IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

AMERICAN PULVERIZER CO., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

UNITED STATES DEPARTMENT OF,

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

Case No. 12-3459-CV-S-RED

ORDER

Before the Court is Plaintiffs’ Motion for a Preliminary Injunction (Doc. 16). On

December 19, 2012, the Court held a telephone conference regarding this motion. During this

telephone conference the Court addressed the Eighth Circuit’s recent decision in O’Brien v. U.S.

Dep’t of Health & Human Servs., 12-3357 (8th Cir. 2012). At this telephone conference,

Plaintiffs and Defendants conceded that the facts and plaintiff in O’Brien are nearly identical to

the case at hand. The Eighth Circuit’s November 28, 2012 Order in O’Brien states that it

concerns “Appellant’s motion for stay pending appeal” and that “the motion is granted.” The

parties agree that they consider the November 28, 2012 Order as an order granting “Appellants’

Motion for a Preliminary Injunction Pending Appeal”, which was the only motion before the

Eighth Circuit at the time of the November 28, 2012 opinion. For these reasons, the Court

construes the Eighth Circuit’s November 28, 2012 opinion as an order granting “Appellants’

Motion for a Preliminary Injunction Pending Appeal” and, further, that the Eighth Circuit’s

November 28, 2012 opinion has established precedent that on facts similar to those presented in

O’Brien, Plaintiffs are likely to succeed on the merits. The Court further notes that at the

December 19, 2012 telephone conference, the Court discussed the possibility to stay the above

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captioned case and maintain the status quo1, which this Court construes as Plaintiffs’ ability, on January 1, 2013, to make a choice regarding which insurance they provide to their employees without fear that they must comply with the Patient Protection and Affordable Care Act or face a fine. However, the Government indicated that they would not agree to a stay which would maintain the status quo, as defined by this Court, as the Government would view the stay as tantamount to a preliminary injunction. Accordingly, the Court sets forth the following ruling on Plaintiffs’ Motion for a Preliminary Injunction.
BACKGROUND I. The Mandate
Signed into law on March 23, 2010, the Patient Protection and Affor dable Care Act (“ACA”), Pub. L. No. 111-148, 124 St at. 119 (2010), instituted a variety of healthcare reform s. Among its many provisions, it requires employers with fifty or more full-time employees to offer health insurance. Most relevant to the case athand, the ACA requires group health plans to provide no-cost coverage for preventative care and screening for wom en. 42 U.S.C. 300gg-13(a)(4). However, unlike other provisions of the ACA, the preventative care coverage m andate does not apply to certain healthcare plans existing on March 23, 2010. 75 Fed. Reg. 34538-01, 34540 (June 17, 2010) and, further, exem pts certain religious employers from any requirem ent to cover
1The Court notes that Defendants and the ACLU, ACLU of Eastern Missouri and the ACLU Foundation of Kansas and Western Missouri (“the ACLU”), who have filed an amicus brief in this case, argue that the status quo is Plaintiffs’ continued coverage of contraceptive services currently covered by Plaintiffs’ health plan. However, as shown above, the Court disagrees with this definition of the status quo. The Court notes that the entirety of this opinion is consistent with this Court’s definition of the status quo. See i.e. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.”).
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contraceptive services. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011). Moreover, the Court notes that other exemptions to the ACA exist. See i.e., 26 U.S.C. 4980H(c)(2)(B) (setting forth exemptions regarding small employers). II. The Plaintiffs
Paul and Henry Griesediek (“the Griese dieks”) own and control Plaintiff businesses: American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding (“Griesedieck Companies”), businesses involved in wholesale scrap m etal recycling and the manufacturing of related machines. The Griesedieks are Evangelical Christians and believe that the use of contraceptive services is contrary to thei r religious beliefs. The Griesediek Com panies currently employ approximately 150 employees who are covered by three separate health insurance policies. Each plan’s renewal date is January 1, 2013. T he health insurance policies currently provided by the Griesediek Companies cover contraceptive services. However, the Griesedieks wish to change these health insurance policies so that the polices do not provide certain contraceptive services and are consistent with their religious beliefs.
The Griesediek Companies do not qualify as a religious em ployer under the terms of the ACA, cannot qualify for the government’s temporary safe harbor provision for non-profit entities, and, finally, because of changes made to the Griesediek Companies’ health insurance plans, do not fall under the “grandfathered” status of the ACA.Accordingly, on January 1, 2013, the Griesedieks are faced with the choice of providing their employees with health insurance policies that include the contraceptive services required by t he ACA or incurring fines for not com plying with the requirements of the ACA. Accordingly, Plaintiffsargue that the ACA violates their rights under the
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Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb et seq.2 STANDARD OF REVIEW
“The ‘issuance of a preliminary injunction depends upon a ‘flexible’ consideration of (1) the threat of irreparable harmto the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the ef fect on the public interest.’” Minn. Citizens Concerned for Life, Inc. v . Swanson, 692 F.3d 864, 870 (8 th Cir. 2012) (citing Planned Parenthood of Minn., N.D., S.D. v . Rounds, 530 F.3d 724, 733 (8th Cir. 2008) (quoting Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). W hen considering these elem ents, “no single factor is determinative. The likelihood that plaintif f ultimately will prevail is m eaningless in isolation.” Dataphase at 113. Moreover, when considering the
probability of success on the m erits element, the Court is not required at an ear ly stage to draw the f ine line between a ma thematical probability and a substantial possibility of success. This endeavor m ay, of course, be necessary in som e circumstances when the balance of equities may come to require a m ore careful evaluation of the m erits. But where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation. Id.
DECISION I. Threat of Irreparable Harm to Plaintiffs
Plaintiffs must “demonstrate that irreparable injury islikely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Here, Plaintiffs have demonstrated that, on January 1, 2013, they will be forced to eithe: rprovide their employees with health insurance
2The Court notes that Plaintiffs raise other claims in their complaint. However, Plaintiffs base their motion for preliminary injunction on their claim under RFRA.
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policies that include the contraceptive services required by the ACA, which is against their religious beliefs, or incur fines for not complying with the requirements of the ACA. Accordingly, the Court finds that Plaintiffs have adequately established that they will suf fer imminent irreparable harm absent injunctive relief. Accordingly, this factor favors the Court’s entry of injunctive relief. II. Any Injury the Injunction would Inflict on other Interested Parties
If this Court were to grant Plaintiffs’ Motion for Preliminary Injunction, Defendants would not be able to enforce its regulations under the ACA. As Defendants argue, the ACA regulations are regulations that Congress found to be in the publicinterest. This injury hardly compares to the injury that Plaintiffs will sustain if this Court does not enter Plaintif fs’ Motion for Prelim inary Injunction. Accordingly, the Court finds that thisfactor favors the Court’sentry of injunctive relief. III. Effect on the Public Interest
Defendants argue that it would be contrary tothe public interest to deny the 150 employees of the Griesedieck Companies the benefits of the ACA. However, this interest is undermined by the fact that the ACA contains num erous exemptions. Moreover, Defendants’ stated interests are outweighed by the public’s interest in the rights afforded by the RFRA. Accordingly, the Cour t finds that this factor favors the Court’s entry of injunctive relief. IV. Plaintiffs’ Probability of Success on the Merits
As set forth above, when the Court considers the “probability of success on t he merits” element and “the balance of other factors tips decidedly towards plaintiff a preliminary injunction may issue if m ovant has r aised questions so serious and difficult as to call for m ore deliberate investigation.” Dataphase at 113. As the balance of all otherafctors tips towards this Court’s entry of injunctive relief, the Court willnow conclude whether Plaintiffs have raised questions “so serious
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and difficult as to call for more deliberate investigation” and, if Plaintiffs have done so, this Court will enter injunctive relief.
Plaintiffs base their Motion for Preliminary Injunction on their RFRA claim. According to 42 U.S.C. 2000bb-1 the “Government shall not substantially burden a person’s exercise of religion even if the burden results f rom a rule of general applicability, except . . . if it demonstrates that application of the burden to the person – (1) is in furtherance ofa compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
First, the Court must determine whether the ACA substantially burdens Plaintiffs’ exercise of religion. Under RFRA, “a rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is both sincerely held by and rooted in the religious bel iefs of the party asserting the claim.” U.S. .v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal quotations omitted). Plaintiffs argue that the ACA imposes a substantial burden on the free exercise of their religion as, on January 1, 2013, Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or incur fines. A ccordingly, the Court determ ines that there is a substantial likelihood that Plaintiffs will able to prove, on the m erits, that the ACA substantially burdens Plaintiffs’ exercise of religion.
The Court notes that Defendants argue that Plaintiffs cannot show that the ACA substantially burdens any exercise of religion as the Griesedieck Companies are secular entities and, thus, cannot “exercise religion” under the RFRA. As stated in Newland v. Sebelius, 12-1123 (D.Co. July 27, 2012), which dealt with an issue similar to that presented before the Court, this “argument[] pose[s] difficult questions of first im pression. Can a corporation exercise religion? . . . Is it possible to ‘pierce the veil’ and disregard the corporate formin this context?” The Court further notes that there
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are many entities under which an individual can run abusiness, i.e. a corporation, partnership, LLC, closely-held subchapter-s corporation, or sole propiretorship. Does an individual’s choice to run his business as one of these entities strip that individual of his right to exercise his religious belief s? Accordingly, the Court finds that, at the least, Pl aintiffs have indicated that this que stion merits “deliberate investigation.”
The Court further notes that the ACLU argues that Plaintiffs have failed to show the ACA substantially burdens any exercise of religionas, though the Griesedieck Companies would provide the health insurance which provided the cont raceptive services, any causation between the Griesedieck Companies and the use of the provided contraceptive services would be broken by the individual’s own decision to use the contraceptive services. However, this argument is contrary to the Supreme Court’s decisions in Sherbert v. Verner, 374 U.S. 398 (1963) and Thomas v. Review Bd., 450 U.S. 707 (1981) , which both indicate that “[ w]hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas at 718.3 Accordingly, the Court finds that this argument does not conclusivelyillustrate that Plaintiffs have failed to show that the ACA substantially burdens Plaintiffs’ exercise of religion and Plaintiffs have, at the l east, indicated that this question merits “deliberate investigation.”
However, even if Plaintiffs are able to demonstrate a substantial burden on their free exercise
3In Sherbert, the Supreme Court held that South Carolina could not constitutionally apply eligibility provisions of an unemployment compensation statute so as to deny benefits to a plaintiff who had refused employment which would require her to work on a Saturday when working on a Saturday was against the plaintiff’s religious beliefs even though the South Carolina statute itself did not place any restriction on the plaintiffs’ freedom of religion. In Thomas, the Supreme Court held that Indiana’s denial of unemployment compensation benefits to a plaintiff who terminated his job because his religious beliefs forbade participation in the production of armaments violated the plaintiff’s rights to free exercise of religion.
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of religion, Defendants may justify the application of the ACA to Plaintiffs by illustrating that the ACA is the least restrictive means of furthering a compelling interest. See Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 430 (2006) (stating that the strict scrutiny test applies to the RFRA). The Supreme Court has defined a compelling state interest as “a high degree of necessity.” Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729, 2741 (2011). Defendants argue that its compelling interest is safeguarding the public health by regulating the health care and insurance markets and, moreover, removing the barriers to economic advancement and political and social integration that have historically been placed on certain groups, such as women. As set forth above, significant exemptions to the ACA exist. Accordingly, these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs. Therefore, the Court finds that Plaintiffs have at least indicated that the question as to whether the Government has set forth a compelling interest merits “deliberate investigation.” For these reasons, the Court concludes that Plaintiffs have raised questions concerningtheir likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation.
CONCLUSION The long and short of it is that the balance of equities tip strongly in favor of injunctive relief in this case and that Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation. Accordingly, for the above stated reasons and the precedent presented in the O’Brien case in which the facts are nearly identical to the facts of the case at hand, the Court GRANTS Plaintiffs’ Motion for a Preliminary Injunction. Defendants, their officers, agents, servants, successors in office, employees, attorneys, and those acting in concert or participation with them,
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and including any insurance carriers, or third party insurance plan administrators with whom

Plaintiffs may contract from group health benefits are ENJOINED from applying and enforcing

against Plaintiffs any statutes or regulations that require Plaintiffs to include in their employee

health benefit plan coverage for all FDA-approved emergency contraceptive methods, and

related patient education and counseling for women with reproductive capacity, including the

application of any penalties and fines, including those found in 26 U.S.C. §§ 4980D and 4980H,

and any determination that the requirements are applicable to Plaintiffs. Moreover, as

Defendants did not request a bond, did not offer any response to Plaintiffs’ request that there was

no reason to require a bond, and did not set forth any indication that they would sustain any costs

or damages if they were wrongfully enjoined or restrained, the Court finds that Plaintiffs need

not issue a security to the Court for this preliminary injunction. See i.e., In re President Casinos,

Inc., 360 B.R. 272 (2007) (“A court is not required to order a bond to protect a party from

economic damages that are speculative.”).

IT IS SO ORDERED.

DATED: December 20, 2012

/s/ Richard E. Dorr RICHARD E. DORR, JUDGE UNITED STATES DISTRICT COURT

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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

PAUL GRIESEDIECK, HENRY

)

GRIESEDIECK, SPRINGFIELD IRON

)

AND METAL LLC, AMERICAN

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PULVERIZER COMPANY,

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HUSTLER CONVEYOR COMPANY, and

)

CITY WELDING,

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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. _____________

COMPLAINT

Plaintiffs, Paul Griesedieck, Henry Griesedieck, Springfield Iron and Metal, LLC,

American Pulverizer Company, Hustler Conveyor Company, and City Welding, by and through

their attorneys, state the following claims against Defendants:

NATURE OF ACTION

1.

In this case, Plaintiffs seek judicial review of Defendants’ violations of constitutional

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and statutory provisions in connection with Defendants’ promulgation and implementation of

certain regulations adopted under the 2010 Patient Protection and Affordable Care Act

(“PPACA”), specifically those regulations mandating that employers include in employee health

benefit plans coverage of services that violate Plaintiff’s religious and moral values.

2.

Specifically, Plaintiffs ask the court for declaratory and injunctive relief from the

operation of the Final Rule confirmed and promulgated by Defendants on February 15, 2012,

mandating that group health plans include coverage, without cost sharing, for “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 on or after

August 1, 2012 (hereafter, “the Mandate” or “the Final Rule”) see 45 CFR § 147.130 (a)(1)(iv),

as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources

and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/

womensguidelines.

3.

Plaintiffs, Paul and Henry Griesedieck, are adherents of the Evangelical Christian

faith. As the individuals with the controlling interest in the named corporate entities, the

Griesediecks seek to conduct their business in a manner that does not violate their religious

principles.

4.

Plaintiffs have concluded that complying with the Mandate would require them to

violate their religious beliefs because it would require them to pay for certain “FDA-approved

contraceptive methods” that Plaintiffs believe to be the equivalent of early abortions. These

drugs include, inter alia, “Plan B,” “Ella” and other forms of so-called “emergency

contraception.”

5.

Plaintiffs’ Christian beliefs include the belief that human life is a sacred gift from

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God and that individuals are not permitted to cause, or pay for the direct, intentional, unjustified

termination of such life.

6.

Plaintiffs contend that, by requiring them to choose between conducting their

businesses in a manner consistent with their religion or paying ruinous fines and penalties, the

Mandate violates their rights under the First Amendment, the Religious Freedom Restoration

Act, and violates the Administrative Procedure Act.

JURISDICTION AND VENUE

7.

This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§

1331, 1343(a)(4), and 1346(a)(2) because it is a civil action against agencies and officials of the

United States based on claims arising under the Constitution, laws of the United States, and

regulations of executive departments and it seeks equitable or other relief under an Act of

Congress, and also pursuant to 28 U.S.C. § 1361 as this court may compel officers and agencies

of the United States to perform a duty owed Plaintiffs.

8.

This court has jurisdiction to render declaratory and injunctive relief pursuant to 5

U.S.C. § 702, 28 U.S.C. §§ 2201-2202, 42 U.S.C. § 2000bb-1, and Federal Rules of Civil

Procedure 57 and 65.

9.

Venue is appropriate in this district pursuant to 28 U.S.C. §1391(e)(1)(B) and (C)

because a substantial part of the events or omissions giving rise to the claim occurred in this

district and one of the plaintiffs resides or has its principal place of business in this district.

10.

This court has the authority to award Plaintiffs their costs and attorneys’ fees

pursuant to 28 U.S.C. § 2412 and 42 U.S.C. § 1988.

IDENTIFICATION OF PARTIES

11.

Plaintiffs, Paul Griesedieck and Henry Griesedieck are individual citizens of the State

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of Missouri and the United States.

12.

Plaintiffs, Paul and Henry Griesedieck, have controlling interest in the additional

named Plaintiffs: Springfield Iron and Metal, LLC, American Pulverizer Company, Hustler

Conveyor Company, and City Welding.

13.

Plaintiffs, Paul and Henry Griesedieck are responsible for setting all policies

governing the conduct of all phases of the business of each of the additional named Plaintiffs.

14.

Defendant United States Department of Health and Human Services (“HHS”), is an

agency of the United States, and is responsible for administration and enforcement of the

Mandate/Final Rule.

15.

Defendant Kathleen Sebelius is Secretary of HHS, and is named as a party in her

official capacity.

16.

Defendant United States Department of the Treasury is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

17.

Defendant Timothy F. Geithner is Secretary of the Treasury, and is named as a party

in his official capacity.

18.

Defendant United States Department of Labor (“DOL”) is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

19.

Defendant Hilda L. Solis is Secretary of DOL, and is named as a party in her official

capacity.

FACTUAL ALLEGATIONS

20.

Plaintiffs, Paul and Henry Griesedieck, own and control four companies that are

involved, generally, in the business of wholesale scrap metal recycling and manufacturing of

machines for said businesses. Springfield Iron and Metal is located in Springfield, Missouri;

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American Pulverizer and City Welding are located in St. Louis, Missouri; and Hustler Conveyor

is located in O’Fallon, Missouri.

21.

Plaintiffs’ companies currently have a total of around 175 employees. The employees

are covered by three separate health insurance policies, each of which is issued by CIGNA

Healthcare. The plans’ renewal dates range from December 18, 2012 to January 1, 2013.

22.

Plaintiffs wish, on or before said plan renewal dates, to renew their current plans or

obtain new employee health coverage that excludes coverage for drugs or services that function

in an abortifacient manner, i.e., those with a recognized post-fertilization mechanism of action,

including, but not limited to, Plan B, Ella, “the morning-after pill” and similarly acting drugs.

Plaintiffs consider such drugs to be the equivalent of early abortions.

23.

In the absence of the Mandate being challenged herein, Plaintiffs would be permitted,

under state law, to exclude such coverage on religious grounds. Mo. Rev. Stat. § 376.1199, 4(1).

Because, however, the drugs in question are considered “FDA-approved forms of contraception,”

under the terms of the Mandate Plaintiffs are required to pay for them in any employee health

care plan they provide.

24.

As evangelical Christians, Plaintiffs believe in the sanctity of human life from the

moment of conception. They believe it would be sinful to for them to pay for services that have

a significant risk of causing the death of embryonic human lives.

APPLICABLE PROVISIONS OF THE MANDATE

25.

Under the Mandate or Final Rule being challenged herein, employers who provide

group health insurance plans are required to include in such plans coverage for “all FDA-

approved contraceptive methods, sterilization, and education and counseling for same.”

26.

Plaintiffs constitute a “single employer” for purposes of PPACA as defined at 42

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U.S.C. § 18024(b)(4)(A), and are, thus, subject to the Mandate.

27.

Plaintiffs’ group health plans are due for renewal between December 18, 2012 and

January 1, 2013. Plaintiffs wish to renew coverage for their employees while, at the same time,

and pursuant to their religious beliefs, exclude coverage for those FDA-approved contraceptive

methods described above, i.e., those with a recognized post-fertilization mechanism of action.

Under the terms of the Mandate, Plaintiffs will not be permitted to obtain coverage that excludes

the aforementioned drugs and services. On the contrary, the Mandate will require that Plaintiffs

provide their employees with coverage of those services that Plaintiffs consider immoral on

religious grounds.

28.

Plaintiffs do not qualify for the “religious employer” exemption contained in the

Final Rule. See 45 CFR § 147.130 (a)(1)(A) and (B).

29.

Because Plaintiffs do not qualify for the “religious employer” exemption, they are

not permitted to take advantage of the “temporary safe-harbor” as set forth by Defendants at 77

Fed. Register 8725 (Feb. 15, 2012).

30.

Plaintiffs are thus subjected to the Mandate now and are confronted with choosing

between complying with its requirements in violation of their religious beliefs, or paying ruinous

fines that would have a crippling impact on their ability to survive economically.

31.

The Mandate coerces Plaintiffs into complying with its requirements or abandoning

integral components of Plaintiffs’ religious values and beliefs.

CAUSES OF ACTION

COUNT I (Violation of the Religious Freedom Restoration Act)

32.

Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 31 above and

incorporate those allegations herein by reference.

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33.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

34.

The Mandate by requiring Plaintiffs to pay for said coverage, imposes a substantial

burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between

conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

35.

The Mandate furthers no compelling governmental interest.

36.

The Mandate is not narrowly tailored to further any compelling interest.

37.

The Mandate is not the least restrictive means of furthering Defendants’ stated

interests.

38.

The Mandate and Defendants’ threatened enforcement of same violate rights secured

to Plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq.

39.

Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and

will continue to be harmed.

COUNT II (Violation of the First Amendment to the United States Constitution Free Exercise Clause)

40.

Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 31 above and

incorporate those allegations herein by reference.

41.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

42.

The Mandate, by requiring Plaintiffs to provide coverage imposes a substantial

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burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between

conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

43.

The Mandate furthers no compelling governmental interest.

44.

The Mandate is not narrowly tailored to furthering any compelling interest.

45.

The Mandate is not the least restrictive means of furthering Defendants’ stated

interests.

46.

The Mandate is neither neutral nor generally applicable.

47.

The Mandate and Defendants’ threatened enforcement of same violate Plaintiffs’

rights to free exercise of religion as guaranteed by the First Amendment to the United States

Constitution.

48.

Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and

will continue to be harmed.

COUNT III (Violation of the Federal Establishment Clause)

49.

Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 31 above and

incorporate those allegations herein by reference.

50.

The First Amendment’s Establishment Clause prohibits the establishment of any

religion and/or excessive government entanglement with religion.

51.

The provisions of the Mandate, including the “religious employer exemption,”

require the government to examine and evaluate the religious beliefs of Plaintiffs, require the

government to discriminate among religious beliefs and organizations, and require the

government to adopt particular theological viewpoints and discriminate against others.

52.

The Mandate/Final Rule thus violates the Establishment Clause of the First

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Amendment.

53.

Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and

will continue to be harmed.

COUNT IV (Violation of the First Amendment to the United States Constitution Free Speech
Clause)

54.

Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 31 above and

incorporate those allegations herein by reference.

55.

The First Amendment protects organizations as well as individuals against compelled

speech.

56.

Expenditures of money are a form of protected speech.

57.

Plaintiffs believe that the aforementioned services, activities, and practices covered

by the Mandate/Final Rule are contrary to their religious beliefs.

58.

The Mandate/Final Rule compels Plaintiffs to subsidize services, activities, and

practices Plaintiffs believe to be immoral.

59.

The Mandate/Final Rule compels Plaintiffs to arrange for, pay for, provide, facilitate,

or otherwise support coverage for education and counseling related to contraception,

sterilization, and abortion.

60.

Defendants’ actions thus violate Plaintiffs’ free speech rights as guaranteed by the

First Amendment to the United States Constitution.

61.

Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and

will continue to be harmed.

COUNT V (Violation of the Administrative Procedure Act)

62.

Plaintiffs repeat and re-allege the allegations in paragraphs 1 through 31 above and

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incorporate those allegations herein by reference.

63.

The PPACA expressly delegates to an agency within Defendant United States

Department of Health and Human Services, the Health Resources and Services Administration,

the authority to establish “preventive care” guidelines that a group health plan and health

insurance issuer must provide.

64.

Given this express delegation, Defendants were obliged to engage in formal notice

and comment rulemaking as prescribed by law before Defendants issued the guidelines that

group health plans and insurers must provide.

65.

Proposed regulations were required to be published in the Federal Register and

interested persons were required to be given a chance to take part in the rulemaking through the

submission of written data, views, or arguments.

66.

Defendants promulgated the “preventive care” guidelines without engaging in the

formal notice and comment rulemaking as prescribed by law. Defendants delegated the

responsibilities for issuing “preventive care” guidelines to a non-governmental entity, the

Institute of Medicine, which did not permit or provide for broad public comment otherwise

required by the Administrative Procedure Act.

67.

Defendants also failed to engage in the required notice and comment rulemaking

when Defendants issued the interim final rules and the final rule that incorporates the “preventive

care” guidelines.

68.

In addition, in its creation of the Mandate/Final Rule, the Government disregarded

the large body of medical evidence indicating that hormonal contraceptives can significantly

increase women’s risks of cancer, stroke, and other diseases.

69.

Moreover, the Mandate/Final Rule violates Section 1303(b)(1)(A) of the PPACA,

10 Case 6:12-cv-03459-RED Document 1 Filed 10/19/12 Page 10 of 13

which provides that “nothing in this title” . . . “shall be construed to require a qualified health

plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any

plan year.” 42 U.S.C.A. § 18023(b)(1)(A)(i) (codification of Section 1303 of the PPACA).

70.

The Mandate/Final Rule violates the Religious Freedom Restoration Act.

71.

The Mandate/Final Rules violates the First Amendment to the United States

Constitution.

72.

Defendants, in promulgating the Mandate/Final Rule, failed to consider the

constitutional and statutory implications of the Mandate on for-profit employers such as

Plaintiffs.

73.

The Mandate/Final Rules violates the First Amendment to the United States

Constitution.

74.

Accordingly, the Mandate/Final Rule is arbitrary and capricious, not in accordance

with law or required procedure, and is contrary to constitutional right, in violation of the

Administrative Procedure Act, 5 U.S.C. § 706(2).

75.

Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and

will continue to be harmed.

PRAYER FOR RELIEF

Plaintiffs repeat and re-allege all allegations made above and incorporate those allegations

herein by reference, and Plaintiffs request that this court grant them the following relief and enter

final judgment against Defendants and in favor of Plaintiffs:

A. Declare that the Mandate/Final Rule and Defendants’ enforcement of same

against Plaintiffs violates the Religious Freedom Restoration Act;

B. Declare that the Mandate/Final Rule and Defendants’ enforcement of same

11 Case 6:12-cv-03459-RED Document 1 Filed 10/19/12 Page 11 of 13

against Plaintiffs violates the Free Exercise Clause of the First Amendment to the United States Constitution;
C. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against Plaintiffs violates the Establishment Clause of the First Amendment to the United States Constitution;
D. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against Plaintiffs violates the Free Speech Clause of the First Amendment to the United States Constitution;
E. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against Plaintiffs violates the Administrative Procedure Act;
F. Issue a preliminary and permanent injunction prohibiting Defendants, their officers, agents, servants, employees, successors in office, attorneys, and those acting in active concert or participation with them, from enforcing the Mandate/Final Rule against Plaintiffs and others not before this court who have religious objections to providing health insurance coverage under the Mandate/Final Rule for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling”;
G. Award Plaintiffs their costs and attorney’s fees associated with this action; and H. Award Plaintiffs any further relief this court deems equitable and just.
Respectfully submitted, /s/ Todd Nielsen Todd Nielsen (MO Bar No. 29109) 920 Main Street Suite 1950 Kansas City, MO 64105 Tel: (816) 421-2050 Fax: (816) 421-2153 Email: toddanielsen@yahoo.com
12 Case 6:12-cv-03459-RED Document 1 Filed 10/19/12 Page 12 of 13

Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 Email: fmanion@aclj.org, gsurtees@aclj.org Edward L. White III (MI Bar No. P62485)* AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984 Fax: (734) 302-1758 Email: ewhite@aclj.org Attorneys for Plaintiffs *Motion for admission pro hac vice to be filed.
13 Case 6:12-cv-03459-RED Document 1 Filed 10/19/12 Page 13 of 13

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

NOTICE OF INCLUSION IN THE EARLY ASSESSMENT PROGRAM IN THE WESTERN DISTRICT OF MISSOURI

Style of Case: America Pulverizer Co., et al v U.S. Dept of Health and Human Services

Case Number:

12-3459-CV-S-JCE

This case has been selected for inclusion in the Early Assessment Program.

Your case has been assigned to an outside mediator.

After responsive pleadings are filed, t he parties have 14 days to select an outside neutral of their choice and file a certificate with the Clerk’s office stating the nam e, address and telephone number of the outside neutral selected, and the date, tim e and place of the first m eeting scheduled with the outside neutral. The certificat e must be filed within the 14 days stated, and must be signed by or on behalf of each party. Th is certificate should be filed electronically and the filers should use the event “Designation of Neutral” which is under the “Other Filings” category and the heading “ADR Documents”.

A clear understanding should be entered into between the parties and the out side neutral as to the payment of the costs of the outside neutral, and how the costs are to be shared between the parties. Unless a party has been granted leave to proceed in forma pauperis, the parties are to promptly pay for the costs of the services of the outside neutral.

If a certificate is not timely filed, the parties w ill be provided with a list of potential neutrals as provided in Section VIII.D.2 of the General Orde r, and the parties will have 14 days f rom the date on the list of the potential neutrals to:

a.

Agree to a neutral on the list and report th e selection of the agreed neutral to the

Administrator of the Early Assessm ent Program (Magistrate Judge Jam es C.

England) in writing. Failure to agree to a ne utral and report the same may result

in the appointm ent of a neutral from the list of qualified neutrals by t he

Administrator, Magistrate Judge James C. England.

It is anticipated that the cases assigned to an outside neutral will proceed with at least one mediation session; however, if agreeable to the parties, the case m ay be processed with early neutral evaluation or other alternative dispute resolution procedures.
Please read carefully the General Order describing the Early Assessment Program in more detail.
As a party to a lawsuit in this Court, you are entitled to pursue all claim s or defenses to claim s

Case 6:12-cv-03459-RED Document 2 Filed 10/19/12 Page 1 of 3

that you have asserted until a disposition of the c laims or defenses is m ade by the Court or a jury. However, m ost of the l awsuits filed in this and other courts are resolved by voluntary settlement of t he parties before trial. W ith a settlem ent, the expense and inconvenience of litigation can be reduced and the uncertainty of the outcome can be eliminated.
In many cases that are settled, the settlem ent does not take place as ea rly or econom ically as possible. The purpose of the Early Assessm ent Program is to provide alternative dispute resolution (ADR) services t o assist parties in arriving at a voluntary, early resolution of their dispute.
YOUR OBLIGATIONS IN THIS COURT ARE NOT AFFECTED BY YOUR INCLUSION IN THIS PROGRAM
Good faith participation in the Early Assessment Program and use of one of the alternative dispute resolution (ADR) processes is required, but you are not required to settle the case.
Inclusion in this program does not relieve you of any of the obligations or deadlines that you have in this lawsuit. IF YOU HAVE BEEN SERVED, YOU MUST FILE A TIMELY RESPONSE IN ORDER TO AVOID THE RISK OF A DEFAULT JUDGMENT.
The goals of the Assessment are to determine which ADR procedure is most likely to help the parties reach a settlement, and to promptly begin settlement negotiations, if appropriate. Ideally, the parties will mutually decide which ADR option to use. However, if the parties are unable to agree, the decision will be made by the Administrator or the person conducting the meeting.
It is important that you carefully review and objectively evaluate your case prior to the first meeting. You should come prepared to discuss and negotiate the settlement of your case.
PLEASE NOTE THAT PARTIES ARE REQUIRED TO ATTEND (IN PERSON) ALL MEETINGS UNLESS EXCUSED BY THE PERSON CONDUCTING THE MEETING.
The actions of the person conducting the meeting(s) have no binding effect on discovery, motion practice or other aspects of preparation for trial. Only the assigned judge can control these matters. However, all communications made in connection with the Early Assessment Program are confidential and cannot be used at trial, except as provided in the General Order and Federal Rule of Evidence 408.
Set out below are some of the major ADR options that are available through this program. This list does not preclude the development of some other procedures by the parties, in consultation with the Administrator or the person in charge of the meeting.
MEDIATION
Mediation is a process in which a neutral third party assists the parties in developing and exploring their underlying interests (in addition to their legal positions), promotes the development of options and assists the parties toward settling the case through negotiations.
Case 6:12-cv-03459-RED Document 2 Filed 10/19/12 Page 2 of 3

The mediator is a lawyer who possesses the unique skills required to facilitate the mediation process, including the ability to help the parties develop alternatives, analyze issues, question perceptions, use logic, conduct private caucuses, stimulate negotiations between opposing sides and keep order.
The mediation process does not normally contemplate presentations by witnesses. The mediator does not review or rule upon questions of fact or law, or render a final decision in the case.
EARLY NEUTRAL EVALUATION (ENE)
Early neutral evaluation is a process in which parties obtain from an experienced neutral (an Evaluator) a non-binding, reasoned evaluation of their case on its merits. After essential information and position statements are exchanged, the Evaluator convenes a session which typically lasts about two hours. At the meeting, each side briefly presents the factual and legal basis of its position. The Evaluator may ask questions and help the parties identify the parties’ underlying interests, the main issues in dispute, as well as areas of agreement. He or she may also help the parties explore options for settlement. If settlement does not occur, the Evaluator then offers his or her opinion as to the settlement value of the case, including the likelihood of liability and the likely range of damages. With the benefit of this assessment, the parties are again encouraged to discuss settlement, with or without the Evaluator’s assistance. They may also explore ways of narrowing the issues, exchanging information about the case or otherwise preparing efficiently for trial.
The Evaluator has no power to impose a settlement or to dictate any agreement regarding the pretrial management of the case.
OTHER ALTERNATIVE DISPUTE RESOLUTION METHODS
The Administrator, or the person conducting the meeting, and the parties may decide that a minitrial, or binding arbitration, or some other form of ADR may be the best way to resolve the case.
The purpose of this program is to help parties save time and money. It will succeed if lawyers and parties make a good faith effort to comply with the spirit of the program.
Magistrate Judge James C. England, Administrator Early Assessment Program U.S. District Court
222 John Q. Hammons Parkway Springfield, Missouri 65806 417/865-3761
Case 6:12-cv-03459-RED Document 2 Filed 10/19/12 Page 3 of 3

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

PAUL GRIESEDIECK, HENRY

)

GRIESEDIECK, et al.

)

)

Plaintiffs,

)

)

vs.

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES,

)

et al.

)

)

Defendants.

)

__________________________________________)

CASE NO. 12-cv-3459 RED

PLAINTIFFS’ SUGGESTIONS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 1 of 22

TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................... 2 THE REGULATIONS BEING CHALLENGED ............................................................ 4 I. PLAINTIFFS SATISFY THE STANDARD FOR PRELIMINARY
INJUNCTIVE RELIEF ............................................................................................... 6 II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR RFRA CLAIM............................................................................................... 6 A. Plaintiffs Are Likely To Succeed On The Merits Of Their RFRA Claim............... 7
1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion................ 7 2. RFRA Imposes Strict Scrutiny......................................................................... 9 3. The Defendants Cannot Demonstrate a Compelling Governmental
Interest ......................................................................................................... 10 4. The Mandate is not the Least Restrictive Means ............................................ 13 III. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION ................................................................................................. 14 IV. AN INJUNCTION WOULD CAUSE NO HARM TO DEFENDANTS.................. 14 V. THE PUBLIC INTEREST FAVORS A PRELIMINARY INJUNCTION......................................................................................................... 15 CONCLUSION ............................................................................................................ 15
i Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 2 of 22

TABLE OF AUTHORITIES
CASES
Page
Anderson v. Celebrezze, 460 U.S. 780 (1983)................................................................ 13
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)...........................................10, 12
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................9, 12
City of Boerne v. Flores, 521 U.S. 507 (1997)................................................................. 9
Citizens United v. FEC, 130 S. Ct. 876 (2010) ................................................................ 7
Consol. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530 (1980)................................................................................................... 10
Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981) ............................... 6
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)................................................................................................9, 10
Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okl. Nov. 19, 2012)............................................................................................ 2
In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007) ....................................................................................... 12
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ...................................................... 14
Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Nov. 1, 2012)........................................................................................2, 15
Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658 (1978)...................................... 7
Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012).............................................................................. 1, 11, 12, 13
O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 140097 (E.D. Mo. Sept. 28, 2012)..................................................................... 6
Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789 (E.D. Mo. 2011)............................................................................................................ 6
ii Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 3 of 22

Planned Parenthood of MN v. Rounds, 530 F.3d 724 (8th Cir. 2008) .............................. 6 Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295
(11th Cir. 2006) ........................................................................................................... 7 Sherbert v. Verner, 374 U.S. 398 (1963) ................................................................7, 8, 10 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)................................................. 7 Thomas v. Review Bd., 450 U.S. 707 (1981).................................................................... 8 Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163873
(D.C.D. Nov. 12, 2012)................................................................................................. 2 United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ........................................................... 7 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803
(2000) ........................................................................................................................ 14 United States v. Robel, 389 U.S. 258 (1967).................................................................. 14 Weir v. Nix, 114 F.3d 817 (8th Cir. 1997)........................................................................ 7 Wisconsin v. Yoder, 406 U.S. 205 (1972) .............................................................8, 10, 13
STATE CASES Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008) ..................................................... 7
FEDERAL STATUTES 26 U.S.C. § 4980D.......................................................................................................... 9 26 U.S.C. § 4980D(b)(1)................................................................................................. 5 26 U.S.C. § 4980H.......................................................................................................... 9 26 U.S.C. § 4980H(a)(c)(1)............................................................................................. 5 26 U.S.C. § 4980H(c)(2) ............................................................................................... 12 26 U.S.C. § 4980H(c)(2)(A)............................................................................................ 5
iii Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 4 of 22

29 U.S.C. § 1132(a) ........................................................................................................ 9 42 U.S.C. § 300gg-13(a)(4)............................................................................................. 4 42 U.S.C. § 18011 (2010) ............................................................................................... 5 42 U.S.C. § 2000bb......................................................................................................... 7 42 U.S.C. § 2000bb-1(a) ................................................................................................. 7 42 U.S.C. § 2000bb-1(b) ............................................................................................. 7, 9
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-1251T (2010) ................................................................................. 5 29 C.F.R. § 2590.715-1251 (2010).................................................................................. 5 45 C.F.R. § 147.130........................................................................................................ 4 45 C.F.R. § 147.130(a)(iv)(B) ......................................................................................... 5 45 C.F.R. § 147.140 (2010)............................................................................................. 5 75 Fed. Reg. 34538 (June 17, 2010) ................................................................................ 5 75 Fed. Reg. 41726 (July 19, 2010)............................................................................5, 11 76 Fed. Reg. 46621 (Aug. 3, 2011) ............................................................................. 4, 5 77 Fed. Reg. 8725 (Feb. 15, 2012) .............................................................................5, 11
MISCELLANEOUS Application of the New Health Reform Provisions of Part A of
Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf................................................. 11 G. Bernagiano & H. von Hertzen, Towards more effective emergency contraception? 375 The Lancet 527-28 (Feb. 13, 2010)........................................................................... 3 Keith L. Moore & T.V.N. Persaud, The Developing Human: Clinically Oriented Embryology 58 (6th ed. 1998) ......................................................................................... 3
iv Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 5 of 22

Staman & Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) ............................................... 5 Statistics about Business Size (including Small Business) from the U.S. Census Bureau, U.S. Census Bureau, http://www.census.gov/econ/smallbus.html................................................................... 11 A. Tarantal et al., Effects of Two Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca fascicularis), 54 Contraception 107-115 (1996)................................. 3
v Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 6 of 22

INTRODUCTION Plaintiffs, Paul Griesedieck and Henry Griesedieck, seek preliminary injunctive relief so they may run their businesses, Plaintiffs American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding (hereinafter the “Griesedieck Companies”), in a manner consistent with their religious values and beliefs. Absent such relief, by January 1, 2013 at the latest, Paul and Henry Griesedieck will face a stark and unavoidable choice: abandon their beliefs in order to stay in business, or abandon their businesses in order to stay true to their beliefs. That is a choice that the federal government, bound by the First Amendment and the Religious Freedom Restoration Act (“RFRA”), may not lawfully impose upon them. The choice the government imposes on Plaintiffs, through regulations requiring them to provide employee insurance coverage for services and counseling to which they are morally opposed (“the Mandate”), is a choice the government has decided not to impose on thousands of other employers who share the Griesediecks’ views, and tens of thousands more employers (of well over 100 million employees) who may or may not share their views. This massive underinclusiveness shows that the government’s purported interests are remarkably non-compelling, and has already led the first court to consider this issue to enjoin the same regulations challenged here. See Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012). There is immediacy to this matter that justifies a deviation from the ordinary time frame of litigation. The Griesediecks have already begun planning in order to have a new health care policy in place by the plan renewal date of January 1, 2013. Right now, solely because of the Mandate—which, as will be shown herein, violates Plaintiffs’ rights under RFRA—Plaintiffs are faced with a few unacceptable, and inescapable, choices. They could drop health coverage for their 150 employees and, in so doing, incur astronomical fines, hurt their business, and hurt their
1 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 7 of 22

employees. Plaintiffs could go out of business entirely, again hurting both themselves and their employees, not to mention the local economy. Or, they could do something that the government has no right to require of them: abandon their religious beliefs as part of the cost of doing business. This Court should act to protect Plaintiffs from this unlawful and unprecedented government coercion, at least until the matter can be fully adjudicated, by granting the requested Preliminary Injunction. Three courts have already granted preliminary injunctions to plaintiffs challenging the very same Mandate that Plaintiffs challenge here. See Tyndale House Publrs. v. Sebelius, 2012 U.S. Dist. LEXIS 163873 (D.D.C. Nov. 16, 2012); Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Nov. 1, 2012); Newland, 2012 U.S. Dist. LEXIS 104835.1/ Plaintiffs respectfully ask this Court to do the same.
FACTUAL BACKGROUND Plaintiffs and brothers Paul and Henry Griesedieck own and control the Griesedieck Companies, businesses involved in wholesale scrap metal recycling and the manufacturing of related machines. (Exs. A and B, ¶ 2.)2/ They are Evangelical Christians (Id. at 5.), and pursuant to their understanding of the Christian faith, they believe that actions intended to terminate an innocent human life are immoral. (Id. at ¶ 4.) They further believe that subsidizing or paying for any drugs or services that they believe might result in the termination of innocent human life is also immoral. (Id. at ¶ 7.) Paul and Henry Griesedieck seek to manage and operate the Griesedieck Companies in a way that reflects their Christian faith. (Id. at ¶ 4.) The Griesedieck Companies currently employ 150 employees. (Id. at ¶ 5.) These employees are covered by a health insurance plan paid for by the Griesedieck Companies. (Id.)
1/ But see, Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. Dist. LEXIS 164843 (W.D. Okl. Nov. 19, 2012) (denying motion for preliminary injunction against the Mandate).
2/ Exhibits A and B are the declarations of Paul and Henry Griesedieck, respectively. The declarations are substantially similar and citations to paragraph numbers refer to paragraph numbers of both exhibits.
2 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 8 of 22

As explained further below, Defendants’ Mandate requires group health plans, such as the plan
the Griesedieck Companies provide for their employees, to include coverage, without cost
sharing, for contraceptives (including abortion-inducing drugs), sterilization, and related patient
education and counseling. Pursuant to their religious beliefs, Paul and Henry Griesedieck do not
want to pay for, provide, or subsidize emergency contraception in any health plan for the
Griesedieck Companies. (Id. at ¶¶ 7, 13.) They have made it a policy of the Griesedieck
Companies not to provide coverage for emergency contraception3/ in employee health plans
based on these same religious beliefs. (Id. at ¶ 8.) The health plans covering employees of the
Griesedieck Companies are due to be renewed on January 1, 2013. (Id. at ¶ 5.) The Griesedieck
Companies are not exempt from the dictates of the Mandate. (Id. at ¶¶ 9-11.)
It was discovered earlier this year that the Griesedieck Companies’ current group health
plan includes coverage for emergency contraception.4/ (Id. at ¶ 6.) This is an error that the
Griesediecks wish to correct. Plaintiffs are in need of immediate relief from the Mandate to allow
time to obtain insurance coverage that complies with the Griesediecks’ religious beliefs and the
policy of the Griesedieck Companies by not causing them to arrange for, pay for, or otherwise
support employee health plan coverage for emergency contraception, or related education and
3/ Plaintiffs draw a distinction between ordinary contraceptives, i.e., those primarily intended to prevent ovulation, and so-called “emergency contraceptives” (“morning after pills”), i.e., those primarily intended to and likely to act post-fertilization. Plaintiffs do not object to paying for coverage of ordinary contraceptives but do object to covering emergency contraceptives because they often destroy already conceived embryos. Keith L. Moore & T.V.N. Persaud, The Developing Human: Clinically Oriented Embryology 58 (6th ed. 1998) (“The administration of relatively large doses of estrogens (‘morning after’ pills) for several days, beginning shortly after unprotected sexual intercourse, usually does not prevent fertilization, but often prevents implantation of the blastocyst.”).
4/ One drug that the FDA classifies as “contraceptive,” and that must be paid for by employers subject to the Mandate, is ulipristal (marketed as the emergency contraceptive “Ella”). Ulipristal (HRP 2000) acts in a similar way to RU-486, a formulation that is used for medically induced abortions. See A. Tarantal et al., Effects of Two Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca fascicularis), 54 Contraception 107-115 (1996), at 114 (“[S]tudies with mifepristone and HRP 2000 have shown both antiprogestins to have roughly comparable activity in terminating pregnancy when administered during the early stages of gestation.”); G. Bernagiano & H. von Hertzen, Towards more effective emergency contraception?, 375 The Lancet 527-28 (Feb. 13, 2010) (“Ulipristal has similar biological effects to mifepristone, the antiprogestin used in medical abortion.”).
3
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counseling. (Id. at ¶ 12.) If Plaintiffs fail to comply with the Mandate or drop employee group health coverage altogether, the companies will likely face substantial penalties.
In sum, the Mandate requires Plaintiffs to choose between (a) complying with the Mandate and violating their religious beliefs and (b) not complying with the Mandate and having to pay significant fines and penalties in order to conduct business consistent with their religious beliefs. Plaintiffs seek relief from this Court so that they will not be forced to make that choice.
THE REGULATIONS BEING CHALLENGED On March 23, 2010, the Affordable Care Act (hereafter “ACA”) became law. The ACA requires group health plans to provide no-cost coverage for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration (hereafter “HRSA”). 42 U.S.C. § 300gg-13(a)(4). The HRSA guidelines include, among other things, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” WOMEN’S PREVENTIVE SERVICES: REQUIRED HEALTH PLAN COVERAGE GUIDELINES, Health Res. & Servs. Admin., http://www.hrsa.gov/womensguidelines/ (last visited Nov. 15, 2012). FDA-approved contraceptive methods include emergency contraception (such as Plan B and Ella), diaphragms, oral contraceptive pills, and intrauterine devices.5/ On August 3, 2011, Defendants promulgated an interim final rule, requiring all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” to provide coverage for all FDA-approved contraceptive methods and sterilization procedures as well as patient education and counseling about those services. 76 Fed. Reg. 46621, 46622 (Aug. 3, 2011); 45 C.F.R. § 147.130 (2011). This interim rule, which, along with the
5/ FDA, BIRTH CONTROL GUIDE (Oct. 19, 2011), http://www.fda.gov/downloads/forconsumers/byaudience/ forwomen/freepublications/ucm282014.pdf.
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religious employer exemption described below, comprises the Mandate, was adopted as final, “without change,” on or about February 15, 2012. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
Not all employers are required to comply with the Mandate. Grandfathered health plans, that is, plans in existence on March 23, 2010, and that have not undergone any of a defined set of changes,6/ are exempt from compliance with the Mandate. See 75 Fed. Reg. 41726, 41731 (July 19, 2010).7/ Defendant HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41732. On the other hand, many provisions of the ACA do apply to grandfathered plans. 75 Fed. Reg. 34538, 34542 (June 17, 2010). Also exempt from the Mandate are non-profit “religious employers,” as defined at 45 C.F.R. § 147.130(a)(iv)(B).8/ In addition, employers with fewer than fifty full-time employees have no obligation to provide employee health insurance under the ACA or to comply with the Mandate. 26 U.S.C. § 4980H(c)(2)(A). Non-exempt employers that fail to provide an employee health insurance plan will face annual fines of roughly $2,000 per full-time employee, see 26 U.S.C. §§ 4980H(a), (c)(1), and those that fail to provide certain required coverage may be subject to an assessment of $100 a day per employee. See 26 U.S.C. § 4980D(b)(1); see also STAMAN & SHIMABUKURO, CONG. RESEARCH SERV., RL 7-5700, ENFORCEMENT OF THE PREVENTATIVE HEALTH CARE SERVICES REQUIREMENTS OF THE PATIENT PROTECTION & AFFORDABLE CARE ACT (2012) (assessment applies for violations of the ACA’s “preventive care” provision). In sum, the challenged regulations contain categorical exemptions that exclude literally tens of millions of Americans from “preventative services” coverage.
6/ See 26 C.F.R. § 54.9815-1251T (2010); 29 C.F.R. § 2590.715-1251 (2010); 45 C.F.R. § 147.140 (2010). 7/ See 42 U.S.C. § 18011 (2010); 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). 8/ 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012). A religious employer was defined as 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 non-profit organization under IRC §§ 6033(a)(1) and (a)(3)(A)(i) or (iii).
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PLAINTIFFS’ SUGGESTIONS IN SUPPORT OF THEIR MOTION I. PLAINTIFFS SATISFY THE STANDARD FOR PRELIMINARY INJUNCTIVE
RELIEF. This court may properly exercise its discretion and grant Plaintiffs injunctive relief under Fed. R. Civ. P. 65. In exercising that discretion, this court considers “(1) the threat of irreparable harm to the movant; (2) the state of 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, 114 (8th Cir. 1981) (en banc); accord Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789, 791 (E.D. Mo. 2011). “At base, the question 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 Sys., 640 F.2d at 113. “The equitable nature of the proceeding mandates that the court’s approach be flexible enough to encompass the particular circumstances of each case.” Id. “In balancing the equities no single factor is determinative,” id., but the movant must make a threshold showing of being likely to prevail on the merits. Planned Parenthood of MN v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR RFRA CLAIM. For purposes of their motion, Plaintiffs will rely on Count I (RFRA) of their complaint. (Doc. 1.) Plaintiffs preserve the other claims and issues in their complaint.9/
9/ The district court in O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist. LEXIS 140097 (E.D. Mo. Sept. 28, 2012), dismissed claims similar to those raised by Plaintiffs here. The O’Brien decision, which is not binding on this Court, was wrongly decided and is on appeal. Case No. 12-3357 (8th Cir.).
6 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 12 of 22

A. Plaintiffs Are Likely To Succeed On Their RFRA Claim.
Under RFRA, the “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1(a).
The only time the federal government may substantially burden a person’s exercise of religion is
if “it demonstrates that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b) (emphasis added).
1. The Mandate Substantially Burdens Plaintiffs’ Exercise Of Religion.
To trigger the protections afforded by RFRA, Plaintiffs must first show that a federal
governmental policy or action substantially burdens their sincerely held religious beliefs. United
States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012) (citing Weir v. Nix, 114 F.3d 817, 820 (8th Cir.
1997)). Under RFRA, “a rule imposes a substantial burden on the free exercise of religion if it
prohibits a practice that is both sincerely held by and rooted in [the] religious belief[s] of the party asserting the claim.” Id. (citation and internal quotation marks omitted).10/
Several Supreme Court cases illustrate what a substantial burden involves in the freedom
of religion context. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that a state’s
denial of unemployment benefits to a Seventh-Day Adventist employee, whose religious beliefs
prohibited her from working on Sunday, substantially burdened her exercise of religion. The
10/ The constitutional and statutory rights at issue in this case are enjoyed not only by Paul and Henry Griesedieck, but also by the Griesedieck Companies. Corporations are legal persons that enjoy First Amendment rights. Citizens United v. FEC, 130 S. Ct. 876, 899 (2010). The First Amendment rights enjoyed by corporations include the right to the free exercise of religion. E.g., Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009); Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295 (11th Cir. 2006); Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008) (illustrating that a corporate pharmacy had standing to bring, among other claims, a federal free exercise claim); see also Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 687 (1978) (“[B]y 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.”); 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”).
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regulation “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Thomas v. Review Board, 450 U.S. 707 (1981), the Court held that a state’s denial of unemployment compensation benefits to a Jehovah’s Witness employee, whose religious beliefs prohibited him from participating in the production of armaments, substantially burdened his religious beliefs. “[T]he employee was put to a choice between fidelity to religious belief or cessation of work.” Id. at 717. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that a state compulsory school-attendance law substantially burdened the religious exercise of Amish parents who refused to send their children to high school. The Court found the burden “not only severe, but inescapable,” requiring the parents “to perform acts undeniably at odds with fundamental tenets of their religious belief.” Id. at 218.
Plaintiffs face the same type of inescapable choice between acting contrary to their faith and incurring penalties that the religious claimants in these cases faced. In the wake of the Mandate, and beginning on January 1, 2013, Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or suffer severe penalties. They have no other choice. Compliance with the Mandate is not an option for Plaintiffs because they would be facilitating, subsidizing, and encouraging the use of objectionable services. A key purpose of the Mandate and related ACA provisions is to shift a portion of the cost of these and other covered services from individuals to employers through the medium of employer-provided insurance that covers such services. In other words, the intended effect of the Mandate is that individuals who seek covered services (and happen to be employed by an employer that is subject to the Mandate) will pay less out of pocket for such services because the Mandate forces their employer to partially subsidize the provision of such services; the anticipated lower cost to
8 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 14 of 22

employees is not due to health care provider or insurance company generosity, it is expressly paid for by employers at the command of the government. It is this forced subsidization, and not the manner in which employees may spend their own money, to which Plaintiffs object.
Should, however, Plaintiffs exclude emergency contraceptive services in health plans for employees of the Griesedieck Companies, the Griesedieck Companies will face substantial penalties as set forth in 26 U.S.C. § 4980D, in addition to potential lawsuits by plan participants, plan beneficiaries, and the Secretary of Labor. See 29 U.S.C. § 1132(a). Should Plaintiffs drop health insurance for their employees altogether, the Griesedieck Companies could face substantial penalties as set forth in 26 U.S.C. § 4980H, in addition to losing good will with its employees and losing a competitive edge in the employment marketplace. In short, due to the Mandate, Plaintiffs cannot create a health plan for employees of the Griesedieck Companies consistent with their religious beliefs without incurring substantial penalties.
2. RFRA Imposes Strict Scrutiny. RFRA requires application of the “strict scrutiny test.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). This test, which requires “the most rigorous of scrutiny,” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993), “is the most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The government must demonstrate that the challenged law serves “a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). As described above, the strict scrutiny test imposed by RFRA must be conducted “through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-31
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(emphasis added). Indeed, in both Sherbert and Yoder, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431. It is therefore not enough for the government to describe a compelling interest in the abstract or in a categorical fashion; the government must demonstrate that the interest “would be adversely affected by granting an exemption” to the religious claimant. Id. In other words, in this case the government must demonstrate that exempting Plaintiffs from the Mandate would jeopardize its asserted interests even though the government willingly exempts thousands of other employers who employ nearly tens of millions of employees.
3. Defendants Cannot Demonstrate A Compelling Governmental Interest. Just last term, the Supreme Court described a compelling state interest as a “high degree of necessity,” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011), noting that “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of [the asserted right] must be actually necessary to the solution.” See id. at 2738 (citations omitted). The “[m]ere speculation of harm does not constitute a compelling state interest.” Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 543 (1980). As such, the government’s invocation of the promotion of health and equality as compelling interests, without more, is insufficient to meet the demands of strict scrutiny. While recognizing “the general interest in promoting public health and safety,” the Supreme Court has held that “invocation of such general interests, standing alone, is not enough.” O Centro, 546 U.S. at 438. The government must demonstrate “some substantial threat to public safety, peace, or order” that would be posed by exempting the claimant. Yoder, 406 U.S. at 230.
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Defendants have proffered two governmental interests in support of the Mandate: public health and gender equality. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012). What radically undermines the government’s claim that these interests are compelling in this context is the massive number of employees, tens of millions in fact, whose employers are not subject to the Mandate and whose health and equality interests are completely unaffected by it. See Newland, 2012 U.S. Dist. LEXIS 104835 at *23. For example, Defendants cannot explain how these interests can be of the highest order when the Mandate does not apply to plans grandfathered under the ACA. The government itself has estimated that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726, 41732 (July 19, 2010) (emphasis supplied). The court in Newland v. Sebelius found, based on government estimates, that “191 million Americans belong to plans which may be grandfathered under the ACA.” 2012 U.S. Dist. LEXIS 104835 at *4 (emphasis supplied). Defendants cannot justifiably assert that the Mandate serves a compelling interest when tens of millions of individuals are unaffected by it.
Indeed, the government’s alleged interests are further undermined by the fact that though grandfathered plans need not comply with the preventive services challenged here, they must comply with other provisions of the ACA.11/ The government’s decision to impose the prohibition on excessive waiting periods on grandfathered plans, for example, but not preventive services, indicates that the government itself does not think that the Mandate is necessary to protect an interest of the “highest order.” Nor can Defendants explain how their alleged interests can be compelling when employers with fewer than fifty employees12/ have no obligation to
11/ For a summary of the applicability of ACA provisions to grandfathered health plans can, see Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf (last visited Nov. 15, 2012).
12/ More than 20 million individuals are employed by firms with fewer than twenty employees. STATISTICS ABOUT BUSINESS SIZE (INCLUDING SMALL BUSINESS) FROM THE U.S. CENSUS BUREAU, U.S. CENSUS BUREAU, http://www.census.gov/econ/smallbus.html (last visited Nov. 15, 2012).
11 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 17 of 22

provide health insurance for their employees and thus no obligation to comply with the Mandate.13/ With respect to Plaintiffs, Defendants cannot sufficiently explain how there is a compelling interest in coercing Plaintiffs into violating their religious principles when businesses with fewer than fifty employees can avoid the Mandate entirely by not providing any insurance.
The Supreme Court has stated, “[i]t is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (citations and internal quotation marks omitted). It is the existence of these enormous loopholes in the Mandate that led the district court in Newland to find a lack of any compelling interests. See 2012 U.S. Dist. LEXIS 104835 at *23 (stating that the “massive” number of employees untouched by the Mandate “completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs”).
Finally, the Eighth Circuit has implicitly recognized that an employer’s exclusion of contraceptive coverage from its employee health plan does not jeopardize the government’s interest in gender equality. In In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007), the court held that where a health plan excluded contraceptive coverage for both women and men, the plan did not amount to gender-based discrimination under Title VII as amended by the Pregnancy Discrimination Act. If the failure to provide costfree contraceptive services to women does not amount to discrimination (when men are also not covered), then the Mandate is a solution in search of a problem. Cf. Brown, 131 S. Ct. at 2738 (“The State must specifically identify an ‘actual problem’ in need of solving, and the curtailment . . . must be actually necessary to the solution.”).
13/ Employers are not subject to penalties for not providing health insurance coverage if they have fewer than fifty full-time employees. 26 U.S.C. § 4980H(c)(2).
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In sum, Defendants cannot demonstrate a compelling need to require Plaintiffs to comply with a mandate for their approximately 150 employees that does not apply to the employers of tens of millions of employees nationwide. Defendants cannot show a “substantial threat to public safety, peace or order” should Plaintiffs be exempted from the Mandate. Yoder, 406 U.S. at 230.
4. The Mandate Is Not The Least Restrictive Means. The existence of a compelling interest in the abstract does not give Defendants carte blanche to promote that interest through any regulation of their choosing particularly where, as here, Defendants’ attempt at regulation runs up against what Defendants themselves recognize is the exercise of a fundamental right. If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983). Assuming arguendo that the interests proffered by Defendants were compelling, the Mandate is not the least restrictive means of furthering those interests. If Defendants wish to further the interests of health and equality by means of free access to contraceptive services, they could do so in a myriad of ways without coercing Plaintiffs, in violation of their religious exercise, into doing so. For example, the government could 1) provide these services to citizens itself; 2) allow citizens who pay to use contraceptives to submit receipts to the government for reimbursement; 3) offer tax deductions or credits for the purchase of contraceptive services; or 4) provide incentives for pharmaceutical companies that manufacture contraceptives to provide such products to pharmacies, doctor’s offices, and health clinics free of charge. Each of these options would further Defendants’ proffered interests in a direct way that would not impose a substantial burden on persons such as Plaintiffs. See Newland, 2012 U.S. Dist. LEXIS 104835 at *23-27 (rejecting government’s claim that the Mandate furthers a
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compelling governmental interest through the least restrictive means). Of the various ways the government could achieve its interests, it has chosen a path with clear and undeniable adverse consequences to employers with religious objections to contraceptive services, such as Plaintiffs.
Although Defendants may contend that any or all of these options would prove difficult to establish or operate, “least restrictive means” does not mean the most convenient way for the government. Even if the government claims these or other options would not be as effective or efficient as the Mandate, “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 824 (2000) (emphasis added). In fact, if a less restrictive alternative would serve the government’s purpose, “the legislature must use that alternative.” Id. at 813. The asserted interests of health and equality “cannot be invoked as a talismanic incantation to support any [law].” United States v. Robel, 389 U.S. 258, 263 (1967). Thus, Plaintiffs are likely to succeed on their RFRA claim. III. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN
INJUNCTION. An injunction should be issued because Plaintiffs’ RFRA rights are being violated by the Mandate as discussed previously. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“[A] plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”). Plaintiffs must act as soon as possible to have a new health plan in place by the plan renewal date of January 1, 2013. That the companies cannot purchase new coverage or amend their current coverage to exclude the objectionable services because of the Mandate is proof that the Plaintiffs are—at this moment—suffering irreparable harm. IV. AN INJUNCTION WOULD CAUSE NO HARM TO DEFENDANTS. Any argument that Defendants would be harmed by the issuance of a Preliminary Injunction in this case would be meritless. Defendants themselves have already stayed their hand
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for thousands upon thousands of employers of over 100 million employees. An order requiring them to refrain from applying the Mandate to the Griesediecks and the Griesedieck Companies while this case is pending could not conceivably be said to cause harm to any of the Defendants’ interests. Moreover, there is no legitimate governmental interest to be furthered by Defendants’ infringement of Plaintiffs’ rights. See Legatus, 2012 U.S. Dist. LEXIS 156144, *44 (“The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.”). V. THE PUBLIC INTEREST FAVORS A PRELIMINARY INJUNCTION.
The public has no interest in having Defendants violate Plaintiffs’ rights under RFRA; to the contrary, the public has a strong interest in the preservation of religious freedom (as Congress recognized in enacting RFRA). Also, Plaintiffs do not seek to enjoin the Mandate as to all employers, only as to themselves. As such, an injunction will not harm the public interest.
CONCLUSION Because the Plaintiffs have shown that they are currently suffering irreparable harm, that they are likely to succeed on the merits of their claims, that the balance of harms favors the Plaintiffs, and that no harm to the public interest would result from the issuance of the relief requested, this Court should grant Plaintiffs’ motion for a Preliminary Injunction against Defendants’ requirement that Plaintiffs include in their employee health plan coverage for emergency contraception and related patient education and counseling. A proposed form of Order is attached.
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Respectfully submitted on this 20th day of November, 2012.

/s/ Francis J. Manion Francis J. Manion (adm. pro hac vice) Geoffrey R. Surtees (adm. pro hac vice) AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020; Fax: (502) 549-5252 fmanion@aclj.org, gsurtees@aclj.org

Edward L. White III (adm. pro hac vice) AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984; Fax: (734) 302-1758 ewhite@aclj.org

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is an attorney at law and is a person of such age and discretion as to be competent to serve process. That on November 20, 2012 he caused to be served a copy of the foregoing by placing said copy in an overnight envelope and addressed to the persons hereinafter named at the addresses stated below and by depositing said envelope and its contents with the United States Mail:

Eric H. Holder, Jr. U.S. Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Timothy F. Geithner U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Kathleen Sebelius U.S. Depart. of Health & Human Services 200 Independence Avenue, SW Washington, DC 20201
Hilda Solis U.S. Department of Labor 200 Constitution Ave. NW Washington, DC 20210

David M. Ketchmark U.S. Attorney Western District of Missouri 901 St. Louis Springfield, MO 65806

/s/ Francis J. Manion Francis J. Manion (adm. pro hac vice)

16 Case 6:12-cv-03459-RED Document 17 Filed 11/20/12 Page 22 of 22

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

AMERICAN PULVERIZER COMPANY, et al., )

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES, et al.,

)

)

Defendants.

)

Case No.: 12-CV-3459-RED

MOTION OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, THE ACLU OF EASTERN MISSOURI, AND THE ACLU FOUNDATION OF KANSAS AND WESTERN MISSOURI FOR LEAVE TO FILE BRIEF AMICI CURIAE REGARDING
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Come now the American Civil Liberties Union Foundation, ACLU of Eastern Missouri, and the ACLU Foundation of Kansas and Western Missouri (together “ACLU”), through undersigned counsel, and respectfully request leave of this Court to submit the attached amici curiae brief in opposition to the Plaintiffs’ motion for preliminary injunction. The motion for leave to file is based upon the following: 1. Proposed amici recently became aware of Plaintiff’s Motion for Preliminary Injunction filed November 20, 2012. 2. The ACLU respectfully requests that this Court permit it to present the arguments in favor of the constitutionality of the federal contraception rule by granting it leave to file an amicus brief. The proposed brief will not be duplicative of any party’s brief. 3. The ACLU Foundation is a nationwide, non-profit, non-partisan public interest organization of more than 500,000 members dedicated to defending the civil liberties guaranteed by the Constitution. The ACLU of Eastern Missouri, the organization’s affiliate in
1
Case 6:12-cv-03459-RED Document 22 Filed 12/06/12 Page 1 of 4

Eastern Missouri, was founded to protect and advance civil rights and civil liberties in Eastern

Missouri and currently has over 4,500 members in the eastern part of the state. The ACLU of

Kansas & Western Missouri has about 1,500 members in Missouri. The ACLU has a long

history of defending both religious liberty and reproductive freedom. Indeed, the ACLU

vigorously defends individuals’ constitutional rights to exercise and express religious beliefs,

while at the same we have participated in almost every critical case concerning reproductive

rights to reach the Supreme Court.

4. The ACLU is well-placed to submit an amicus brief in this case. It has had

extensive involvement addressing the intersection between religion and reproductive rights.

Specifically, and most relevant to this case, the ACLU filed amicus briefs in several cases

challenging the federal contraception rule, including one in the Eastern District of Missouri. See

O'Brien v. U.S. Dep't of Health & Human Services, 4:12-CV-476 CEJ (E.D. Mo.), Doc. # 35.

5. Moreover, the ACLU filed amicus briefs in two cases challenging, on religious

grounds, state statutes requiring contraception coverage. In both cases, the statutes were upheld.

See Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006); Catholic

Charities of Sacramento, Inc. v. Super. Ct., 85 P.3d 67 (Cal. 2004).

6.

The proposed brief would aid this Court by providing an additional perspective

on Plaintiffs’ likelihood of success on the merits.

7. Counsel for the ACLU has contacted the parties to ascertain their position on this

motion. The government has not yet responded, but in previous cases has advised that it takes no

position. Attorneys for Plaintiffs consent to this motion.

WHEREFORE, the ACLU respectfully requests that this Court grant leave to file the attached

amici curiae brief and such other relief as is proper under the circumstances.

2 Case 6:12-cv-03459-RED Document 22 Filed 12/06/12 Page 2 of 4

December 6, 2012

Respectfully submitted,
/s/ Anthony E. Rothert ANTHONY E. ROTHERT, #44827 AMERICAN CIVIL LIBERTIES UNION
OF EASTERN MISSOURI 454 Whittier Street St. Louis, Missouri 63108 PHONE: (314) 652-3114 FAX: (314) 652-3112 tony@aclu-em.org
ATTORNEY FOR AMICI

3 Case 6:12-cv-03459-RED Document 22 Filed 12/06/12 Page 3 of 4

CERTIFICATE OF SERVICE I hereby certify that on December 6, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and a copy was made available electronically to all electronic filing participants.
/s/ Anthony E. Rothert
4 Case 6:12-cv-03459-RED Document 22 Filed 12/06/12 Page 4 of 4

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION

AMERICAN PULVERIZER COMPANY, et al., Plaintiffs,
v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

) ) ) ) ) Case No.: 12-CV-3459-RED ) ) ) ) )

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, THE AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI, AND THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF KANSAS AND WESTERN MISSOURI IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Amici provide this brief to respectfully request that this Court deny Plaintiffs’ motion for
a preliminary injunction because they have failed to demonstrate a likelihood of success on the
merits. Specifically, Amici write on the issue of whether the federal contraception rule creates a
substantial burden on Plaintiffs’ religious exercise under the Religious Freedom Restoration Act
(“RFRA”). It does not. Indeed, requiring employers – particularly a for-profit employer that
already provides contraception coverage – to provide comprehensive health insurance to its
employees does not substantially burden the company owner’s religious exercise under RFRA.1
RFRA was enacted by Congress in response to the Supreme Court’s decision in Employment
1 The fact that Plaintiffs object to covering some, but not, all methods of contraception does not change the analysis. For example, Plaintiffs object to including emergency contraception (“EC”) in its employees’ health insurance plans. But EC is the primary method used by a woman to prevent pregnancy after intercourse (for example, in cases of rape or contraceptive failure). See generally http://ec.princeton.edu/. Removing EC from health plans hampers a woman’s ability to make decisions about their reproductive lives, including the ability to select a highly effective contraception method to avoid unintended pregnancy.
1
Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 1 of 10

Div. v. Smith, 494 U.S. 872 (1990), to restore the strict scrutiny test for claims alleging the
substantial burden of the free exercise of religion. Specifically, RFRA prohibits the federal
government from “substantially burden[ing] a person’s exercise of religion” unless the
government demonstrates that the burden is justified by a compelling interest and is the least
restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1.
Although RFRA does not define “substantial burden,” the Eighth Circuit has held that a
“rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is
both sincerely held by and rooted in the religious beliefs of the party asserting the claim.”
United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal citations and quotation marks
omitted). Government action imposes a “substantial burden” when there is “no consistent and
dependable way of exercising” one’s faith. Love v. Reed, 216 F.3d 682, 689 (8th Cir. 2000).
While a RFRA claim may proceed when the plaintiff alleges that she was forced by the
government to act in a manner that is inconsistent with her religious beliefs, Ali, 682 F.3d at 710-
11, “a substantial burden must place more than an inconvenience on religious exercise,” and is
“akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”2 Midrash Shephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th
Cir. 2004); see also Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978, 988
(9th Cir. 2006) (“a substantial burden on religious exercise must impose a significantly great
2 Although some of the cases cited herein are Free Exercise cases decided prior to Smith, courts have held that those cases are instructive in RFRA contexts “since RFRA does not purport to create a new substantial burden test” but rather restores the pre-Smith test. Goodall by Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995); see also Living Water Church of God v. Charter Twp. Of Meridian, 258 F. App’x 729, 736 (6th Cir. 2007) (“Congress has cautioned that we are to interpret ‘substantial burden’ in line with the Supreme Court’s ‘Free Exercise’ jurisprudence”). Moreover, Religious Land Use and Institutionalized Persons Act (RLUIPA) cases are also instructive because that statute also prohibits government imposed “substantial burdens” on religion. 42 U.S.C. § 2000cc(a)(1).
2
Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 2 of 10

restriction or onus upon such exercise”) (internal quotation marks and citations omitted); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (the word “substantial” in the “substantial burden” test cannot be rendered “meaningless,” otherwise “the slightest obstacle to religious exercise, . . . however minor the burden it were to impose,” could trigger a RLUIPA violation); Hobby Lobby Stores, Inc. v. Sebelius, No. CIV-12-1000-HE, 2012 WL 5844972, *10 (W.D. Okla. Nov. 19, 2012) (in denying plaintiffs’ motion for preliminary injunction against contraception rule, court noted that “RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise”).
The party claiming a RFRA violation “must establish” that the governmental policy at issue substantially burdens his or her sincerely held religious beliefs. Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). Only after the plaintiff establishes a substantial burden does the burden shift to the government to prove that the challenged policy is the least restrictive means of furthering a compelling government interest. Weir, 114 F.3d at 820. Plaintiffs here cannot meet their burden of demonstrating a likelihood that they will succeed on the merits of their RFRA claim.
As another district court in Missouri recently held, the contraception rule does not rise to the level of placing a substantial burden on a company owner’s religious beliefs. O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476 CEJ, 2012 WL 4481208 (Sept. 28, 2012). The connection between the rule and Plaintiffs’ religious beliefs is simply too attenuated. Id., at *5; see also Hobby Lobby Stores, 2012 WL 5844972, *11 (denying preliminary injunction against federal contraception rule under RFRA because relationship between the rule and the plaintiffs’ religious beliefs was too attenuated). Indeed, the contraceptive rule neither requires employers to physically provide contraception to their employees, nor endorse the use of contraception, and therefore does not “prohibit” any religious practice or otherwise substantially
3 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 3 of 10

burden Plaintiffs’ religious beliefs. Ali, 682 F.3d at 710-11. As the O’Brien court correctly found, the rule only requires Plaintiffs to provide a comprehensive health insurance plan “that might eventually be used by a third party” to obtain health care that is “inconsistent with [Plaintiffs’] religious values.” O’Brien, at *7. But this “indirect financial support of a practice” from which Plaintiffs wish to abstain “according to religious principles” does not constitute a substantial burden on Plaintiffs’ religious exercise. Id., at *6.
Moreover, the O’Brien court’s decision that the contraception rule imposes a de minimis burden on Plaintiffs’ religious practice, id. at, *7, is consistent with several cases analyzing similar governmental policies. For example, the D.C. Circuit upheld the Affordable Care Act’s requirement that individuals have health insurance coverage in the face of a claim that the requirement violated RFRA because it required the plaintiffs to purchase health insurance in contravention of their belief that God would provide for their health. The appellate court affirmed a district court holding that the requirement imposed only a de minimis burden on the plaintiffs’ religious beliefs. Seven-Sky v. Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2001), affirming Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), abrogated on other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). The district court held that “inconsequential burdens” on religious practice, like the requirement to have health insurance “do not rise to the level of a substantial burden.” 766 F. Supp. 2d at 42.
Similarly, the Fourth Circuit in Dole v. Shenandoah Baptist Church held that a religiously affiliated school’s religious practice was not substantially burdened by compliance with the Fair Labor Standards Act (“FLSA”). 899 F.2d 1389 (4th Cir. 1990), cert. denied, 111 S. Ct. 131 (1990). The school paid married male, but not married female, teachers a “salary supplement” based on the school’s religious belief that the husband is the head of the household.
4 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 4 of 10

Id. at 1392. This “head of the household” supplement resulted in a wage disparity between male and female teachers, and accordingly, a violation of FLSA. The Fourth Circuit rejected the school’s claim that compliance with FLSA burdened its religious beliefs, holding that compliance with FLSA imposed, “at most, a limited burden” on the school’s free exercise rights. Id. at 1398. “The fact that [the school] must incur increased payroll expense to conform to FLSA requirements is not the sort of burden that is determinative in a free exercise claim.” Id.; see also Donovan v. Tony & Susan Alamo Found., Inc., 722 F.2d 397, 403 (8th Cir. 1984) (rejecting Free Exercise Clause challenge to FLSA because compliance with those laws cannot “possibly have any direct impact on appellants’ freedom to worship and evangelize as they please. The only effect at all on appellants is that they will derive less revenue from their business enterprises if they are required to pay the standard living wage to the workers.”), aff’d, 471 U.S. 290, 303 (1985).
In yet another case, Goehring v. Brophy, the Ninth Circuit rejected a RFRA claim strikingly similar to Plaintiffs’ claim here. 94 F.3d 1294 (9th Cir. 1996), abrogated on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to paying a registration fee on the ground that the fee was used to subsidize the school’s health insurance program, which covered abortion care. Id. at 1297. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs, but at most placed a “minimal limitation” on their free exercise rights. Id. at 1300. The court noted that the plaintiffs are not “required [themselves] to accept, participate in, or advocate in any manner for the provision of abortion services.” Id.
5 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 5 of 10

Just as the plaintiffs in Goehring failed to state a claim under RFRA because the burden on religion was too attenuated, the same is true here. The fact that someone might have used the student health insurance in Goehring to obtain an abortion, or the fact that Plaintiffs’ employees might use their health insurance to obtain emergency contraception, does not impose a “substantial” burden on religious practice. Moreover, just as in Shenandoah, a requirement that employers provide comprehensive, equal benefits to their female employees does not substantially burden religion.3 Plaintiffs “remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.”4 O’Brien, 2012 WL 4481208, at *6.
Furthermore, RFRA “is a shield, not a sword.” Id. It cannot be used to “force one’s religious practices upon others” and to deny them rights and benefits. Id. This case, and most of the cases discussed above, implicate the rights of third parties, such as providing employees with fair pay, Shenandoah, or ensuring that health insurance benefits of others are not diminished, Goehring. Unlike the seminal cases of Wisconsin v. Yoder, 406 U.S. 205 (1963), and Sherbert v. Verner, 374 U.S. 398 (1972), for example, where only the plaintiffs’ rights were at issue, Plaintiffs here are attempting to invoke RFRA to deny their female employees, who may have different beliefs about contraception use from their employer, equal health benefits. “RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold
3 As the government discusses in its brief, the rule was designed to eradicate gender disparities in health care costs. Defs.’ Suggestions in Opp. to Pls.’ Mot. for Prelim. Inj. at 13-17. 4 Moreover, the same would be true if a company owned by a Jehovah’s Witness attempted to exclude blood transfusions from its employees’ health plan because of her religious beliefs, or a Christian Scientist business owner refused to provide health insurance coverage at all based on his religious beliefs, in violation of the ACA.
6 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 6 of 10

religious beliefs that differ from one’s own.” O’Brien, 2012 WL 4481208, at *6; see also Hobby Lobby, 2012 WL 5844972, at *11 (in rejecting preliminary injunction against contraception rule, the court noted that “many . . . employees are likely to have different religious views”).
Indeed, it is a long road from Plaintiffs’ own religious opposition to contraception use, to an independent decision by an employee to use her health coverage for contraceptives. Id. That is, the independent action of an employee breaks the causal chain for any violation of RFRA. In this respect, the Supreme Court’s decision in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), is instructive. In Zelman, the Court held that a school voucher program did not violate the Establishment Clause because parents’ “genuine and independent private choice” to use the voucher to send their children to religious schools broke “the circuit between government and religion.” Id. at 652. Here, just as the O’Brien court found, “the health care plan will offend plaintiffs’ religious beliefs only if an [] employee (or covered family member) makes the independent decision to use the plan to cover counseling related to or the purchase of contraception.” 2012 WL 4481208, *7. Therefore, as in Zelman, this scenario involves an employee’s independent and private choice, which breaks the causal chain between government mandate and free exercise of religion. Any slight burden on Plaintiffs’ religious exercise is far too remote to warrant a finding of a RFRA violation.
Indeed, the burden on Plaintiffs’ religious exercise is just as remote as other activities that they subsidize that are also at odds with their religious beliefs. For example, as the O’Brien court found, Plaintiffs “pay salaries to their employees – money the employees may use to purchase contraceptives.” Id. And just as the court recognized in Mead, Plaintiffs “routinely contribute to other forms of insurance” via their taxes that include contraception coverage such as Medicaid, and they contribute to federally funded family planning programs. These federal
7 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 7 of 10

programs “present the same conflict with their [religious] beliefs.” 766 F. Supp. 2d at 42. But like the federal contraception rule, the connection between these programs and Plaintiffs’ religious beliefs is too attenuated. Indeed, the Eighth Circuit has held that a religious objection to the use of taxes for medical care funded by the government does not even create a cognizable injury. Tarsney v. O’Keefe, 225 F.3d 929 (8th Cir. 2000) (holding that plaintiffs lacked standing to challenge under the Free Exercise Clause the expenditure of state funds on abortion care for indigent women).
Moreover, the fact that Plaintiffs have been providing contraception coverage, including emergency contraception, Pls.’ Suggestions in Supp. of Mot. for Prelim. Inj. at 3, also demonstrates that the burden to Plaintiffs’ religious exercise is minimal. There is no dispute that Plaintiffs are sincere in their religious objection to emergency contraception. But courts have looked to compliance with objected-to laws to ascertain the substantiality of the burden involved. In Shenandoah, for example, the fact that the school had come into compliance with FLSA was one relevant factor in the court’s determination that compliance with FLSA would not substantially burden the school’s religious exercise. 899 F.2d at 1397-98. Here, prior to the passage of the ACA and the contraception rule, the health insurance Plaintiffs provided to their employees included coverage for contraception, including emergency contraception. The fact that Plaintiffs have been providing contraceptive coverage further demonstrates that any burden on Plaintiffs’ religious beliefs that is imposed by the rule is minimal.
8 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 8 of 10

CONCLUSION For the foregoing reasons, this Court should deny Plaintiffs’ motion for a preliminary injunction.

December 6, 2012

Respectfully submitted,
/s/ Anthony E. Rothert Anthony E. Rothert, #44827 Grant R. Doty, #60788 AMERICAN CIVIL LIBERTIES UNION
OF EASTERN MISSOURI 454 Whittier Street St. Louis, Missouri 63108 PHONE: (314) 652-3114 FAX: (314) 652-3112 tony@aclu-em.org grant@aclu-em.org
Stephen Douglas Bonney, Mo. #36164 ACLU Foundation of Kansas & Western Missouri 3601 Main Street Kansas City, MO 64111 Tel. (816) 994-3311 Fax: (816) 756-0136 E-mail: dbonney@aclukswmo.org
Brigitte Amiri* American Civil Liberties Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 519-7897 Email: bamiri@aclu.org
* Pro hac vice motion forthcoming
ATTORNEYS FOR AMICI

9 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 9 of 10

CERTIFICATE OF SERVICE I hereby certify that on December 6, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and a copy was made available electronically to all electronic filing participants.
/s/ Anthony E. Rothert
10 Case 6:12-cv-03459-RED Document 22-1 Filed 12/06/12 Page 10 of 10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

AMERICAN PULVERIZER CO., et al., )

)

Plaintiffs,

)

)

vs.

)

)

UNITED STATES DEPARTMENT OF, )

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

Case No. 12-3459-CV-S-RED

ORDER

Before the Court is parties = Joint Motion to Stay Distri ct Court Proceedings Pending

Appeal (Doc. 43). After caref ul consideration, the Court GRANTS this m otion. The above

captioned case is STAYED until the interlocutory appeal that is currently bef ore the Eighth

Circuit Court of Appeals has b een resolved and this Court has received the m andate from the

Eighth Circuit Court of Appeals.

IT IS SO ORDERED.

DATED: February 20, 2013

/s/ Richard E. Dorr RICHARD E. DORR, JUDGE UNITED STATES DISTRICT COURT

Case 6:12-cv-03459-RED Document 45 Filed 02/20/13 Page 1 of 1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

AMERICAN PULVERIZER CO., et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
Defendants.

) ) ) ) ) Case No. 6:12-cv-03459-MDH ) ) ) ) ) )

INJUNCTION AND JUDGMENT In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon the parties’ Joint Motion for Entry of Injunction and Judgment (Doc. 55): IT IS HEREBY ORDERED that Defendants, their employees, agents, and successors in office are permanently enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiffs Springfield Iron and Metal, LLC; American Pulverizer Company; Hustler Conveyor Company; and City Welding (hereinafter, “the Springfield Iron Companies”) to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which Plaintiffs

Case 6:12-cv-03459-MDH Document 56 Filed 10/30/14 Page 1 of 3

object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. §

2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and

(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014

Contraceptive Coverage Requirement, including those found in 26 U.S.C.

§ 4980D and 29 U.S.C. §§ 1132 and 1185d; and

(b) from taking any other actions based on noncompliance with the June 30, 2014

Contraceptive Coverage Requirement

against Plaintiffs Springfield Iron Companies, their employee health plan(s), the group health

coverage provided in connection with such plan(s), and/or the Springfield Iron Companies’

health insurance issuers and/or third-party administrators with respect to the Springfield Iron

Companies’ health plan(s).

IT IS FURTHER ORDERED that judgment is entered in favor of Plaintiffs and against

Defendants on Plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§

2000bb et seq.

IT IS FURTHER ORDERED that all other claims against Defendants are DISMISSED.

IT IS FURTHER ORDERED that any petition by Plaintiffs for attorneys’ fees or costs

shall be submitted on or before 60 days from the date this judgment is issued.

IT IS FURTHER ORDERED that this Injunction and Judgment does not apply with

respect to any changes in statute or regulation that are enacted or promulgated after this date, and

nothing herein prevents Plaintiffs from filing a new civil action to challenge any such future

changes.

IT IS SO ORDERED:

Date: October 30, 2014

/s/ Douglas Harpool_____________

2 Case 6:12-cv-03459-MDH Document 56 Filed 10/30/14 Page 2 of 3

DOUGLAS HARPOOL UNITED STATES DISTRICT JUDGE
3 Case 6:12-cv-03459-MDH Document 56 Filed 10/30/14 Page 3 of 3

 
 CLOSED,EAPN,PHV
U.S. District Court Western District of Missouri (Springfield) CIVIL DOCKET FOR CASE #: 6:12−cv−03459−MDH

American Pulverizer Co. et al v. United States Department of Health and Human Services et al Assigned to: District Judge M. Douglas Harpool Case in other court: 13−01395 Cause: 28:1331 Federal Question: Other Civil Rights
Movant

Date Filed: 10/19/2012 Date Terminated: 10/30/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

American Civil Liberties Union Foundation

represented by Anthony E. Rothert American Civil Liberties Union of Missouri Foundation−StL 454 Whittier Street St. Louis, MO 63108 (314) 669−3420 Fax: (314) 652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri 125 Broad St. 18th Floor New York, NY 10004 212−519−7897 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Grant R. Doty United States Equal Employment Opportunity Commission − Stl 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: 314−539−7895 Email: grant.doty@eeoc.gov ATTORNEY TO BE NOTICED

Movant
American Civil Liberties Union of Eastern Missouri

represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Grant R. Doty (See above for address) ATTORNEY TO BE NOTICED

Movant

represented by Case: 6:12-cv-3459 As of: 04/10/2016 07:36 PM CDT 1 of 10

American Civil Liberties Union Foundation of Kansas and Western Missouri

Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff American Pulverizer Co.

represented by Edward L. White , III American Center for Law & Justice 3001 Plymouth Road Suite 203 Ann Arbor, MI 48105 734−680−8007 Fax: 734−680−8006 Email: ewhite@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Francis J. Manion American Center for Law & Justice PO Box 60 New Hope, KY 40052 (502) 549−7020 Fax: (502) 549−5252 Email: fmanion@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Geoffrey R Surtees American Center for Law & Justice 6375 New Hope Road New Hope, KY 40052 (502) 549−7020 Fax: (502) 549−5252 Email: gsurtees@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Todd Nielsen 3174 Southwest State Rte. T Polo, MO 64671 (816) 352−9529 Email: toddanielsen@yahoo.com ATTORNEY TO BE NOTICED

Plaintiff Hustler Conveyor Co.

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

Case: 6:12-cv-3459

Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE
As of: 04/10/2016 07:36 PM CDT 2 of 10

ATTORNEY TO BE NOTICED

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

Todd Nielsen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff City Welding

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

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

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

Todd Nielsen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Paul Griesedieck

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

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

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

Todd Nielsen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Henry Greisedieck

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

Case: 6:12-cv-3459 As of: 04/10/2016 07:36 PM CDT 3 of 10

Plaintiff Springfield Iron and Metal, LLC

ATTORNEY TO BE NOTICED
Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Geoffrey R Surtees (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Todd Nielsen (See above for address) ATTORNEY TO BE NOTICED
represented by Edward L. White , III (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Francis J. Manion (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Geoffrey R Surtees (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Todd Nielsen (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Health and Human Services

represented by Michelle Bennett United States Department of Justice−DC 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 305−8902 Fax: (202) 616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

United States Department of Labor

represented by

Case: 6:12-cv-3459 As of: 04/10/2016 07:36 PM CDT 4 of 10

Defendant Secretary of Labor Hilda L Solis Secretary of U.S. Dept. of Labor and in her official capacity
Defendant Kathleen Sebelius Secretary of the U.S. Dept. of Health & Human Services, in her official capacity
Defendant Timothy Geithner Secretary of the U.S. Dept. of the Treasury, in his official capacity

Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/19/2012
10/22/2012
10/22/2012 10/22/2012

# Docket Text
1 COMPLAINT against All Defendants filed by Todd Nielsen on behalf of All Plaintiffs. Filing fee $350, receipt number 0866−3275623. Service due by 2/22/2013. (Attachments: # 1 Civil Cover Sheet)(Nielsen, Todd) (Entered: 10/19/2012)
2 Notice of EAP assignment to an outside mediator. (Attachments: # 1 EAP General Order)(Howard, Linda) (Entered: 10/19/2012)
NOTICE OF MAGISTRATE ASSIGNMENT emailed to attys for pltfs This is a docket entry only. No document is attached. Magistrate Return due by 11/13/2012 (Howard, Linda) (Entered: 10/19/2012)
3 Motion to allow Francis J. Manion to appear pro hac vice (Pro Hac fee $100 receipt number 0866−3275969) filed by Todd Nielsen on behalf of All Plaintiffs. (Nielsen, Todd) (Entered: 10/19/2012)
4 Motion to allow Geoffrey R. Surtees to appear pro hac vice (Pro Hac fee $100 receipt number 0866−3275989) filed by Todd Nielsen on behalf of All Plaintiffs. (Nielsen, Todd) (Entered: 10/19/2012)
5 DISCLOSURE OF CORPORATE INTERESTS filed by Todd Nielsen on behalf of Plaintiffs American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC.(Nielsen, Todd) (Entered: 10/19/2012)
6 ORDER granting 4 motion to appear pro hac vice approved by Clerk of Court. Attorney Geoffrey R. Surtees appearing on behalf of all plaintiffs This entry will serve as authorization for the pro hac participation by the attorney. (Howard, Linda) Modified on 10/22/2012 (Howard, Linda). (Entered: 10/22/2012)
7 ORDER granting 3 motion to appear pro hac vice approved by Clerk of Court. Attorney Francis J. Manion for all plaintiffs This entry will serve as authorization for the pro hac participation by the attorney. (Howard, Linda) (Entered: 10/22/2012)
SUMMONS ISSUED as to Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury, U.S. Attorney and U.S. Attorney General. Summonses returned via electronic mail to counsel for Plaintiff for service. (Burch, C. Steve) (Entered: 10/22/2012)

Case: 6:12-cv-3459 As of: 04/10/2016 07:36 PM CDT 5 of 10

10/26/2012 10/29/2012 10/29/2012 10/30/2012 10/30/2012 11/05/2012 11/08/2012 11/08/2012 11/09/2012 11/20/2012 11/20/2012
11/29/2012

8 Motion to allow Edward L. White, III to appear pro hac vice (Pro Hac fee $100 receipt number 0866−3284110) filed by Todd Nielsen on behalf of All Plaintiffs. (Nielsen, Todd) (Entered: 10/26/2012)
9 ORDER granting 8 motion to appear pro hac vice approved by Clerk of Court. Attorney Edward L. White, III for American Pulverizer Co., City Welding, Henry Greisedieck,Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney. (Howard, Linda) (Entered: 10/29/2012)
10 RETURN OF SERVICE of complaint executed by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. U.S. Attorney for the W.D. of MO served on 10/25/2012. (Attachments: # 1 Exhibit USPS Track and Confirm and Receipt)(Nielsen, Todd) (Entered: 10/29/2012)
11 RETURN OF SERVICE of complaint executed by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. U.S. Attorney for the W.D. of MO served on 10/25/2012. (Attachments: # 1 Summons, # 2 USPS return receipt card and proof of delivery)(Nielsen, Todd) (Entered: 10/30/2012)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 10/29/2012 as Document No. 11, Return of Service. The document has been deleted as the incorrect document was filed. Counsel has refiled the document as Document Number 11. This is a text entry only − no document is attached. (Burch, C. Steve) (Entered: 10/30/2012)
12 RETURN OF SERVICE of complaint executed by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. Hilda Solis and U.S. Dept. of Labor served on 10/31/2012. (Attachments: # 1 Exhibit Proof of Service)(Manion, Francis) (Entered: 11/05/2012)
13 RETURN OF SERVICE of complaint executed by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. Timothy Geithner and U.S. Dept. of Treasury served on 10/31/2012. (Attachments: # 1 Exhibit Proof of Service)(Manion, Francis) (Entered: 11/08/2012)
14 RETURN OF SERVICE of complaint executed by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. Kathleen Sebelius and U.S. Dept. of Health and Human Services served on 10/31/2012. (Attachments: # 1 Exhibit Proof of Service)(Manion, Francis) (Entered: 11/08/2012)
15 NOTICE OF REASSIGNMENT from Magistrate Judge James C. England to District Judge Richard E. Dorr. New case number is 12−3459−CV−S−RED. (Text entry only − no document attached) (Howard, Linda) (Entered: 11/09/2012)
16 MOTION for preliminary injunction filed by Francis J. Manion on behalf of American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co.. Suggestions in opposition/response due by 12/7/2012 unless otherwise directed by the court. (Manion, Francis) (Entered: 11/20/2012)
17 SUGGESTIONS in support re 16 MOTION for preliminary injunction filed by Francis J. Manion on behalf of Plaintiffs American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. (Attachments: # 1 Exhibit A, Declaration of Paul Griesedieck, # 2 Exhibit B, Declaration of Henry Griesedieck, # 3 Proposed Order)(Related document(s) 16 ) (Manion, Francis) (Entered: 11/20/2012)
18 NOTICE of filing Supplemental Authority by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Springfield Iron and Metal, LLC (Attachments: # 1 Exhibit U.S.C.A. 8th Cir. 12−3357, Appellants Motion for Preliminary Injunction, # 2 Exhibit U.S.C.A. 8th Cir. 12−3357, Order)(Manion, Francis) (Entered: 11/29/2012)

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12/03/2012 12/04/2012
12/06/2012 12/06/2012
12/06/2012 12/06/2012 12/07/2012
12/10/2012 12/12/2012 12/12/2012 12/12/2012 12/13/2012 12/13/2012

19 Consent MOTION for leave to file excess pages filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 12/20/2012 unless otherwise directed by the court. (Bennett, Michelle) (Entered: 12/03/2012)
20 SUGGESTIONS in opposition re 16 MOTION for preliminary injunction filed by Michelle Bennett on behalf of Defendants Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. Reply suggestions due by 12/21/2012 unless otherwise directed by the court (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 16 ) (Bennett, Michelle) (Entered: 12/04/2012)
21 ORDER granting 19 motion for leave to file excess pages; 20 opposition to motion for preliminary injunction deemed appropriately filed. (Schroeppel, Kerry) (Entered: 12/06/2012)
22 MOTION for leave to file BRIEF AMICI CURIAE filed by Anthony E. Rothert on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union of Eastern Missouri, American Civil Liberties Union Foundation of Kansas and Western Missouri. Suggestions in opposition/response due by 12/24/2012 unless otherwise directed by the court. (Attachments: # 1 Proposed Brief Amici Curiae)(Rothert, Anthony) (Entered: 12/06/2012)
23 Motion to allow Brigitte Amiri to appear pro hac vice (Pro Hac fee $100 receipt number 0866−3328924) filed by Anthony E. Rothert on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Kansas and Western Missouri, American Civil Liberties Union of Eastern Missouri. (Rothert, Anthony) (Entered: 12/06/2012)
24 DISCLOSURE OF CORPORATE INTERESTS filed by Anthony E. Rothert on behalf of Movants American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Kansas and Western Missouri, American Civil Liberties Union of Eastern Missouri.(Rothert, Anthony) (Entered: 12/06/2012)
25 ORDER granting 23 motion to appear pro hac vice approved by Clerk of Court. Attorney Brigitte Amiri for American Civil Liberties Union Foundation,Brigitte Amiri for American Civil Liberties Union Foundation of Kansas and Western Missouri,Brigitte Amiri for American Civil Liberties Union of Eastern Missouri allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney. (Howard, Linda) (Entered: 12/07/2012)
26 REPLY SUGGESTIONS to motion re 16 MOTION for preliminary injunction filed by Francis J. Manion on behalf of Plaintiffs American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. (Related document(s) 16 ) (Manion, Francis) (Entered: 12/10/2012)
27 ORDER granting 22 Motion for Leave to File Brief Amici Curiae regarding Plaintiffs Motion for Preliminary Injunction, ddl 12/19/2012 12:00 PM. (Schroeppel, Kerry) (Entered: 12/12/2012)
28 ORDER setting teleconference 12/19/2012 03:00 PM re 16 Motion for Preliminary Injunction. (Schroeppel, Kerry) (Entered: 12/12/2012)
29 Consent MOTION for extension of time to respond to plaintiffs' complaint filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 12/31/2012 unless otherwise directed by the court. (Bennett, Michelle) (Entered: 12/12/2012)
30 NOTICE of appearance by Grant R. Doty on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union of Eastern Missouri (Doty, Grant) (Entered: 12/13/2012)
31 Amicus Curiae APPEARANCE entered by Anthony E. Rothert on behalf of American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Kansas and Western Missouri, American Civil Liberties Union of Eastern Missouri. (Rothert, Anthony) (Entered: 12/13/2012)

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12/13/2012

32 SUGGESTIONS in opposition re 16 MOTION for preliminary injunction filed by Anthony E. Rothert on behalf of Movants American Civil Liberties Union Foundation, American Civil Liberties Union Foundation of Kansas and Western Missouri, American Civil Liberties Union of Eastern Missouri. Reply suggestions due by 12/31/2012 unless otherwise directed by the court (Related document(s) 16 ) (Rothert, Anthony) (Entered: 12/13/2012)

12/14/2012

33 ORDER granting 29 Unopposed Motion for an Extension of Time to Respond to Plaintiffs Complaint, ddl to respond to complaint extended to 1/21/2013.(Schroeppel, Kerry) (Entered: 12/14/2012)

12/17/2012

34 REPLY SUGGESTIONS to motion re 16 MOTION for preliminary injunction and reply to brief of amici ACLU filed by Francis J. Manion on behalf of Plaintiffs American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC. (Related document(s) 16 ) (Manion, Francis) (Entered: 12/17/2012)

12/18/2012

35 NOTICE of filing of Supplemental Authority by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury re 16 MOTION for preliminary injunction (Attachments: # 1 Exhibit : Korte Decision)(Bennett, Michelle) (Entered: 12/18/2012)

12/18/2012

36 NOTICE of filing Plaintiffs' Response to Defendants' Notice of Supplemental Authority by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC re 35 Notice of filing, (Surtees, Geoffrey) (Entered: 12/18/2012)

12/19/2012

37 Minute Entry. Proceedings held before District Judge Richard E. Dorr: TELEPHONE CONFERENCE held on 12/19/2012. To order a transcript of this hearing please contact Jeannine Rankin, 417−225−7713. (Burch, C. Steve) (Entered: 12/20/2012)

12/20/2012 38 ORDER granting 16 Motion for Preliminary Injunction. (Schroeppel, Kerry) (Entered: 12/20/2012)

01/02/2013

39 ELECTRONIC TRANSCRIPT of Teleconference held December 19, 2012 before Judge Richard E. Dorr. Court Reporter: Jeannine Rankin, 417−225−7713, jeannine_rankin@mow.uscourts.gov. Number of pages: 10. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 1/10/2013. Release of Transcript Restriction set for 4/4/2013.(Rankin, Jeannine) (Entered: 01/02/2013)

01/11/2013

40 Joint MOTION for extension of time for defendants to respond to the complaint and extension of other deadlines filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 1/28/2013 unless otherwise directed by the court. (Bennett, Michelle) (Entered: 01/11/2013)

01/16/2013

41 ORDER granting 40 Motion for Extension of Time, ddl to respond to complaint extended to 2/25/2013, proposed scheduling order and ddl to submit initial disclosures extended to 3/18/2013. (Schroeppel, Kerry) (Entered: 01/16/2013)

02/19/2013

42 NOTICE OF APPEAL as to 38 Order on Motion for Preliminary Injunction by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 02/19/2013)

02/19/2013

43 Joint MOTION to stay district court proceedings pending appeal filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 3/8/2013 unless otherwise directed by the court. (Bennett, Michelle) (Entered: 02/19/2013)

02/20/2013 44 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document 42 Notice of Appeal,. (Howard, Linda)

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02/20/2013 02/26/2013 02/26/2013 06/05/2013 07/06/2013 04/21/2014 08/06/2014 09/08/2014
09/10/2014 09/15/2014 09/30/2014 10/01/2014
10/01/2014 10/15/2014 10/30/2014

(Entered: 02/20/2013)
45 ORDER granting 43 Joint Motion to Stay, case stayed pending resolution of interlocutory appeal. (Schroeppel, Kerry) (Entered: 02/20/2013)
USCA Case Number is 13−1395 for 42 Notice of Appeal, filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, United States Department of Health and Human Services, Hilda L Solis, United States Department of Labor. (Anderson, Christy) (Entered: 02/26/2013)
USCA Case Number is 13−1395 for 42 Notice of Appeal, filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, United States Department of Health and Human Services, Hilda L Solis, United States Department of Labor. (Anderson, Christy) (Entered: 02/26/2013)
46 TRANSFER ORDER. Due to the death of Judge Dorr, this case has been reassigned to Robert T Dawson for all further proceedings. (Attachments: # 1 Civil Cases) (Williams, Karyn) (Entered: 06/05/2013)
47 NOTICE of change of address by Edward L. White, III (White, Edward) (Entered: 07/06/2013)
48 ORDER TRANSFERRING/REASSIGNING CASE. Case reassigned to District Judge M. Douglas Harpool for all further proceedings. Robert T Dawson no longer assigned to case (Howard, Linda) (Entered: 04/21/2014)
49 NOTICE of change of address by Todd Nielsen (Nielsen, Todd) (Entered: 08/06/2014)
50 USCA Judgment as to 42 Notice of Appeal, filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Anderson, Christy) (Entered: 09/08/2014)
51 MANDATE of US COURT OF APPEALS as to 42 Notice of Appeal, filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor with mandate issued on 9/10/14. (Anderson, Christy) (Entered: 09/10/2014)
52 Rule 16 Notice. Proposed scheduling order due by 10/30/2014. Rule 26 conference due by 10/15/2014. Signed on 9/15/14 by District Judge M. Douglas Harpool. (View, Pat) (Entered: 09/15/2014)
53 NOTICE of filing Corporate Party Statement by American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC (Surtees, Geoffrey) (Entered: 09/30/2014)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 9/30/2014 as Document No. 53, Corporate Party Statement. The document has been deleted as the incorrect event was used when filing the document. Counsel will refile the document using the correct event (Disclosure of corporate interests). This is a text entry only − no document is attached. (Burch, C. Steve) (Entered: 10/01/2014)
54 DISCLOSURE OF CORPORATE INTERESTS filed by Geoffrey R Surtees on behalf of Plaintiffs American Pulverizer Co., City Welding, Henry Greisedieck, Paul Griesedieck, Hustler Conveyor Co., Springfield Iron and Metal, LLC.(Surtees, Geoffrey) (Entered: 10/01/2014)
55 Joint MOTION for consent judgment filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 11/3/2014 unless otherwise directed by the court. (Attachments: # 1 Proposed Injunction and Judgment)(Bennett, Michelle) (Entered: 10/15/2014)
56 ORDER granting 55 motion for consent judgment. Signed on 10/30/2014 by District Judge M. Douglas Harpool. (Hance, Breanna) (Entered: 10/30/2014)

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12/15/2014 12/15/2014

57 Joint MOTION for extension of time to file petition for attorney's fees and costs filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 1/2/2015 unless otherwise directed by the court. (Bennett, Michelle) (Entered: 12/15/2014)
58 ORDER granting 57 motion for extension of time. Any petition for attorney's fees or costs in this matter shall be submitted to the Court on or before 1/28/2015. Signed on 12/15/2014 by District Judge M. Douglas Harpool. This is a TEXT ONLY ENTRY. No document is attached.(Hance, Breanna) (Entered: 12/15/2014)

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