanded by the . . . regulations [are] connected to” illicit conduct “in a way that is sufficient to make it immoral for them to” take those actions. Id. CNS and HCC have drawn a line between actions they find “to be consistent with [their] religious beliefs” and actions they consider “morally objectionable.” Id. (citing Thomas, 450 U.S. at 715). And it is not for us “‘to say that the line [they] drew was an unreasonable one.’” Id. (quoting Thomas, 450 U.S. at 715); see also Priests for Life, slip op. at 12 (Kavanaugh, J., dissenting from denial of rehearing en banc) (“Judicially second-guessing the correctness or reasonableness (as opposed to the sincerity) of plaintiffs’ religious beliefs is exactly what the Supreme Court in Hobby Lobby told us not to do.”).
The government insists that because the ACA’s requirement that insurance issuers and group health plans include contraceptive coverage is wholly independent of CNS and HCC’s self-certification, their exercise of religion cannot be substantially burdened by the accommodation process. Even if the ACA requires that insurance issuers and group health plans include contraceptive coverage regardless of whether
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CNS and HCC self-certify, it also compels CNS and HCC to act in a manner that they sincerely believe would make them complicit in a grave moral wrong as the price of avoiding a ruinous financial penalty. If one equates the self-certification process with, say, that of obtaining a parade permit, then indeed the burden might well be considered light. But if one sincerely believes that completing Form 700 or HHS Notice will result in conscience-violating consequences, what some might consider an otherwise neutral act is a burden too heavy to bear. “The Supreme Court has emphasized that judges in RFRA cases may question only the sincerity of a plaintiff’s religious belief, not the correctness or reasonableness of that religious belief.” Priests for Life, slip op. at 8 (Kavanaugh, J., dissenting from denial of rehearing en banc); see also Eternal Word, 756 F.3d at 1347 (Pryor, J., specially concurring in order granting injunction pending appeal) (noting that religious objector’s “legal interpretation is beside the point” because “[w]hat matters is whether the [objector’s] participation in the contraception scheme—however minimal—violates its religious beliefs”); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, Nos. 13-1540, 14-6026, 14-6028, 2015 WL 5166807, at *2 (10th Cir. Sept. 3, 2015) (Hartz, J., dissenting from denial of rehearing en banc) (“I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs).”); Grace Schs. v. Burwell, Nos. 14-1430, 14-1431, 2015 WL 5167841, at *18 (7th Cir. Sept. 4, 2015) (Manion, J., dissenting). Religious beliefs need not be “acceptable, logical, consistent, or comprehensible to others” to deserve protection. Thomas, 450 U.S. at 714. The question here is not whether CNS and HCC have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.
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As it did in Hobby Lobby, the government argues here that CNS and HCC’s objection to the contraceptive mandate is really an objection to the conduct of third parties and that “the connection between what [CNS and HCC] must do . . . and the end that they find to be morally wrong . . . is simply too attenuated.” See Hobby Lobby, 134 S. Ct. at 2777. In Hobby Lobby, the third parties were the plaintiffs’ employees who would use the contraceptive benefits provided in the group health plan. Here, the third parties are TPAs, who will provide the objectionable coverage to CNS and HCC’s employees through the group health plan. The Supreme Court rejected this argument in Hobby Lobby, characterizing it as tantamount to “tell[ing] the [religious objectors] that their beliefs” about complicity in the provision of contraceptive coverage were “flawed,” “mistaken[,] or insubstantial”—moral and philosophical judgments that are not for the courts to make. Id. at 2778-79. Instead, when a religious objector deems the required conduct to cross the line of morally and religiously acceptable behavior, “it is not for us to say that their religious beliefs are mistaken or insubstantial.” Id. at 2779.
The government also argues that the self-certification process cannot substantially burden CNS and HCC’s exercise of religion because they were already instructing their TPA not to provide contraceptive coverage and thus had already declared their religious objection to such devices and products. What this argument fails to appreciate, however, is that self-certification under the accommodation process accomplishes what CNS and HCC’s prior instructions had specifically prevented: the provision of objectionable coverage through their group health plans. We need look no further than to the government’s own litigation behavior to gauge the importance of self-certification in the regulatory scheme. If TPAs had a wholly independent obligation to provide contraceptive coverage to religious objectors’ employees and plan beneficiaries, there would be no need to insist on CNS and HCC’s compliance with the accommodation process.
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In light of CNS and HCC’s sincerely held religious beliefs, we conclude that compelling their participation in the accommodation process by threat of severe monetary penalty is a substantial burden on their exercise of religion. See Hobby Lobby, 134 S. Ct. at 2778 (“Arrogating the authority to provide a binding national answer to this religious and philosophical question, [the government] in effect tell[s] the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.”). That they themselves do not have to arrange or pay for objectionable contraceptive coverage is not determinative of whether the required or forbidden act is or is not religiously offensive. See id. at 2778; Thomas, 450 U.S. at 715. We thus conclude that CNS and HCC have shown a substantial likelihood of success on the merits of their claim that the contraceptive mandate and accommodation process impose a substantial burden on their religious beliefs.
The question remains whether the government has established a compelling interest which it has used the least restrictive means to further. As noted above, under RFRA, the “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The government must “demonstrate that the compelling interest test is satisfied through application of the challenged law to . . . the particular claimant whose sincere exercise of religion is being substantially burdened.” Hobby Lobby, 134 S. Ct. at 2779 (quoting O Centro, 546 U.S. at 430-31). “[B]roadly formulated,” O Centro, 546 U.S. at 431, or “sweeping” governmental interests are inadequate, Yoder, 406 U.S. at 221. Rather, the government must show with “particularity how [even] admittedly strong interest[s] . . . would be adversely affected by granting an exemption” to a particular claimant. Id. at 236.
The government has asserted that its compelling interests in safeguarding public health and in ensuring that women have equal access to health care are furthered by the contraceptive mandate and the accommodation process. See 78 Fed.
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Reg. at 39,872. In Hobby Lobby, Justice Alito, writing for the Court, “assume[d] that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA.” 134 S. Ct. at 2780. As did the Supreme Court, we will entertain the same assumption and proceed to consider whether the government has shown that the contraceptive mandate and accommodation process are the least restrictive means of furthering the government’s compelling interests. See Hobby Lobby, 134 S. Ct. at 2780.
Under the “exceptionally demanding” least-restrictive-means test, Hobby Lobby, 134 S. Ct. at 2780, “if there are other, reasonable ways to achieve those [interests] with a lesser burden on . . . protected activity, [the government] may not choose the way of greater interference,” Dunn v. Blumstein, 405 U.S. 330, 343 (1972). Thus, a regulation may constitute the least restrictive means of furthering the government’s compelling interests if “no alternative forms of regulation” would accomplish those interests without infringing on a claimant’s religious-exercise rights. See Sherbert, 374 U.S. at 407.
We first reiterate that the government bears the burden of proof on this issue, which requires it to come forward with evidence that the contraceptive mandate and the accommodation process are the only feasible means to distribute cost-free contraceptives to women employed by religious organizations and that no alternative means would suffice to achieve its compelling interest. It must show “that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by” CNS and HCC. Hobby Lobby, 134 S. Ct. at 2780.
In Hobby Lobby, the Supreme Court determined that the accommodation process was “less restrictive than requiring employers to [directly] fund contraceptive methods that violate their religious beliefs.” Id. at 2782. But the Court also emphasized that it was specifically “not decid[ing] . . . whether an approach of this type complies with RFRA for purposes of all religious claims.” Id. It simply
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suggested that the accommodation process would be an acceptable alternative for organizations that did not assert a religious objection to the accommodation process itself. See id. at 2782 & n.40 (“The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (emphasis added)); id. at 2786 (Kennedy, J., concurring) (noting that “the plaintiffs have not criticized [the accommodation process] with a specific objection that has been considered in detail”).
Any suggestion that the Court in Hobby Lobby sanctioned the existing accommodation process for all purposes was dispelled only days later when the Court issued its order in Wheaton College and enjoined enforcement of the contraceptive mandate and the Form 700 accommodation regulations as long as Wheaton College directly notified HHS of its religious objection. 134 S. Ct. at 2807. The college was not required to self-certify by Form 700 to obtain an accommodation, and it was not required to provide the detailed information and updates demanded under the revised accommodation regulations establishing HHS Notice. See Wheaton College, 134 S. Ct. at 2807; see also Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014) (enjoining government from enforcing contraceptive mandate if written notice is provided to HHS stating that objectors “are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services”). And on June 29, 2015, the Supreme Court granted injunctive relief for the third time in another case involving a nonprofit religious organization. Zubik v. Burwell, 135 S. Ct. 2924 (2015) (order enjoining enforcement of the “challenged provisions” of the ACA pending final disposition of their petition for certiorari, provided that Wheaton College notice is submitted to HHS). Thus, in Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than either Form 700 or HHS Notice yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the
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government may further its interests. See Priests for Life, slip op. at 23 (Kavanaugh,

J., dissenting from denial of rehearing en banc) (“[R]egardless of whether we as a

lower court are

bound by the Supreme Court stay orders in Wheaton College

formally

and Little Sisters of the Poor, the notice identified by the Supreme Court in those two

cases is undoubtedly a less restrictive way for the Government to further its interest

than [Form 700 or HHS Notice].”). If the employer’s TPA is known to the

government, then there should be no cost to allowing the less onerous notice. Even

if the TPAs are not known, the government has not shown at this stage of the

proceedings that the inconvenience of identifying the TPAs likely would create an

administrative problem of sufficient magnitude to make the entire scheme

unworkable. See Sherbert, 374 U.S. at 408-09; Bowen, 476 U.S. at 731 (O’Connor,

J., concurring in part and dissenting in part).

In addition, notice similar to that sanctioned by the Supreme Court in Wheaton College and Zubik will not affect the ability of CNS and HCC’s employees and plan beneficiaries to obtain contraceptive coverage or “preclude the Government from relying on th[e] notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the” ACA. Wheaton College, 134 S. Ct. at 2807; Zubik, 135 S. Ct. at 2924 (same). The impact a religious accommodation may have on third parties is an important factor, because it “will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest.” Hobby Lobby, 134 S. Ct. at 2781 n.37; see also id. at 2760 (observing that “the effect of the . . . accommodation on the women employed by Hobby Lobby . . . would be precisely zero” because they “would still be entitled to all FDA-approved contraceptives without cost sharing”).

CNS and HCC also suggest other less restrictive means that could accomplish the government’s objectives and relieve the substantial burden on their exercise of religion. These include what the Court in Hobby Lobby characterized as “[t]he most straightforward way of doing this,” namely, “for the Government to assume the cost
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of providing the . . . contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” 134 S. Ct. at 2780. “[C]ost may be an important factor in the leastrestrictive means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.” Id. at 2781. CNS and HCC urge that the government could provide subsidies, reimbursements, tax credits, or tax deductions to employees, or that the government could pay for the distribution of contraceptives at community health centers, public clinics, and hospitals with income-based support. On the minimal record thus far developed, the government has not shown that these alternatives are infeasible. See Korte v. Sebelius, 735 F.3d 654, 686-87 (7th Cir. 2013); Univ. of Notre Dame, 786 F.3d at 630 (Flaum, J., dissenting); E. Tex. Baptist Univ. v. Sebelius, 988 F. Supp. 2d 743, 770 (S.D. Tex. 2013), rev’d on other grounds, 793 F.3d 449.
CNS and HCC also propose that the government could make contraceptives available to employees through its own healthcare exchanges. Under this approach, the government “could treat employees whose employers do not provide complete coverage for religious reasons the same as it does employees whose employers provide no coverage at all.” Priests for Life, slip op. at 17 (Brown, J., dissenting from denial of rehearing en banc). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” Holt v. Hobbs, 135 S. Ct. 853, 864 (2015). As the government must prove that its proposed mandate is the only feasible and effective means of achieving the asserted compelling interests, we cannot say on this limited record that the government has eliminated the use of healthcare exchanges as a viable option.
Applying the substantial-burden test set forth in Hobby Lobby, we conclude that CNS and HCC have established that they are likely to succeed on the merits of their RFRA challenge to the contraceptive mandate and the accommodation
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regulations—the most significant factor in determining whether a preliminary injunction should issue. See Home Instead, Inc., 721 F.3d at 497. They have also established that in the absence of an injunction they will be forced to violate their sincerely held religious beliefs by complying with either the contraceptive mandate or the accommodation process or to incur severe monetary penalties for refusing to comply. Keeping in mind the deference we owe the district court in reviewing a decision to grant injunctive relief, we conclude that it did not abuse its discretion in finding that CNS and HCC were substantially likely to succeed on the merits of their claim that the contraceptive mandate and the accommodation process substantially burden their exercise of religion in violation of RFRA and that the current accommodation process is not the least restrictive means of furthering the government’s interests. We therefore affirm the district court’s order granting injunctive relief.
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