Case 1:12-cv-01096-RJJ Doc #1 Filed 10/08/12 Page 1 of 31 Page ID#1

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

AUTOCAM CORPORATION; AUTOCAM MEDICAL, LLC; JOHN KENNEDY; PAUL KENNEDY; JOHN KENNEDY IV; MARGARET KENNEDY; and THOMAS KENNEDY

Case No. Hon.

Plaintiffs,

v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Jason C. Miller (P#76236) MILLER JOHNSON Attorneys for Plaintiffs 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj @millerj ohnson. com

Patrick T. Gillen (P#47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu

Thomas Brejcha* Peter Breen* Thomas More Society Attorneys for Plaintiffs 29 South LaSalle St. - Suite 440 Chicago, I L 60603 Tel. 312-782-1680 tbrej cha@thomasmoresociety.org pbreen@thomasmoresociety.org *Application for admission to be filed.

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V E R I F I E D COMPLAINT AND DEMAND FOR INJUNCTIVE R E L I E F Comes now Plaintiffs Autocam Corporation and Autocam Medical Corporation, John Kennedy, Paul Kennedy, John Kennedy IV, Margaret Kennedy, and Thomas Kennedy (collectively "Plaintiffs"), by and through undersigned counsel, bring this Verified Complaint against the above-named Defendants, and in support thereof state the following:

NATURE OF THE ACTION 1. This case presents constitutional and statutory challenges to administrative regulations ("the Mandate") ostensibly issued under the "Patient Protection and Affordable Care Act" (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the "Health Care and Education Reconciliation Act" (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the "Affordable Care Act"), which force the Plaintiffs to pay for and facilitate access to drugs and services which the Plaintiffs believe to be intrinsically wrong and gravely sinful in light of their sincerely held religious convictions. Plaintiffs object to the Mandate because it compels them to violate deeply held religious convictions and subsidize speech with which they disagree. As a result, the Mandate violates the right to religious liberty and free speech protected by the First Amendment as well as rights protected under federal law. Plaintiffs seek judicial relief that will prevent the Defendants from enforcing the tyrannical Mandate and thereby redress the violation of their rights demonstrated herein.

2.

The Affordable Care Act mandates that health plans "provide coverage for and shall

not impose any cost sharing requirements for . . . with respect to women, such additional preventive

care and screenings . . . as provided for in comprehensive guidelines supported by the Health

Resources and Services Administration" and directs the Secretary of the United States Department of

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Health and Human Services to determine what would constitute "preventative care" under the mandate. 42 U.S.C § 300gg-l3(a)(4).
3. Without meaningful notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine ("IOM") recommendations in full and promulgated the Mandate as an interim final rule that requires that all "group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage" provide all FDA-approved contraceptive methods, including abortifacient contraception, and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
4. The Health Resources and Services Administration issued guidelines adopting the IOM recommendations, (http://www.hrsa.gov/womensguidelines).
5. Under the IOM guidelines, the Mandate requires all insurance insurers to provide not only sterilization and contraception but also abortions, because certain drugs and devices such as the "Plan B," known as the "morning-after pill,"and "ella," known as the "week-after pill," come within the Mandate's and Health Resources and Services Administration's definition of "Food and Drug Administration-approved contraceptive methods" despite their known abortifacient mechanisms of action, as well as sterilization methods approved by the FDA.
6. Thus, the Mandate requires covered group health plans and health insurance issuers to provide contraception, including abortifacient contraception, and sterilization services, as well as counseling relating to the same, in all of its insurance plans, group and individual.
7. The Mandate from the United States Department of Health and Human Services forces the Plaintiffs to choose between their sincerely held religious beliefs and civil penalties. By virtue of their sincerely held religious convictions the Plaintiffs believe that each human person is created in the image and likeness of God and must be protected from the moment of conception to

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the moment of natural death. Plaintiffs further believe that human sexuality is a gift from God designed to unite spouses in marriage and transmit human life. As a result of these sincerely held religious beliefs Plaintiffs cannot provide, facilitate access to, subsidize, or cooperate with the provision of, drugs or services that facilitate contraception, including abortifacient contraception, or sterilization, because to do so would be cooperation with practices they sincerely believe to be gravely wrong and sinful.
8. The Mandate, i f left unchecked, forces Plaintiffs to violate their religious beliefs because it requires them to provide drugs and services contrary to their deeply held religious beliefs or pay ruinous fines which would total sixty-six thousand dollars per day of noncompliance ($66,000) or twenty-four million dollars ($24,000,000) a year.
9. Plaintiffs seek a declaration that the Mandate violates their rights as well as a preliminary and permanent injunction enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate, so that they can continue to conduct their business operations in a manner that is consistent with their sincerely held religious convictions.
10. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our constitutional guarantees of free exercise of religion and freedom of speech, as well as the protection of innocent human life and the sanctity of marriage.
JURISDICTION AND VENUE 11. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 12. Plaintiffs' claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil

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Procedure, by 28 U.S.C. § 2000bb-l, and by the general legal and equitable powers of this Court. 13. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in
which Plaintiffs are located. PLAINTIFFS
14. Plaintiff Autocam is a Michigan corporation with its registered office located at 4436 Broadmoor SE, Kentwood, M I 49512.
15. Plaintiff Autocam Medical is a Michigan limited liability corporation with its registered office located at 4436 Broadmoor SE, Kentwood, M I 49512.
16. The Autocam Plaintiffs are West-Michigan based manufacturing companies that, along with their subsidiaries, have 14 facilities worldwide and over 1,500 employees, 661 of whom work in the United States of America, of which 478 are employed by Autocam and 183 are employed by Autocam Medical.
17. John Kennedy is the President and Chief Executive Officer of Autocam and is an owner of Autocam. He has the responsibility for setting all policies governing the conduct of all phases of business of Autocam, including decisions concerning insurance. He resides in the Western District of Michigan.
18. Plaintiff Margaret Kennedy resides in the Western District of Michigan and is an owner of Autocam.
19. Plaintiff Thomas Kennedy resides in the Western District of Michigan and is an owner of Autocam.
20. Plaintiff John Kennedy IV is an owner of Autocam residing outside the district. 21. Plaintiff Paul Kennedy is an owner of Autocam residing outside the district. 22. The Kennedy Plaintiffs own and control the Autocam Plaintiffs.

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23. The Kennedy Plaintiffs with a controlling interest in the Autocam Plaintiffs object to the Mandate.
DEFENDANTS 24. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 25. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services ("HHS"). In this capacity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only. 26. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit. 27. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she holds responsibility for the operation and management of the United States Department of Labor. Defendant Solis is sued in her official capacity only. 28. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit. 29. Defendant Timothy Geithner is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Geithner is sued in his official capacity only. 30. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit.

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FACTUAL ALLEGATIONS Plaintiffs' Religious Beliefs and Business Operations.
31. Plaintiffs are adherents of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. These teachings prohibit the Plaintiffs from participating in, paying for, training others to engage in, or otherwise cooperating in the practice of contraception, including abortifacient contraception, and sterilization.
32. Plaintiffs' sincerely held religious convictions also prevent them from adopting the spurious position that their religious beliefs do not apply when they enter the world of work. Quite the contrary, Plaintiffs believe that they are called to live out the teachings of Christ in their daily activity and witness to the truth of the Gospel by treating others in a manner that reflects their commitment to human dignity.
33. Plaintiffs Autocam and Autocam Medical are for-profit corporations that merely represent the business form through which the individual Plaintiffs endeavor to live their vocation as Christians in the world.
34. The Autocam Plaintiffs are self-insured and provide health benefits to their employees by virtue of a jointly administered benefits plan which features a group insurance plan used to provide benefits to full-time employees.
35. Plaintiffs have earnestly endeavored over the years to provide their employees with high quality employee health coverage. Plaintiffs recognize that this is a practical need insofar as they must be able to attract skilled employees in order for them to remain in business.
36. But precisely because Plaintiffs seek to live their Christian vocation as individuals who do not check their religious beliefs at the door of the workplace, they have gone above and beyond the minimal requirements of the market in their treatment of their employees. For example, Autocam's benefits plan is designed so that the employee is not charged a premium and ninety-one

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percent (91%) of its current employees pay no premiums at present; Autocam gives its employees fifteen hundred dollars ($1,500) toward meeting the plan's deductible and advances funds to employees in need; Autocam's benefits plan includes a wellness feature recently selected to the Honor Roll of the 2012 Michigan's Healthiest Employers program; and Autocam's program covers one hundred percent (100%) of the cost of employees' preventive care, including health maintenance exams, including X-rays, scans, gynecological exams, and screenings, pre-natal, post-natal, and wellbaby care. In these and other ways Autocam seeks to recognize and support the dignity of their employees.
37. Despite their evident desire to support the health and well-being of employees Plaintiffs cannot provide, fund, or participate in health care insurance that covers artificial contraception, including abortifacient contraception, sterilization, and related education and counseling, without violating Plaintiffs' deeply held religious beliefs. I f they did so, the Plaintiffs would contradict the very set of core religious convictions that inspire their efforts to treat employees well.
38. For these reasons Plaintiffs have taken great pains through the years to ensure that its employees' insurance plans do not cover the objectionable drugs or services at issue here, i.e., contraception, including abortifacient contraception, and sterilization.
39. Plaintiffs specifically designed a health insurance plan to exclude contraception, including abortifacient contraception, sterilization, and counseling relating to the same, precisely because Plaintiffs seek to do business in a manner fully consistent with their religious convictions.
40. Plaintiffs have always taken great care to do so because as a self-insuring entity the Plaintiffs play a direct role in paying for the drugs and services used by their employees. The Plaintiffs cut the check that pays for expenses which means that Plaintiffs would be forced to pay for drugs and procedures directly contrary to their religious convictions .

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41. The Mandate effectively strips the Plaintiffs of their ability to provide employee benefits in a manner that is consistent with their sincerely held religious convictions. I f Plaintiffs do not comply with the mandate then the Autocam Plaintiffs, which have 682 employees in the United States and 1,500 world-wide would become liable for fines in excess of twenty-four million dollars ($24,000,000), effectively crippling the Plaintiffs' business.
42. The Autocam Plaintiffs' insurance plans are not considered "grandfathered" due to unrelated changes made on January 1, 2011.
43. The Autocam Plaintiffs' insurance is not subject to any "safe harbor" provision. 44. Due to the Mandate, Plaintiffs will no longer be allowed to exclude objectionable drugs and services from their benefits plan—and will be forced to provide and pay for these services that violate their religious beliefs. 45. The Autocam Plaintiffs' next plan year starts January 1,2013. 46. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith. The Affordable Care Act 47. The Affordable Care Act regulates the national health insurance market by directly regulating "group health plans" and "health insurance issuers." The Affordable Care Act does not apply equally to all insurers or to all individuals. 48. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H). 49. Plaintiffs Autocam employ well over 50 full-time employees in Michigan alone and must provide federal government-approved health insurance under the Affordable Care Act or pay

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substantial per-employee fines. 50. Certain provisions of the Affordable Care Act do not apply equally to members of
certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of "health care sharing ministry" that meets certain criteria).
51. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, sterilization, abortion, and abortifacients.
52. The Affordable Care Act's preventive care requirements do not apply to employers who provide so-called "grandfathered" health care plans. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
53. Plaintiffs' current insurance plans do not qualify as "grandfathered" health care plans, and are considered "non-grandfathered." Furthermore, Plaintiffs do not qualify for the "religious employer" exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B). Since the 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 the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
54. Plaintiffs are subject to the Mandate now and must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or paying ruinous fines that would have a crippling impact on their ability to survive economically.
55. Plaintiffs are confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves from the health insurance market in its entirety—endangering the health and economic stability of Autocam, its employees, and

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its employees' families. Indeed, Plaintiffs' current analysis indicates that about half of their employees will become exposed to a premium of sixteen thousand dollars ($16,000) and made liable for up to twelve thousand dollars ($12,000) in costs per year. Other employees will become exposed to a penalty between six-hundred and ninety-five dollars ($695) and over two thousand dollars ($2,000) per year or 2.5% of income (whichever is higher), banking on their ability to purchase coverage after an incident. Plaintiffs must make this decision by November 1, 2012 in order to be able to roll it out to employees on January 1, 2013 so as to comply with federal deadlines relating to plan changes.
56. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others—such as the Plaintiffs—have not.
57. The Affordable Care Act creates a system of individualized exemptions. Under the Affordable Care Act, the United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers ("HHS waivers") to employers and other health insurance plan issuers. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. Upon information and belief, more than a thousand HHS waivers have been granted. The "Preventive Care" Mandate
58. A provision of the Affordable Care Act mandates that health plans "provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported

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by the Health Resources and Services Administration" and directs the Secretary of United States Department of Health and Human Services to determine what would constitute "preventative care" under the mandate. 42 U.S.C § 300gg-l3(a)(4).

59. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).

60. On February 15, 2012, the United States Department of Health and Human Services promulgated a Mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012. See 45 CFR § 147.130 (a)(l)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration ("HRSA") Guidelines, (http://www.hrsa.gov/womensguidelines).

61. Act.

The Mandate was enacted pursuant to statutory authority under the Affordable Care

62. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the "Plan B," known as the "morning-after pill," and "ella," known as the "week-after pill," which operate in a manner similar to the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).

63. The Mandate's reach seeks to control the decisions of employers, individuals, and also the decisions of all insurance issuers. See 42 USC § 300gg-13 (a)(l),(4). All insurance issuers are mandated to include contraception, sterilization, abortion, and abortifacients such as the

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"moming-after pill," "Plan B," and "ella" in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012.
64. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan that includes what HHS deemed "preventative care." All individuals and employers will be stripped of their choice not to pay for the "preventative care," regardless of whether paying for such "services" violates one's conscience or deeply held religious beliefs.
65. The Mandate reaches even further than the Affordable Care Act to eliminate all employers and individuals from selecting a health insurance plan in which the insurance issuers do not automatically provide contraception, sterilization, abortion, and abortifacients.
66. Prior to promulgating the Mandate, HHS accepted public comments to the 2010 interim final regulations from July 19, 2010 to September 17, 2010. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services, including contraception, including abortifacient contraception, and sterilization..
67. HHS directed a private health policy organization, the IOM, to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventative care for women. (http://www.hrsa.gov/womensguidelines). In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These groups were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women's Law Center, National Women's Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum. A l l of these groups are notorious supporters of abortion, contraception, including abortifacient contraception, and sterilization.

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68. No groups that oppose government-mandated coverage of contraception, sterilization, abortifacients, abortion, and related education and counseling were among the invited presenters.
69. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include "All Food and Drug Administration approved contraceptive methods." (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011))
70. Preventative services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the "morning-after pill"; and ulipristal, also known as "ella" or the "week-after pill"; and other drugs, devices, and procedures.
71. Plan B and "ella" can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an "abortion" as that term is used in federal law and Catholic teaching. Consequently, Plan B and "ella" are abortifacients.
72. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, FIHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full and promulgated the Mandate. The Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
73. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity relating to drugs and services connected with abortion, contraception, including abortifacient contraception, and sterilization.

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74. The Mandate went into effect immediately as an interim final rule. 75. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 76. When it issued the Mandate, HHS requested comments from the public by September 30 and indicated that comments would be available online. Upon information and belief, over 100,000 comments were submitted against the Mandate. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that "we are in a war." She did not state whom she and NARAL Pro-Choice America were warring against. 77. During a congressional hearing on April 26, 2012, Defendant Sebelius admitted that she is totally unfamiliar with the United States Supreme Court religious freedom cases. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom. 78. The Mandate fails to take into account the statutory and constitutional conscience rights of individuals who own and operate for-profit companies but dictates that such individuals must check their religious convictions at the door of the workplace, an approach that is inimical to the great tradition of religious liberty at the heart of the American experiment in self-government. 79. The Mandate requires that Plaintiffs assist, provide, and fund coverage for contraception, including abortifacient contraception, sterilization, and related education and counseling against their conscience in a manner that is contrary to law. 80. The Mandate pressures Plaintiffs to change or violate their religious beliefs or suffer

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adverse consequences in terms of fines or disadvantages that undermine its ability to conduct business on competitive terms with regard to recruitment and retention of competent employees.
81. The Mandate places the Autocam Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees and members.
82. The Mandate forces Plaintiffs to provide, fund, and assist its employees and plan participants in the purchase of drugs and services, including counseling, relating to use of contraception, including abortifacient drugs, and drugs, services, and sterilization in violation of Plaintiffs' religious beliefs that doing so is gravely immoral and sinful.
83. Plaintiffs sincerely believe that i f they comply with the mandate they will be guilty of material cooperation of evil, which constitutes a mortal sin that subjects them to eternal damnation. Put another way, Plaintiffs sincerely believe that compliance with the Mandate will deprive them of their ability to share eternal salvation.
84. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and "ella" since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
85. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion. Plaintiffs believe that Plan B and "ella" can cause the death of the embryo, which is a person. Plan B can prevent the implantation of a human embryo in the wall of the uterus. "Ella" can prevent the implantation of a human embryo in the wall of the uterus. Plan B and "ella" can cause the death of the embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an "abortion" as that term is used in federal law. The use of artificial means to cause the death of a human embryo constitutes an "abortion" as that term is used in federal law.

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86. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and "ella," free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. The Mandate further forces Plaintiffs to fund education and counseling concerning contraception, sterilization, abortifacients, and abortion that directly conflicts with Plaintiffs' religious beliefs and teachings.
87. Plaintiffs cannot cease providing its employees with health insurance coverage without violating their sincere religious conviction that they should take all reasonable steps to support the health and well-being of their employees and their families, particularly given the Plaintiffs knowledge that their employees would be unable to attain similar coverage in the market as it now exists.
88. The Mandate forces Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
89. The Mandate forces Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
90. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money. The Narrow Discretionary Religious Exemption
91. The Mandate indicates that the HRSA "may" grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
92. The Mandate allows HRSA to grant exemptions for "religious employers" who "meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the

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organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R. § 147.130(a)(iv)(B).
93. The Mandate imposes no constraint on HRSA's discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate's definition of "religious employers." HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
94. Although Plaintiffs run their company in a manner consistent with their religious convictions, they are not a religious employer as defined by the law.
95. Plaintiffs have confirmed that they will be subject to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to them.
96. It is inevitable given the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by directly providing, funding, and/or allowing its members to engage in disseminating information and guidance about where to obtain sterilization, contraception, abortion, or abortifacient services. The Mandate's Illegality
97. The Mandate issued by the Defendants does not accommodate the Plaintiffs' religious beliefs, which are longstanding religious convictions shared by millions of other Americans.
98. The Mandate not only forces Plaintiffs to finance contraception, abortifacients, abortion, sterilization, and related education and counseling, but also subverts the expression of Plaintiffs' religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire and use drugs and services which Plaintiffs believe

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involve gravely immoral practices, including the destruction of innocent human life. 99. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply held
religious beliefs under threat of directly violating their consciences, in addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one's religion or controlling one's own speech substantially burdens Plaintiffs' religious liberty and freedom of speech under the First Amendment.
100. Complying with the Mandate requires a direct violation of the Plaintiffs' religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining not only contraception and sterilization but also abortion, because certain drugs and devices such as "Plan B," and "ella" come within the Mandate's and Health Resources and Services Administration's definition of "Food and Drug Administration-approved contraceptive methods" despite their known abortifacient mechanisms of action.
101. The Defendants' refusal to accommodate the conscience of the Plaintiffs, and of other Americans who share the Plaintiffs' religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover "preventative services" (e.g., the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
102. Although the Defendants have granted waivers to those whose requests they believe are "legitimate" no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are immoral and gravely sinful. Defendants' plan fails

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to give the same level of weight or accommodation to the exercise of one's fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
103. The Defendants' actions violate Plaintiffs' right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
104. The Defendants' actions also violate Plaintiffs' right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
105. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
106. Had Plaintiffs' religious beliefs, or the beliefs of the million other Americans who share Plaintiffs' religious beliefs been obscure or unknown, the Defendants' actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs, and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack.
CLAIMS
COUNT I (Violation of the First Amendment to the United States Constitution - Free Exercise Clause)
107. Plaintiffs incorporate by reference all preceding paragraphs.

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108. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage for contraception, abortion, sterilization, and related education and counseling either directly or through entities that they own, operate, and control. Plaintiffs' compliance with these beliefs is a religious exercise.
109. Neither the Affordable Care Act nor the Mandate is neutral. 110. Neither the Affordable Care Act nor the Mandate is generally applicable. 111. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 112. The Mandate furthers no compelling governmental interest. 113. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 114. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 115. The Mandate chills Plaintiffs' religious exercise. 116. The Mandate exposes Plaintiffs Autocam to substantial fines for their religious exercise and, accordingly, imposes a substantial cost on their owners and operators for their religious exercise. 117. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to purchase or provide health care insurance without violating their religious beliefs. 118. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 119. The Mandate is not narrowly tailored to any compelling governmental interest. 120. The Mandate and Defendants' threatened enforcement of the Mandate violate Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment to the United

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States Constitution. 121. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been
and will continue to be harmed. COUNT II
(Violations of the first Amendment to the United States Constitution - Free Exercise Clause) 122. Plaintiffs incorporate by reference all preceding paragraphs. 123. Plaintiffs' sincerely held religious beliefs prohibit them or a business under their
ownership or control from voluntarily and knowingly purchasing or providing coverage for contraception, sterilization, abortifacients, abortion, and related education and counseling. Plaintiffs' compliance with these beliefs is a religious exercise.
124. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs.
125. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
126. The Mandate and Defendants' threatened enforcement of the Mandate thus violate Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
127. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III (Violation of the First Amendment to the United States Constitution - Free Exercise
Clause) 128. Plaintiffs incorporate by reference all preceding paragraphs. 129. By design, Defendants imposed the Mandate on some religious organizations or

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religious individuals but not on others, resulting in discrimination among religions. 130. The Mandate vests HRSA with unbridled discretion in deciding whether to allow
exemptions to some, all, or no organizations meeting the definition of "religious employers." 131. The Mandate vests HRSA with unbridled discretion in deciding whether to allow
exemptions to some, all, or no religious individuals. 132. The Mandate and Defendants' threatened enforcement of the Mandate thus violate
Plaintiffs' rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
133. 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 - Establishment Clause)
134. Plaintiffs incorporate by reference all preceding paragraphs. 135. By design, defendants imposed the Mandate on some organizations and individuals but not on others, resulting in a selective burden on Plaintiffs. 136. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of "religious employers." 137. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals. 138. The Mandate and Defendants' threatened enforcement of the Mandate therefore violates Plaintiffs' rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 139. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.

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COUNT V (Violation of the First Amendment to the United States Constitution - Freedom of Speech)
140. Plaintiffs incorporate by reference all preceding paragraphs. 141. Plaintiffs profess that contraception, sterilization, abortion, and abortifacients violate their religious beliefs. 142. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess are violations of the Plaintiffs' religious beliefs. 143. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients. 144. Defendants' actions thus violate Plaintiffs' right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 145. The Mandate's compelled speech requirement is not narrowly tailored to a compelling governmental interest. 146. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI (Violation of the First Amendment to the United States Constitution - Expressive Association)
147. Plaintiffs incorporate by reference all preceding paragraphs. 148. Plaintiffs support, contribute to, and affiliate with other individuals and organizations for that share a religious objection to contraception, sterilization, abortion, and abortifacients. 149. The Mandate would compel Plaintiffs to subsidize activities that are violations of Plaintiffs' religious beliefs. 150. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients.

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151. Defendants' actions thus violate Plaintiffs' right of expressive association as secured to by the First Amendment of the United States Constitution.
152. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
C O U N T vn
(Violation of the First Amendment to the United States Constitution - Free Exercise Clause and Freedom of Speech)
153. Plaintiffs incorporate by reference all preceding paragraphs. 154. By stating that FTRSA "may" grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated. See 26 U.S.C. § 5000A(d)(2)(a)(i)-(ii). 155. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit, secular employers such as Plaintiffs Autocam. As such, Plaintiffs Autocam and its owners and operators are subject to the unbridled discretion of HRSA to determine whether it would be exempt. 156. Defendants' actions therefore violate Plaintiffs' right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 157. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII (Violation of the Religious Freedom Restoration Act) 158. Plaintiffs incorporate by reference all preceding paragraphs. 159. Plaintiffs' sincerely held religious beliefs prohibit them from providing or purchasing coverage for contraception, sterilization, abortion, abortifacients, and related education and

Case 1:12-cv-01096-RJJ Doc #1 Filed 10/08/12 Page 26 of 31 Page ID#26
counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 160. The Mandate creates government-imposed coercive pressure on Plaintiffs to change
or violate their religious beliefs. 161. The Mandate chills Plaintiffs' religious exercise. 162. The Mandate exposes Plaintiffs Autocam to substantial fines for their religious
exercise and the religious exercise of their owners, thus causing financial injury to their owners. 163. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 164. The Mandate furthers no compelling governmental interest. 165. The Mandate is not narrowly tailored to any compelling governmental interest. 166. The Mandate is not the least restrictive means of furthering Defendants' stated
interests. 167. The Mandate and Defendants' threatened enforcement of the Mandate violate
Plaintiffs' rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 168. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been
and will continue to be harmed. COUNT IX
(Violation of the Administrative Procedure Act) 169. Plaintiffs incorporate by reference all preceding paragraphs. 170. Defendants' stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute "good cause." 171. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful "consideration of the relevant matter presented." Defendants did not consider or respond to the

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voluminous comments they received in opposition to the interim final rule. 172. Therefore, Defendants have taken agency action not in observance with procedures
required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 173. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and
will continue to be harmed. COUNT X
(Violation of the Administrative Procedure Act) 174. Plaintiffs incorporate by reference all preceding paragraphs. 175. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar companies and individuals. 176. Defendants' explanation for its decision not to exempt Plaintiffs and similar employers and individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 177. Thus, Defendants' issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and because they do not take into consideration the evidence against them. 178. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XI (Violation of the Administrative Procedure Act) 179. Plaintiffs incorporate by reference all preceding paragraphs. 180. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008).

Case 1:12-cv-01096-RJJ Doc #1 Filed 10/08/12 Page 28 of 31 Page ID#28
181. The Weldon Amendment provides that "[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . . . i f such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
182. The Mandate requires issuers, employers, and individuals, including Plaintiffs to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
183. Some FDA-approved contraceptives cause abortions. 184. As set forth above, the Mandate violates RFRA and the First Amendment. 185. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 186. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII (Violation of the Administrative Procedure Act) 187. Plaintiffs incorporate by reference all preceding paragraphs. 188. The Mandate is contrary to the provisions of the Affordable Care Act. 189. Section 1303(b)(1)(A) of the Affordable Care Act states that "nothing in this title"— i.e., title I of the Act, which includes the provision dealing with "preventive services"—"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." 190. Section 1303 further states that it is "the issuer" of a plan that "shall determine whether or not the plan provides coverage" of abortion services.

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191. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
192. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs' insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives.
193. Some FDA-approved contraceptives cause abortions. 194. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 195. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, the Plaintiffs request that this honorable Court:
a. Declare that the Mandate and Defendants' enforcement of the Mandate against Plaintiffs violates the First Amendment to the United States Constitution;
b. Declare that the Mandate and Defendants' enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act.
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiffs and other religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, sterilization, abortion, abortifacients, and related education and counseling;
e. Award Plaintiffs the costs of this action and reasonable attorney's fees; and

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f. Award such other and further relief as it deems equitable and just.

Respectfully submitted,
MILLER JOHNSON
Counsel for Plaintiffs

Dated: October 8, 2012

/s/ Jason C. Miller Jason C. Miller (P#76236) MILLER JOHNSON Attorneys for Plaintiffs 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 Telephone: (616) 831-1700

Patrick T. Gillen (P#47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu
Thomas Brejcha* Peter Breen* Thomas More Society Attorneys for Plaintiffs 29 South LaSalle St. - Suite 440 Chicago, IL 60603 Tel. 312-782-1680 tbrejcha@thomasmoresociety.org pbreen@thomasmoresociety.org *Application for admission to be filed.

Case 1:12-cv-01096-RJJ Doc #1 Filed 10/08/12 Page 31 of 31 Page ID#31

VERIFICATION

COUNTY OF KENT

)

) ss

STATE OF MICHIGAN }

Porsuaat to 28 U.S.C. §1746 I declare under peaalt}'' of perjwy of the laws of the United States

that the-factual statements set forth above are true api-accurate to the best of-my knowledge,

infomiation, and belief.

;

John K e n n : : . 'hsii -Idually and on behalf of Autocam Corporation and A.Mcaw Medical. LLC

 
 Case 1:12-cv-01096-RJJ Doc #12 Filed 10/12/12 Page 1 of 3 Page ID#87

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al.,

Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

CASE NO. 1:12-CV-1096 HON. ROBERT J. JONKER

Defendants. __________________________________/

ORDER

This matter is before the Court on the portion of Plaintiffs’ Motion for Preliminary Injunction

(docket # 8) that seeks expedited consideration. The Court has carefully reviewed the record and

does not find good cause for expedited consideration. Plaintiffs filed their action on October 8,

2012, and their Motion for Preliminary Injunction two days later. Plaintiffs say they need to know

by November 1, 2012, whether the Court will enjoin enforcement of federal regulations affecting

group health plan coverages before the new plan year effective January 1, 2013. Granting expedited

consideration would require the parties and the Court to set aside already scheduled commitments

in other cases, assimilate significant factual information, engage in analysis of complicated and still

emerging legal issues, conduct a hearing – possibly evidentiary – and issue a decision in less time

than the Local Rules ordinarily provide for the first response brief. Plaintiffs have not established

good cause for that kind of expedited consideration in this case, and so the Court denies the request

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for expediting and intends to handle the pending motion on the normal timeline provided in the Local Rules for motions seeking injunctive relief.
In this case, the showing of good cause for expediting falters on two points. First, the November 1, 2012 deadline is driven primarily by Plaintiffs’ desire to have time to work with its insurance carriers so that health plans can be ready to launch by January 1, 2013. Of course, nothing in the challenged regulation requires action or inaction by November 1; rather, it is simply Plaintiffs’ apparent estimate of lead time it would like to have before the January 1, 2013 regulatory deadline. Moreover, the November 1 deadline is not supported by affidavit, declaration, or other evidence; it is simply the assertion of Plaintiffs’ counsel. The desire of Plaintiffs’ counsel to give Plaintiffs time to consult with their insurance provider is not enough to support a request for expediting that imposes on the convenience and ordinary process of the Court and other litigants. The Court also expects that the Plaintiffs can and will work with their insurance provider to prepare for all reasonable contingencies, as good businesspeople routinely do.
Second, even assuming November 1, 2012, were a hard regulatory deadline totally outside of Plaintiffs’ control and convenience, there would not be good cause for expediting in this case. That is because Plaintiffs could have brought their challenge sufficiently in advance of their desired deadline of November 1, 2012, to provide for decision-making on the normal timetable of the Court. The regulations giving rise to this case issued in interim form with request for comment on July 19, 2010, over two years ago. 75 Fed. Reg. 41726. Amended interim final regulations with request for comment issued August 3, 2011, over one year ago. 76 Fed. Reg. 46621. Final rules issued on February 15, 2012 and took effect on April 16, 2012. 77 Fed. Reg. 8725. The Federal Register notice makes it plain that the very issues now joined in litigation were part of the comment process.
2

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Id. Moreover, there has been considerable litigation on the topic (at least from non-profit organizations) since as early as 2011. Even assuming it was reasonable to wait for the Supreme Court decision as to the overall constitutionality of the Affordable Care Act, there remained ample time to file so that the parties and the Court would have time to consider the issues before the Plaintiffs’ asserted deadline of November 1, 2012. Expedited consideration is not for parties that create the need for prompt action by delaying a filing that could reasonably have been brought earlier.
For these reasons, the Court finds that Plaintiffs have failed to establish good cause for expedited consideration. The deadlines the Local Rules establish for motions seeking injunctive relief remain in effect.
ACCORDINGLY, IT IS ORDERED: 1. Plaintiffs’ Request for Expedited Consideration of Motion for Preliminary Injunction
(docket # 8) is DENIED. 2. Defendants’ Motion for Status Conference to discuss expediting (docket # 10) is
DISMISSED AS MOOT.

Dated: October 12, 2012

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

3

 
 Case 1:12-cv-01096-RJJ Doc #42 Filed 12/24/12 Page 1 of 21 Page ID#739

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al.,

Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

CASE NO. 1:12-CV-1096 HON. ROBERT J. JONKER

Defendants. __________________________________/

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction (docket # 8).

The Court heard oral argument on the motion on December 17, 2012 and gave the parties the

opportunity to file supplemental briefing. The motions are fully briefed. The Court also accepted

amicus briefs from the American Civil Liberties Union Fund of Michigan; the Attorney General of

the State of Michigan; the Life Legal Defense Foundation; and the Bioethics Defense Fund. The

Court has thoroughly reviewed the record and carefully considered the applicable law. The motion

is ready for decision.

Background

Plaintiff Autocam Corporation (“Autocam”) is a Michigan corporation, and Plaintiff

Autocam Medical (Autocam Medical) is a Michigan limited liability company (collectively, the

“Autocam Plaintiffs”). (Verified Compl., docket # 1, at ¶¶ 14-15.) Plaintiff John Kennedy is the

president and chief executive officer of Autocam and an owner of Autocam. (Id. at ¶ 17.) Plaintiffs

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Margaret Kennedy, Thomas Kennedy, John Kennedy IV, and Paul Kennedy are also owners of Autocam. (Id. at ¶¶ 18-21.) The Kennedy Plaintiffs own and control the Autocam Plaintiffs. (Id. at ¶ 22.) Plaintiffs bring this suit against the United States Departments of Health and Human Services, Treasury, and Labor, and the Secretaries of each of those agencies. (Id. at ¶¶ 25-30.)
The Autocam Plaintiffs are for-profit business entities. (Id. at ¶ 33.) They employ approximately 661 employees in the United States. (Id. at ¶ 16.) They are self-insured and provide health insurance to their full-time employees via a benefits plan (the “Plan”) they administer jointly. (Id. at ¶ 34.) Autocam’s Plan is designed so that the employee is not charged a premium, and Autocam gives each of its insured employees up to fifteen hundred dollars for a health savings account each year. (Id. at ¶ 36; Plaintiffs’ Reply, docket # 24, at 13.) The Kennedy Plaintiffs “are adherents of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church.” (Verified Compl., docket # 1, ¶ 31.) According to Plaintiffs, Catholic “teachings prohibit the Plaintiffs from participating in, paying for, training others to engage in, or otherwise cooperating in the practice of contraception, including abortifacient contraception, and sterilization.” (Id.) The Autocam Plaintiffs’ Plan is designed “to exclude contraception, including abortifacient contraception, sterilization, and counseling relating to the same ... because Plaintiffs seek to do business in a manner fully consistent with their religious convictions.” (Id. at ¶ 39.)
Plaintiffs challenge the application of regulations issued under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act” or “ACA”). The ACA explicitly provides that:
2

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[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall at a minimum provide coverage for and shall not impose any cost-sharing requirements for ... (4) with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.

42 U.S.C. § 300gg - 13(a)(4). The Health Resources and Services Administration (“HRSA”), a sub-

agency of the Department of Health and Human Services (“HHS”), requested that the Institute of

Medicine (“IOM”) recommend guidelines. The IOM did so, recommending, among other things,

that health care plans cover, without cost-sharing, “[a]ll Food and Drug Administration approved

contraceptive methods, sterilization procedures, and patient education and counseling for all women

with reproductive capacity.”

See

http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited December 18,

2012). Contraceptive methods approved by the FDA include, without limitation, diaphragms, oral

contraceptives, intra-uterine devices, and emergency contraceptives such as Levonorgestrel

(sometimes called the “morning after pill”) and ulipristal acetate (sometimes called the “week after

pill”).

See FDA Birth Control Guide, available at

http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited December 18,

2012). On August 1, 2011, HRSA adopted the IOM recommendations, subject to an exemption for

certain religious employers. 76 Fed. Reg. 46621 (August 3, 2011); 45 C.F.R. § 147.130.

On February 15, 2012, HHS, the Department of the Treasury (“Treasury”), and the

Department of Labor (“DOL”) published final rules memorializing the HRSA guidelines. 77 Fed.

Reg. 8725 (February 15, 2012). The rules require all non-exempt, non-grandfathered health care

plans to provide the coverage the guidelines describe for plan years beginning on or after August 1,

3

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2012. Employers with fewer than 50 employees are not required to provide any health insurance plan. 26 U.S.C. § 4980H(c)(2)(A). The rules also exempt some religious employers from providing plans that cover contraceptive services. To qualify as an exempt religious employer, an employer must satisfy the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs people who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a non-profit organization as described in section 6033 (a)(1) and section 6033(a)(3)(A)(I) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(1)(iv)(B); 76 Fed. Reg. 46621-01, 46623. There is also a temporary safe harbor for non-profit organizations that do not qualify for any other exemption and “do not provide some or all of the contraceptive care otherwise required, consistent with any applicable State law, because of the religious beliefs of the organization.” 77 Fed. Reg. 8725 (Feb. 15, 2012). While the safe harbor is in effect, the government “will work with stakeholders to develop alternative ways of providing contraception coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. A grandfathered plan is a plan in existence on March 23, 2010, that has not undergone a defined set of changes. 26 C.F.R. § 54-9815-1251T; 29 C.F.R. § 2950.715-1251; 45 C.F.R. § 147.240. It is undisputed that the Autocam Plaintiffs’ Plan is neither exempt nor grandfathered. The governing regulations therefore require the Autocam Plaintiffs to provide their employees a health care plan that includes contraceptive services coverage. Non-exempt, non-grandfathered employers that do not provide the required coverage face financial consequences -- whether characterized as fines, taxes, or penalties -- and other potential enforcement actions for failure to comply. See 29
4

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U.S.C. § 1132(a) (providing for civil enforcement by the Department of Labor and insurance plan participants); 26 U.S.C. § 4980D (providing for a tax of $100 per day per employee for failure to comply with ACA coverage provisions, subject to caps for certain failures); 26 U.S.C. § 4980H (annual tax assessment for failure to comply with ACA coverage requirement). Autocam’s new Plan year begins on January 1, 2013. (Verified Compl., docket # 1, at ¶ 45.) The immediate enforcement risk, in Plaintiffs’ view, is the tax or penalty imposed under 26 U.S.C. § 4980D for plans that do not include the contraceptive coverage.
Plaintiffs claim that the contraceptive coverage requirement “effectively strips ... their ability to provide employee benefits in a manner that is consistent with their sincerely held religious convictions.” (Id. at ¶ 41.) They state that religious convictions preclude Autocam from complying with the contraceptive coverage requirement. (Kennedy aff., docket # 36-1, ¶ 5.) They note that the “actual expense for Autocam to comply with the HHS Mandate would be approximately $100,000 per year.” (Id.) Plaintiffs estimate that the “penalty [or tax under section 4980D] for failure to comply ... is approximately $19,000,000 per year based on the employees now covered by the [P]lan.” (Id.) Plaintiffs contend that they face a stark dilemma: either comply with the contraceptive coverage requirement, and violate their religious convictions, or refuse to comply, and face ruinous penalties. (Verified Compl., docket # 1, ¶ 54.) Plaintiffs recognize they could alternatively choose not to offer any group plan at all. This might trigger a shared responsibility payment under 26 U.S.C. § 4980H, but Plaintiffs have not claimed that any such payment obligation would be ruinous.
In this lawsuit, Plaintiffs challenge the contraceptive coverage requirement on several grounds, asserting that the requirement violates the First Amendment of the Constitution, the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq.
5

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(“RFRA”), and the Administrative Procedures Act, 60 Stat. 237, 5 U.S.C. § 1001, et seq. (Verified Compl., docket # 1, at ¶¶ 107 - 195.) Plaintiffs now seek a preliminary injunction that would stay the application of the contraceptive coverage requirements to them during the pendency of this case. (Mot. for Prelim. Inj., docket # 8.) Plaintiffs premise their motion for preliminary injunction on their claims that the requirement violates RFRA and their rights of free exercise and freedom of speech under the First Amendment.
Legal Standard A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). A movant seeking a preliminary injunction must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities favors the movant; and (4) that the requested preliminary injunction is in the public interest. Id. at 20. “[T]he proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). 1. Likelihood of Success on the Merits A threshold question is whether the Autocam Plaintiffs, which are self-described secular, forprofit business organizations, have any right to free exercise of religion under the First Amendment or RFRA. The law is not settled on this question. While corporations have some constitutional rights, such as the right to freedom of speech, see Citizens United v. Fed. Election Com’n, 558 U.S. 310 (2010), the constitutional rights of corporations and individuals are not necessarily coextensive. Courts have found repeatedly that religious organizations have free exercise rights. See, e.g.,
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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694, 706 (2012). But Plaintiffs have not identified any authority, and the Court has not found authority independently, for the proposition that a secular, for-profit corporation has a First Amendment right of free exercise of religion. RFRA is a somewhat different matter, however, because Congress has applied the protection of the act to “person[s],” not simply individuals. This suggests a Congressional intention to apply RFRA’s protection to entities as well as individuals. See 1 U.S.C. § 1. Even so, it still leaves open the question of exactly how a for-profit corporation engages in the “exercise of religion,” or for such a corporation to experience a substantial burden on it. A corporation cannot, for example, attend worship services or otherwise participate in the sacraments and rites of the church, as individuals do. But ultimately the Court does not find it necessary to resolve the threshold question because even assuming the Autocam Plaintiffs have free exercise rights under the Constitution and RFRA, Plaintiffs are still unlikely to succeed on the merits of either claim. Cf. Hobby Lobby Stores, Inc. V. Sebelius, No. 12-6294, Order at 6 n.4 (10th Cir. Dec. 20, 2012 (sustaining district court’s denial of preliminary injunction against the contraception mandate without resolving this threshold issue).
A. Free Exercise Clause of the First Amendment The Free Exercise Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const., Amdt. 1. “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 877 (1990). The exercise of religion “often involves not only belief and
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profession but the performance of (or abstention from) physical acts,” such as, for example, participating in sacraments and abstaining from particular foods or modes of transportation. Id. If the government were to ban such religious practices “only when they are engaged in for religious reasons, or only because of the religious belief that they display,” the government would most likely be prohibiting the free exercise of religion, in violation of the Constitution. Id. However, for First Amendment purposes, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id. (quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982)(Stevens, J., concurring in judgment)).
According to Plaintiffs, the ACA’s contraceptive coverage requirement impinges upon their exercise of religion because it requires them to violate their religious principles or face substantial consequences. Under Smith, Plaintiffs’ claim based on the Free Exercise Clause of the First Amendment is almost sure to fail. The ACA’s contraceptive coverage requirement is neutral and generally applicable. It does not target a particular religion or religious practice or have as its objective the interference with a particular religion or religious practice. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (“[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.”). The ACA contraception coverage requirement applies to all non-exempt, non-grandfathered plans. To the extent the contraceptive coverage requirement restricts Plaintiffs’ exercise of religion, it does so incidentally. As in Smith, because the law does not “represent[] an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs,”
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Plaintiffs’ conscientious objection to the coverage requirement does not relieve Plaintiffs from their duty to comply with the law. Smith, 494 U.S. at 882.
Plaintiffs argue that the ACA does not apply generally, noting that exemptions exist for certain religious organizations as well as some other secular employers. That categorical exemptions exist does not mean that the law does not apply generally, however. See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (finding social security tax requirements generally applicable despite existence of categorical exemptions). The law applies to all non-grandfathered, non-exempt plans, regardless of employers’ religious persuasions, and this is enough to create a neutral law of general application.
For these reasons, Plaintiffs have little likelihood of success on their Free Exercise Clause Claim.
B. Religious Freedom Restoration Act Congress responded to the Smith decision by enacting RFRA, which adopted a statutory rule similar to the rule Smith rejected. “Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). The statute does, however, permit rules that substantially burden the exercise of religion if the government demonstrates “that application of the burden to the person - (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). Thus, under RFRA, strict scrutiny applies to federal statutes that substantially burden a person’s exercise of religion.
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The particular burden Plaintiffs describe is the requirement that the Autocam Plaintiffs provide a health insurance plan that includes the contraceptive coverage the ACA requires. The Court is not persuaded that Plaintiffs are likely to prevail on their claim that this is a substantial burden on the Plaintiffs in this case. “[A] ‘substantial burden’ is a difficult threshold to cross,” Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 736. (6th Cir., Dec. 10, 2007), and Plaintiffs are unlikely to cross it. There is certainly no significant financial burden on the Autocam Plaintiffs, as even the Plaintiffs agree the cost of compliance is only about $100,000. Moreover, the requirement differs little in substance from Autocam’s current practice of providing undesignated cash that employees are free to apply to uncovered health expenses – including contraception – of their choosing. In particular, the Autocam Plaintiffs already give each employee up to $1500 for a health savings account. Plaintiffs themselves point out that “Autocam’s plan permit[s] employees to make their own decisions on contraception – they just need to pay for it out of the health savings dollars held in their own name rather than requiring Autocam to cut the check directly for the service.” (Pls.’ Reply, docket # 24, at 13.) Mr. Kennedy explains that Plaintiffs do not seek to control what an employee or his or her dependents do with the wages and healthcare dollars we provide. Our employees are free to make decisions with their money – including the funds in their personal health savings account – that we do not agree with.” (Kennedy aff., docket # 36-2, at § 7.)
Implementing the challenged mandate will keep the locus of decision-making in exactly the same place: namely, with each employee, and not the Autocam plaintiffs. It will also involve the same economic exchange at the corporate level: employees will earn a wage or benefit with their labor, and money originating from the Autocam Plaintiffs will pay for it. The Plaintiffs nevertheless
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want to draw a line between the moral culpability of paying directly for contraceptive services their employees choose, and of paying indirectly for the same services through wages or health savings accounts. According to Plaintiff Kennedy: “Because our plan does not pay for the drugs and services that we object to, we are not engaging in material cooperation with evil.” (Id.) The Court does not doubt the sincerity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to assess whether the claimed burden–no matter how sincerely felt--really amounts to a substantial burden on a person’s exercise of religion. On the surface there certainly appears to be virtually no functional difference: in both situations, the Autocam Plaintiffs are responsible to pay wages or benefits that their employees earn; and in neither situation do the wages and benefits earned pay–directly or indirectly–for contraception products and services unless an employee makes an entirely independent decision to purchase them. The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.1
A similar analysis applies to the Kennedy Plaintiffs, but the application of the contraceptive coverage requirement to the Kennedy Plaintiffs is even more removed. Standing between the Kennedy Plaintiffs and the decisions some Autocam employees make to procure contraceptive services are not only the independent decisions of an employee and the employee’s health care
1If the Plaintiffs are more comfortable religiously and morally with more layers of insulation between the wages and benefits earned, on the one hand, and an employee’s decision to acquire contraceptives with them, Plaintiffs have the option of restructuring from a self-insured plan to an insured plan. Cf. Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D. Okla. 2012) (denying preliminary injunction against the contraception mandate in a challenge from an insured health plan), aff’d, Order, Case No. 12-6294 (10th Cir. Dec. 20, 2012). This would further attenuate the claimed burden.
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provider, but also the corporate form itself. The ability to operate in a corporate form has tax and liability consequences that promote aggregation of capital and productive enterprise. United States v. Bestfoods, 524 U.S. 51, 61 (1998). As corporate owners, the Kennedy Plaintiffs quite properly enjoy the protections and benefits of the corporate form. But the legal separation of the owners from the corporate enterprise itself also has implications at the enterprise level. A corporate form brings obligations as well as benefits. “When followers of a particular sect enter into commercial activities as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee, 455 U.S. at 261. Whatever the ultimate limits of this principle may be, at a minimum it means the corporation is not the alter ego of its owners for purposes of religious belief and exercise.
Any burden on the Kennedy Plaintiffs’ free exercise caused by regulation on the corporation they own is probably too attenuated to be substantial. The mandate does not compel the Kennedys as individuals to do anything. They do not have to use or buy contraceptives for themselves or anyone else. It is only the legally separate entities they currently own that have any obligation under the mandate. The law protects that separation between the corporation and its owners for many worthwhile purposes. Neither the law nor equity can ignore the separation when assessing claimed burdens on the individual owners’ free exercise of religion caused by requirements imposed on the corporate entities they own.
Finally, the implications of the Plaintiffs’ theory are troubling in a way that further undermines their probability of success. Plaintiffs argue, in essence, that the Court cannot look beyond their sincerely held assertion of a religiously based objection to the mandate to assess whether it actually functions as a substantial burden on the exercise of religion. But if accepted, this
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theory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection. This would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief. Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms. After all, almost every governmental decision involves policy choices. And religiously inclined persons can often sincerely trace their preferred policy outcome to some religious and moral principle. In fact, this often winds up pitting sincerely religious people on opposite sides of social, economic, and political issues, each side fervently convinced of the moral and religious imperative of its position. Applying RFRA in a way that permits the disappointed side simply to opt out because it tied its opposition to a religious or moral principle would be a recipe for chaos, not a meaningful protection of religious liberty. Rather, to earn the unique protection of RFRA, the disappointed side should have to demonstrate not only that it believed in its losing position for reasons tied to religious belief, but also that the resulting regulation actually imposes a substantial burden on their ability to exercise religion. Accordingly, careful judicial attention to the “substantial burden” gateway of the statute is critical. See Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. Dec. 10, 2007).
The Court does not doubt the sincerity of the Kennedy Plaintiffs’ religious convictions. Nor is it “within the judicial function and judicial competence” to determine whether Plaintiffs have a proper interpretation of the Catholic faith. Lee, 455 U.S. at 257 (quotation marks omitted). But it remains a separate question whether the sincerely held belief amounts, in fact, to a substantial burden
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on the exercise of religion within the meaning of RFRA, and because the Court finds Plaintiffs are unlikely to establish such a substantial burden, the Court finds it unlikely that Plaintiffs will succeed on their claim under RFRA.
C. Freedom of Speech Plaintiffs have little likelihood of success on their claim that the contraceptive coverage requirement violates their First Amendment right to freedom of speech. Plaintiffs theorize that offering a health care plan that covers contraceptive services amounts to speech endorsing the use of contraceptives. This theory is not persuasive. Including contraceptive coverage in a health care plan is not inherently expressive conduct, particularly when the coverage is included to comply with a neutral, generally applicable law. Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). In Rumsfeld, the court upheld the Solomon Amendment, a statute denying federal funding to law schools that refused to permit military recruiters from gaining access to campuses or to students. The court explained that the statute “neither limits what law schools may say nor requires them to say anything,” and that under the statute, “[l]aw schools remain free ... to express whatever views they may have on the military’s congressionally mandated employment policy.” Id. at 60. The same is true of the contraceptive coverage requirement. Plaintiffs are free to say whatever they want about the requirement. Like the Solomon Amendment, the contraceptive coverage requirement “regulates conduct, not speech. It affects what [employers] must do ... not what they may or may not say.” Id. Like the Solomon Amendment, the contraceptive coverage requirement differs from cases concerning compelled-speech violations, in which the violations “resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.” Id. at 63. For example, the “expressive nature of a parade” was a key part of the
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holding in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995). Id. In contrast, there is nothing inherently expressive about health care coverage options, just as there is nothing inherently expressive about a law school’s decision to allow military recruiters on campus. Id. First Amendment protection does not extend to conduct that is not inherently expressive. Id.
Accordingly, Plaintiffs have little likelihood of success on the merits of their freedom of speech claim.
2. Likelihood of Imminent, Irreparable Harm in Absence of Injunction Plaintiffs have not shown a risk of imminent, irreparable harm in the absence of the preliminary injunction they seek. According to Plaintiffs, they face a difficult choice effective January 1, 2013, when the new Plan year begins. In particular, Plaintiffs say they must either comply in violation of religious principle or face ruinous financial risk under section 4980D. There are multiple problems with Plaintiffs’ theory that lead the Court to conclude that Plaintiffs have failed to make a convincing showing of irreparable and imminent harm. First, the immediacy of the dilemma Plaintiffs face is in no small part of their own making. The mandate they challenge roots in the HRSA decision to adopt the IOM recommendations almost 17 months ago, on August 1, 2011. Final rules promulgating the mandate issued over ten months ago, on February 15, 2012. Plaintiffs did not file this lawsuit until October 8, 2012, eight months after the final rule, nearly a year and a half after the HRSA decision, but less than two months before the deadline Plaintiffs say is critical. Equity does not favor the dilatory. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2946 (2d ed. 1995).
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Second, the dilemma Plaintiffs frame is not quite as stark as they make it appear. Plaintiffs posit only two choices: comply in violation of conscience or face ruinous financial costs under Section 4980D. But as Plaintiffs themselves recognize, they do have a third option: namely, drop all group coverage. This would subject them to some financial risk under Section 4980H, but even Plaintiffs do not contend this risk would be ruinous. Of course, the choice to eliminate all group coverage would have obvious labor relations impact, and potential adverse impact for the Autocam employees, but it is still an available pathway that avoids the stark dilemma Plaintiffs posit. As such, it undermines Plaintiffs’ efforts to show irreparable harm. Moreover, even if Plaintiffs opt to continue their current coverage without contraceptive benefits, and run the risk of larger financial consequences under Section 4980D, those consequences are not immediate and self-executing. They are imposed and collected as a tax, probably no earlier than 12 months after the tax year beginning January 1, 2013. Furthermore, the tax is by its terms subject to caps and even complete waiver in certain cases, including a failure to comply based on “reasonable cause.” 26 U.S.C. § 4980D(c)(3)(4). Plaintiffs say they are not likely to qualify for the caps or waiver, but the fact remains that Congress has capped the tax, and has also empowered the Secretary of the Treasury to waive some or all of the tax in cases due “to reasonable cause and not willful neglect.” That possibility of relief militates against a finding of irreparable harm. Cf. Barnet Aluminum Corp. v. Reilly, 927 F.2d 289 (6th Cir. 1991) (finding that post-deprivation review process saves CERCLA penalty provisions from due process challenge).
Third, the claim of irreparable harm is further undermined because it really hinges on financial impact. Preliminary injunctions normally do not issue to protect a party from monetary harm. See, e.g., Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 578-79
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(6th Cir. 2002); United States v. Michigan, 230 F.R.D. 492, 494-95 (E.D. Mich. 2005). This is because strictly financial consequences incurred during litigation can almost always be adjusted at final judgment in a way that reflects the ultimate adjudication on the merits. Id. Cf. Oklahoma Operating Co. V. Love, 252 U.S. 331, 338 (1920) (directing trial court to use the final judgment in the case to abate any penalties accrued during the litigation if the penalized party ultimately lost on the merits but had reasonable cause for maintaining its position during the litigation). Plaintiffs say the preliminary injunction is about religious liberty, and not money, but that conflates the preliminary injunction analysis with final decision on the merits. To be sure, the overall case the Plaintiffs are bringing is about religious liberty. But that is not the same thing as saying the preliminary injunction itself is about religious liberty. To the contrary, on this record, the Plaintiffs are perfectly free to continue offering their existing group coverage without honoring the contraception mandate, and therefore without violating their religious beliefs. A preliminary injunction is not necessary to protect that choice. Rather, the harm Plaintiffs seek to avoid is the risk that choosing to honor their conscience would trigger the tax under Section 4980D–a strictly financial matter. More than that, it is a financial consequence that is not likely to be finally assessed – much less paid – until after this case is resolved on the merits. If Plaintiffs win on the merits, they will not incur or pay the 4980D tax, or at worst will have a right to reimbursement of any tax they have paid under the section. A preliminary injunction is entirely beside the point in such a scenario.
But what if Plaintiffs ultimately lose on the merits? This actually leads to a fourth problem with the irreparable harm theory Plaintiffs advance. Plaintiffs believe that a preliminary injunction in their favor now will automatically insulate them from all financial risk under Section 4980D, at least until such time as they lose on the merits. The Court has considerable doubt about that. In the
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first place, Section 4980D is by its codified terms2 a tax, not a penalty. If it really is a tax – as the codified version says it is–then this Court would lack power to enjoin it, preliminarily or permanently, before its collection. 26 U.S.C. § 7421(a). But cf. Nat’l Fed. of Independent Business v. Sebelius, ___ U.S. ___, 132 S.Ct. 2566, 2582 (2012) (finding the anti-injunction act inapplicable to a financial consequence that Congress labels a penalty even when Congress chooses to place the penalty in the Internal Revenue Code). But wholly apart from this, the office of a preliminary injunction is not to adjudicate anything on a final basis; rather, the preliminary injunction functions to give a party some temporary breathing room, subject always to final adjudication. It is for that reason that a party winning a preliminary injunction normally has to post security to pay costs and damages if the party ultimately loses on the merits. FED. R. CIV. P. 65(c). In this case, if Plaintiffs won the preliminary injunction they seek, but ultimately lost on the merits, by what authority could the Court relieve them of the consequences Congress decreed? Under this scenario, Congress and the Secretary acted lawfully in adopting the contraception mandate, and it is hard to see why Plaintiffs should not then be exposed to Section 4980D (including not only the tax assessment provisions, but also the “reasonable cause” cap and exemption provisions) from January 1, 2013, just as they would without a preliminary injunction. At a minimum, automatic relief seems unlikely and inconsistent with the office of preliminary injunction.
The Court discussed these issues with counsel at the preliminary injunction hearing, and the parties have now submitted post-hearing briefs on the issue. See docket ## 40-41. Plaintiffs’ lead case is the Love decision, supra, a rate-making case. In Love, the State of Pennsylvania fixed the rate
2Plaintiffs say the originally enacted version of section 4980D describes the tax as a penalty in the title of the operative section. PL 104-191, 110 Stat. 2084 (1996). Plaintiffs say the section functions as a penalty in any event.
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for certain laundry charges on a monopolization theory. The laundries challenged the rates as confiscatory because they allegedly did not allow the laundries to recoup their costs, much less earn reasonable profit. The laundries also complained that the State violated their due process rights by precluding all possibility of judicial review of the rate-making apart from a post-deprivation hearing following imposition of contempt citations and penalties imposed on laundries choosing to charge more than the allowed rates. The Supreme Court affirmatively declared a due process violation based on the lack of pre-deprivation judicial review–something even the State apparently recognized and had tried to remedy by legislative amendment while the case was on review. The Court then remanded the case for final determination of whether the rates really were confiscatory. If so, permanent relief would issue in favor of the laundries. But even if not–that is, even if the trial court ultimately determined that the rates were not confiscatory–the Supreme Court opined that the trial court should still enter a final judgment that would abate penalties accrued during the litigation as long as the trial court concluded the laundries had reasonable cause for their position, despite their ultimate loss.
In the Court’s view, Love further undermines a showing of irreparable harm. First, the Love Court affirmatively found a constitutional defect in the State’s legislative scheme. Here, there has been no finding of a likely constitutional or statutory violation. To the contrary, this Court has concluded that Plaintiffs are almost certain to fail on their constitutional theories, and are not likely to succeed on their statutory theory. Second, the constitutional challenge in Love was to the process itself, and specifically to the accrual of daily penalties without the possibility of adequate judicial review. In this case, there is obviously a pathway for judicial review and Plaintiffs are exercising it. The question is whether they will ultimately prevail on their substantive free exercise claims.
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Plus, even if they fail on the merits, the financial tax they may trigger under Section 4980D has built in cap and exemption provisions for failures to comply due to “reasonable cause.” Finally, and most importantly for preliminary injunction consideration, what Love demonstrates is that final judgment in the case can still address and adjust the propriety of any financial penalties–if they are penalties–imposed under Section 4980D or otherwise during the pendency of the case even if Plaintiffs ultimately lose on the merits. The touchstone of any such adjustment under Love is the reasonable cause of the Plaintiffs in pursuing the litigation. True, a preliminary injunction strengthens Plaintiffs’ hand in that analysis, as the government brief recognizes. But losing the preliminary injunction is not necessarily fatal to a reasonable cause finding, whether by the Court under Love, or by the Secretary under Section 4980D itself.
Because Plaintiffs have not shown a risk of imminent, irreparable injury, this factor favors Defendants.
3. Balance of Equities and Public Policy These factors do not weigh heavily in favor of either party. At a minimum, Plaintiffs have not made a sufficient showing under these factors to overcome the weaknesses the Court sees in the first two factors. The Court does note an irony: namely, one very real possibility in this case is that Plaintiffs will choose to terminate their existing group coverage and run the risk of a shared responsibility payment obligation under Section 4980H, rather than the more draconian financial consequences under Section 4980D for non-compliant group plans. This would, of course, leave Autocam’s employees without group coverage of any kind, and with limited options at present because the envisioned insurance exchanges for individuals who do not have group coverage are not yet available, and likely will not be for at least another year. The net result of this scenario would
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seem to be a loss for everyone – for the Autocam Plaintiffs, for the Autocam employees, and for the Defendants – all of whom would presumably prefer to see at least continuation of existing group coverage, rather than termination of all group coverage. But such a result is traceable directly to the policy decisions of Congress and the Executive branch in selecting the substance, the timing, and enforcement incentives of the rules at issue. The Court will ultimately decide if those choices violate the Constitution, RFRA, or the APA, and will order final relief accordingly. But if there is a solution that avoids a short term outcome unsatisfying to everyone, it will have to come from the mutual agreement of the parties that their respective and ultimately divergent interests on the merits are nevertheless served by an interim agreement that avoids the short term outcome no one wants to see.
Balancing the four preliminary injunction factors together, the Court concludes that they weigh against Plaintiffs’ request for relief.
Conclusion For these reasons, the Court concludes that Plaintiffs are not entitled to the preliminary injunction they seek. ACCORDINGLY, IT IS ORDERED: Plaintiffs’ Motion for Preliminary Injunction (docket # 8) is DENIED.

DATED: December 24, 2012

/s/______________________________________ ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

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 Case: 12-2673 Document: 006111544022 Filed: 12/28/2012 Page: 1 No. 12-2673

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AUTOCAM CORPORATION, et al.,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the United )

States Department of Health and Human Services, )

et al.,

)

)

Defendants-Appellees.

)

FILED
Dec 28, 2012
DEBORAH S. HUNT, Clerk
O R D E R

Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
Autocam Corporation, Autocam Medical, and their owners appeal the denial of a preliminary injunction in their action before the district court challenging the implementation of the contraception-coverage provisions in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (the “ACA”), under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. (“RFRA”). The plaintiffs move for an injunction pending appeal and to expedite the appeal.
Federal Rule of Appellate Procedure 8(a)(2) authorizes us to grant an injunction pending appeal. “In granting such an injunction, the Court is to engage in the same analysis that it does in reviewing the grant or denial of a motion for a preliminary injunction.” Id. The relevant factors are: “(1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the

Case: 12-2673 Document: 006111544022 Filed: 12/28/2012 Page: 2 No. 12-2673 - 2 -
injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002); see also Baker v. Adams Cnty./Ohio Valley Sch. Bd., 310 F.3d 927, 928 (2002).
To demonstrate a likelihood of success on appeal, “[i]t is not enough that the chance of success on the merits be better than negligible.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation omitted). Instead, “[m]ore than a mere possibility of relief is required.” Id. (internal quotation marks and citation omitted).
The Supreme Court has never considered similar RFRA or free-exercise claims. Hobby Lobby Stores, Inc. v. Sebelius, No. 12A644, 2012 WL 6698888 (Dec. 26, 2012). But, applying a more demanding standard, it denied an injunction pending appeal in a case involving similar issues. Id. No circuit court has considered these claims. Although no district court has issued a final decision on these issues, the district courts that have considered whether to grant a preliminary injunction on similar claims have issued conflicting decisions. Compare Korte , 2012 WL 6553996, at *6-11 (denying a preliminary injunction), Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1290-96 (W.D. Okla. 2012) (same), with Tyndale House Publishers, Inc. v. Sebelius, No. 121635, 2012 WL 5817323, at *10-18 (D.D.C. Nov. 16, 2012) (granting a preliminary injunction), Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *6-13 (E.D. Mich. Oct. 31, 2012) (same), and Newland v. Sebelius, No. 1:12-cv-1123, 2012 WL 3069154, at *5-8 (D. Colo. July 27, 2012) (same). Certainly, the divergence of opinion by the district courts establishes the possibility of success on the merits. But, in light of the lower court’s reasoned opinion in this case and the Supreme Court’s recent denial of an injunction pending appeal in Hobby Lobby, the plaintiffs have not demonstrated more than a possibility of relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (parsing the meaning of “likely” relative to the “irreparable harm” requirement for issuance of a preliminary injunction).

Case: 12-2673 Document: 006111544022 Filed: 12/28/2012 Page: 3 No. 12-2673 - 3 -
The denial of an injunction can “cause irreparable harm if the claim is based upon a violation of the plaintiff’s constitutional rights.” Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). But, as discussed above, it is not clear that the contraceptive requirement violates the plaintiffs’ constitutional rights. And purely monetary damages generally do not warrant an injunction. Id. at 578-79. Further, the district court noted that the contraceptive requirement was codified as a tax, which if it is, would bar its preliminary or permanent enjoinment. 26 U.S.C. § 7421(a); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2583 (2012). The remaining factors do not weigh in favor of either side.
The plaintiffs also move to expedite the appeal. The appeal focuses on purely legal issues that have already been briefed below. Further, the district court's decision on appeal conflicts with another district court's decision in this circuit. See Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *6-13 (E.D. Mich. Oct. 31, 2012) (granting a preliminary injunction on similar issues). Under these circumstances, it is prudent to expedite consideration of the issues on appeal.
The motion for an injunction pending appeal is DENIED. The motion to expedite the appeal is GRANTED, and the clerk shall expedite this appeal for briefing and submission.
ENTERED BY ORDER OF THE COURT
Clerk
ROGERS, J., dissenting. I would grant the injunction pending appeal, for the following reasons. There is a reasonable likelihood of success on the merits for the plaintiffs in this case on their
RFRA claim, essentially for the reasons given in Tyndale House Publishers, Inc. v. Sebelius,

Case: 12-2673 Document: 006111544022 Filed: 12/28/2012 Page: 4 No. 12-2673 - 4 -
No. 12-1635, 2012 WL 5817323, at *10-18 (D.D.C. Nov. 16, 2012). See also Newland v. Sebelius, No. 1:12-cv-1123, 2012 WL 3069154, at *5-8 (D. Colo. July 27, 2012).
Both RFRA and the applicable standard for a preliminary injunction in this case require in some sense a balancing between the burden on the religious conscience of plaintiffs and the interests furthered by the regulation in question. Plaintiffs assert that it would violate their sincere religious beliefs to direct the company that they control to cut checks to pay directly for contraceptive services. They are okay, however, with giving discretionary healthcare money to their employees, who may then choose to buy such services. If walking this fine line is sincerely accepted as a condition for salvation, it is not up to the government to say that the line is too fine. Lots of religious lines are fine. Of course government is not bound by every religious fine line. But RFRA requires that the government interest be strong before forcing people to cross the line.
At this stage of this litigation, the government interest does not appear particularly weighty. Arguments about the government’s interest in the consistent application of the law lack force where the Government has apparently not appealed or requested a stay in a similar case in which a preliminary injunction was entered. Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *6-13 (E.D. Mich. Oct. 31, 2012). Also, we are not informed that the Government has sought or obtained a stay in two other very similar cases where a preliminary injunction has been entered (Tyndale, supra; and Newland, supra). Moreover, the interests of the employees in obtaining contraceptive services do not appear weighty in the context of this case, where such services can be paid for through individual health care accounts provided by the employer.
The burden on the plaintiffs, assuming their sincerity, is in contrast large. It is that they must take a chance on huge fines or act contrary to their conscience.
For these reasons, I would grant the injunction against the enforcement of the regulation in question pending appeal. Because the majority denies the injunction pending appeal, I agree that the appeal should be expedited.

Case: 12-2673 Document: 006111544026 Filed: 12/28/2012 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 28, 2012

Mr. Patrick Thomas Gillen Mr. Jason Charles Miller Ms. Abby Christine Wright

Re: Case No. 12-2673, Autocam Corporation, et al v. Kathleen Sebelius, et al Originating Case No. : 1:12-cv-01096
Dear Sir or Madam, The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Ms. Tracey Cordes Enclosure

s/Louise Schwarber Case Manager Direct Dial No. 513-564-7015

 
 Case: 12-2673 Document: 006111545038 Filed: 12/31/2012 Page: 1 No. 12-2673

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AUTOCAM CORPORATION, et al.,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the United )

States Department of Health and Human Services, )

et al.,

)

)

Defendants-Appellees.

)

FILED
Dec 31, 2012
DEBORAH S. HUNT, Clerk
O R D E R

Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
Autocam Corporation, Autocam Medical, and their owners appeal the denial of a preliminary injunction in their action before the district court challenging the implementation of the contraception-coverage provisions in the Patient Protection and Affordable Care Act. The plaintiffs moved for an injunction pending appeal and to expedite the appeal. We denied the motion for an injunction pending appeal, but granted the motion to expedite. The plaintiffs now move for reconsideration, drawing our attention to additional decisions rendered after our decision that support their position. Upon consideration, we conclude that reconsideration is unnecessary.
The motion for reconsideration is DENIED. Rogers, J., dissenting. I would grant the motion for reconsideration.
ENTERED BY ORDER OF THE COURT

Clerk

Case: 12-2673 Document: 006111545039 Filed: 12/31/2012 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: December 31, 2012

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Patrick Thomas Gillen Fidelis Center for Law and Policy 1025 Commons Circle Naples, FL 34119
Mr. Jason Charles Miller Miller Johnson 250 Monroe Avenue, N.W. Suite 800 Grand Rapids, MI 49503
Ms. Abby Christine Wright U. S. Department of Justice 950 Pennsylvania Avenue, N.W. 7252 Washington, DC 20530
Re: Case No. 12-2673, Autocam Corporation, et al v. Kathleen Sebelius, et al Originating Case No. : 1:12-cv-01096
Dear Sir or Madam,
The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Ms. Tracey Cordes Enclosure

s/Louise Schwarber Case Manager Direct Dial No. 513-564-7015

 
 Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 1 of 49 Page ID#166

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:12-cv-01096-RJJ

DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 2 of 49 Page ID#167
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
I. Statutory Background ..........................................................................................................4
II. Current Proceedings.............................................................................................................7
STANDARD OF REVIEW .............................................................................................................7
ARGUMENT ...................................................................................................................................8
I. PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS.......................................................................................8 a. Plaintiffs have not established Article III standing............................................8 b. Plaintiffs’ Religious Freedom Restoration Act Claim lacks merit ....................9
i. The preventive services coverage regulations do not substantially burden any “exercise of religion” by for-profit, secular companies and their owners..........................................................................................................9 1. There is no substantial burden on Autocam because for-profit, secular corporations do no exercise rights under RFRA .................9 2. The regulations do not substantially burden the religious exercise of the Kennedys because the regulations apply only to Autocam, a separate and distinct legal entity....................................................13 3. Alternatively, any burden imposed by the challenged regulations is too attenuated to constitute a substantial burden ...........................16
ii. Even if there were a substantial burden on religious exercise, the regulations serve compelling government interests and are the least restrictive means to achieve those interests ...............................................18 1. The regulations significantly advance compelling governmental interests in women’s health and equality .......................................18 2. The regulations are the least restrictive means of advancing the government’s compelling interests ................................................26
c. Plaintiffs’ First Amendment claims are meritless..................................................29 i. The regulations do not violate the Free Exercise Clause........................29
i

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 3 of 49 Page ID#168 ii. The regulations do not violate the Free Speech Clause ..........................32
II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............35
CONCLUSION..............................................................................................................................37
ii

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 4 of 49 Page ID#169
TABLE OF AUTHORITIES
FEDERAL CASES Adams v. City of Marshall,
No. 4:05-cv-62, 2006 WL 2095334 (W.D. Mich. July 27, 2006) ...........................................30
Am. Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) ...............................................................................................32
Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., No. 11-1538, 2012 WL 5258999 (6th Cir. Oct. 25, 2012) ........................................................9
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................31, 33
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ...............................................................................................31
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).................................................................................................................35
Braunfeld v. Brown, 366 U.S. 599 (1961).....................................................................................................14, 26, 27
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) .................................................................................................19
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)...........................................................................................................15, 16
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).........................................................................................15, 23, 31, 32, 33
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008).....................................................................................................14
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) ...................................................................................................37
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) ...........................................................................................37
Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327 (1987).................................................................................................................13
iii

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 5 of 49 Page ID#170
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995)........................................................................................19
Dole Food Co. v. Patrickson, 538 U.S. 468 (2003).................................................................................................................15
EEOC v. Townley Eng’g and Mfg. Co., 859 F.2d 610 (9th Cir. 1988) ...................................................................................................17
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................36
Emp’t Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...................................................................................................3, 4, 30, 32
Franklin v. United States, 992 F.2d 1492 (10th Cir. 1993) .........................................................................................12, 13
Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) .................................................................................................36
Gillette v. United States, 401 U.S. 437 (1971).................................................................................................................32
Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009) ............................................................................................29
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).................................................................................................................11
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) .................................................................................................31
Graham v. Comm’r, 822 F.2d 844 (9th Cir. 1987) .............................................................................................21, 28
Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002) ...........................................................................................11
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012).............................................................................................11, 12, 16, 17
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995)...........................................................................................................34, 35
Huron Mountain Club v. U.S. Army Corps of Eng’rs,
iv

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 6 of 49 Page ID#171
No. 2:12-CV-197, 2012 WL 3060146 (W.D. Mich. 2012) .....................................................36
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).......................................................................................................33
Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009) ...............................................................................................9, 37
Kan. Health Care Ass’n, Inc. v. Kan. Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994) .................................................................................................37
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952)...................................................................................................................12
Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................32
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217 (3d Cir. 2007).....................................................................................................12
Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) ...............................................................................................8, 38
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ...............................................................................................11
Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012)...............................................30
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007).....................................................................................................31
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 2007 WL 4322157 (6th Cir. 2007) ..................................................14, 15
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................9, 10
Ex parte McCardle, 7 Wall. 506 (1868) ...................................................................................................................10
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) ...............................................................................................9, 36
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) ...........................................................................................19
v

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 7 of 49 Page ID#172
Mich. Laborers’ Health Care Fund v. Taddie Constr., Inc., 119 F. Supp. 2d 698 (E.D. Mich. 2000)...................................................................................16
Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) ...................................................................................................35
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) .................................................................................................29
Nebraska v. U.S. Dep’t of Health & Human Servs., No. 4:12CV3035, 2012 WL 2913402 (D. Neb. July 17, 2012)...............................................10
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989)........................................................................................27, 28, 29
Newland v. Sebelius, Civil Action No. 1:12-cv-1123-JLK, 2012 WL 3069154 (D. Colo. July 27, 2012)..........30, 38
Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374 (9th Cir. 1985) .................................................................................................37
O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476(CEJ), 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012) ......................... passim
Obama For America v. Husted, Nos. 12-4055, 12-4076, 2012 WL 4753397 (6th Cir. Oct. 5, 2012) .....................................8, 9
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) ...................................................................................................31
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) .................................................................................................15
Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75 (4th Cir.1989) ................................................................................................36, 37
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................14, 20
Rumsfeld v. Forum for Academic & Inst. Rights (“FAIR), 547 U.S. 47 (2006)...................................................................................................................34
S. Ridge Baptist Church v. Indus. Comm’n, 911 F.3d 1203 (6th Cir. 1990) .....................................................................................22, 23, 27
vi

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 8 of 49 Page ID#173
Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................13, 18
Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006 (10th Cir. 2001) ...............................................................................................15
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)...................................................................................................................10
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................17, 38
Texas v. Johnson, 491 U.S. 397 (1989).................................................................................................................35
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).................................................................................................................35
Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964 (2d Cir. 1995).......................................................................................................37
Walz v. Tax Comm'n of N.Y., 397 U.S. 664 (1970).................................................................................................................32
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).................................................................................................................37
Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) .................................................................................................12
White v. United States, 601 F.3d 545 (6th Cir. 2010) .....................................................................................................9
Wooley v. Maynard 430 U.S. 705 (1977).................................................................................................................34
United States v. Amer, 110 F.3d 873 (2d Cir. 1997).....................................................................................................33
United States v. Friday, 525 F.3d 938 (10th Cir. 2008) .................................................................................................22
United States v. Indianapolis Baptist Temple, 224 F.3d 627 (7th Cir. 2000) ...................................................................................................33
United States v. Lafley,
vii

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 9 of 49 Page ID#174
656 F.3d 936 (9th Cir. 2011) .............................................................................................28, 29 United States v. Lee,
455 U.S. 252 (1982).....................................................................................3, 13, 22, 23, 25, 26 United States v. Schmucker,
815 F.2d 413 (6th Cir. 1987) ...................................................................................................27 United States v. Wilgus,
638 F.3d 1274 (10th Cir. 2011) .........................................................................................27, 28 United States v. Winddancer,
435 F. Supp. 2d 687 (M.D. Tenn. 2006)..................................................................................23 Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7 (2008)...................................................................................................................8, 9 STATE CASES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)....................................................................................................30
Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67 (Cal. 2004) .....................................................................................21, 28, 31, 32, 35
Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447 (Mich. Ct. App. 1982) ..................................................................................15
Hills & Dales Gen. Hosp. v. Pantig, 812 N.W.2d 793 (Mich. Ct. App. 2011) ............................................................................15, 16
McClure v. Sports and Health Club, 370 N.W.2d 844 (Minn. 1985).................................................................................................13
Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994).....................................................................................................13 FEDERAL STATUTES
26 U.S.C. § 1402(g) .....................................................................................................................25 26 U.S.C. § 1402(g)(1) ............................................................................................................25, 26 26 U.S.C. § 4980H.........................................................................................................................24
viii

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 10 of 49 Page ID#175
26 U.S.C. § 4980H(c)(2)................................................................................................................24 26 U.S.C. § 5000A(d)(2)..........................................................................................................25, 26 29 U.S.C. § 1132(d) .................................................................................................................15, 19 42 U.S.C. § 18011..........................................................................................................................23 42 U.S.C. § 18021..........................................................................................................................25 42 U.S.C. § 18031(d)(2)(B)(i) .......................................................................................................25 42 U.S.C. § 2000bb-1(a) ................................................................................................................11 42 U.S.C. § 2000bb-1(b)..........................................................................................................11, 12 42 U.S.C. § 2000e-1(a) ............................................................................................................12, 17 42 U.S.C. § 2000e-2(a) ..................................................................................................................12 42 U.S.C. § 300gg-11 ....................................................................................................................26 42 U.S.C. § 300gg-13(a) ..........................................................................................................24, 25 42 U.S.C. § 300gg-13(a)(4) .............................................................................................................6 42 U.S.C. § 300gg-91(a)(1) ...........................................................................................................14 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................5 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................11
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713T ...........................................................................................................14 26 C.F.R. § 54.9815-2713T(b)(1)....................................................................................................6 29 C.F.R. § 2590.715-2713........................................................................................................6, 14 45 C.F.R. § 147.126 .......................................................................................................................26 45 C.F.R. § 147.126(d)(3)..............................................................................................................26 45 C.F.R. § 147.130 .........................................................................................................................6
ix

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 11 of 49 Page ID#176
45 C.F.R. § 147.130(a)(1)(iv) ........................................................................................................26 45 C.F.R. § 147.130(a)(1)(iv)(A).....................................................................................................7 45 C.F.R. § 147.130(a)(1)(iv)(B).....................................................................................................7 45 C.F.R. § 147.140 ...............................................................................................................2, 9, 23 75 Fed. Reg. 41,726 (July 19, 2010)................................................................................................6 76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................7 77 Fed. Reg. 16,501 (Mar. 21, 2012)...............................................................................................8 77 Fed. Reg. 8725 (Feb. 15, 2012) ..................................................................................................8 75 Fed. Reg. 34,538 (June 17, 2010) .......................................................................................10, 24
STATE STATUTES Mich. Comp. Laws Ann. § 450.1261(b) ........................................................................................15 Mich. Comp. Laws Ann. § 450.1541a(c).......................................................................................16
LEGISLATIVE MATERIALS 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) .................................................20, 21 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) .......................................................21 H.R. Rep. No. 111-443 pt. II (2010)........................................................................................28, 29
MISCELLANEOUS FDA, Birth Control Guide ...............................................................................................................6 Guttmacher Institute, State Policies in Brief: Insurance Coverage
of Contraceptives (Oct. 1, 2012)...............................................................................................7 HRSA, Women’s Preventive Services: Required Health
Plan Coverage Guidelines..............................................................................................7, 33, 34 INST. MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS 19-20, 109 (2011) ...................................................................... passim
x

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 12 of 49 Page ID#177
INTRODUCTION Plaintiffs – two manufacturing companies, as well as their controlling shareholders – ask this Court to preliminarily enjoin regulations that are intended to help ensure that women have access to health coverage, without cost-sharing, for certain preventive services that medical experts have deemed necessary for women’s health and well-being. The preventive services coverage regulations that plaintiffs challenge require all group health plans and health insurance issuers offering non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing (such as a copayment, coinsurance, or a deductible).1 As relevant here, except as to group health plans of certain nonprofit religious employers (and group health insurance coverage sold in connection with those plans), the preventive services that must be covered include all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. The plaintiffs in this case are Autocam Corporation and Autocam Medical, LLC (“Autocam”), two for-profit manufacturing companies based in Michigan, and five owners and/or officers with a controlling interest in Autocam.2 Plaintiffs claim that their sincerely held religious beliefs prohibit them from providing health coverage for certain contraceptive services. Plaintiffs’ challenge rests largely on the legal theory that a for-profit corporation established to engage in manufacturing can claim to exercise religion and thereby avoid the reach of laws designed to regulate commercial activity and protect the rights of employees. This cannot be. Indeed, the Supreme Court has recognized that, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which
1 A grandfathered plan is one that existed on March 23, 2010, and that has not undergone any of a defined set of changes. See, e.g., 45 C.F.R. § 147.140. 2 Following plaintiffs’ convention, defendants generally will refer to the two company plaintiffs as a single entity, “Autocam.” The individual plaintiffs will be referred to collectively as “the Kennedys.”
1

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are binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261 (1982). Nor can the owners or officers of such a company eliminate the legal separation provided by the corporate form to impose their personal religious beliefs on the corporate entity’s employees. To hold otherwise would permit for-profit companies and their shareholders and officers to become laws unto themselves, claiming countless exemptions from an untold number of general commercial laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs. Such a system would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general application. This Court, therefore, should reject plaintiffs’ effort to bring about an unprecedented expansion of constitutional and statutory free exercise rights.
For this reason and others, plaintiffs’ motion for preliminary injunction should be denied because plaintiffs are not likely to succeed on the merits of their claims. As a threshold matter, plaintiffs have not met their burden of establishing Article III standing. But even if they had, with respect to plaintiffs’ Religious Freedom Restoration Act (RFRA) claims, none of the plaintiffs can show, as they must, that the preventive services coverage regulations substantially burden their religious exercise. Autocam is a for-profit, secular employer, and a secular entity by definition does not “exercise religion” under RFRA and the Free Exercise Clause.
The Kennedys’ allegations of a substantial burden on their own individual religious exercise fare no better, as the regulations that purportedly impose such a burden apply only to certain group health plans and health insurance issuers. The Kennedys are neither. It is well established that a corporation and its shareholders and officers are wholly separate entities, and the Court should not permit the Kennedys to eliminate that legal separation to impose their personal religious beliefs on the corporate entity’s group health plan or its employees. None of the Kennedys is required to provide health coverage; only the corporation is subject to the challenged regulations. Autocam’s owners and shareholders cannot use the corporate form alternatively as a shield and a sword, depending on what suits them in any given circumstance.
Furthermore, even if Autocam could exercise religion within the meaning of RFRA, the 2

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preventive services coverage regulations still would not impose a substantial burden on plaintiffs’ exercise of religion because any burden caused by the regulations is simply too attenuated to qualify as a substantial burden. Indeed, in a decision plaintiffs fail to cite, the first court to address the merits of a challenge to the preventive services coverage regulations dismissed the plaintiffs’ RFRA claim for this reason. See O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476(CEJ), 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012), appeal docketed, No.12-3357 (8th Cir. Oct. 4, 2012). It will remain the independent choice of Autocam’s employees (and their health care providers) whether to use their employer-provided health care coverage to procure particular health care services – including the contraceptive services to which plaintiffs object – just as it is currently their choice whether to use their employer-paid salaries to procure those services, subject to the employees’ own moral and other preferences, rather than those of their employer. And Autocam remains free to advocate particular choices to its workforce. Finally, even if the preventive services coverage regulations were deemed to substantially burden any plaintiff’s religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling governmental interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to do so can be part of the workforce on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. The Free Exercise Clause does not prohibit a law that is neutral and generally applicable even if the law prescribes conduct that an individual’s religion proscribes. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). The preventive services coverage regulations fall within this rubric because they do not target, or selectively burden, religiously-motivated conduct. The regulations apply to all non-exempt, non-grandfathered plans, not just those of employers with religious affiliations. Indeed, the O’Brien court dismissed a Free Exercise challenge identical to that brought by plaintiffs here. See 2012 WL 4481208, at *7-9. Nor do the regulations violate plaintiffs’ Free Speech or Free Association rights. The regulations compel conduct, not speech. They do not
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require plaintiffs to say anything; nor do they prohibit plaintiffs from expressing to employees or the public their views in opposition to the use of contraceptive services. For that reason, the O’Brien court dismissed just such a free speech challenge. See 2012 WL 4481208, at *11-13. And the regulations do not interfere with the composition of Autocam’s workforce. Indeed, the highest courts of both New York and California have upheld state laws similar to the preventive services coverage regulations against First Amendment challenges like those asserted here.
Finally, plaintiffs cannot establish irreparable harm, and entering an injunction would injure the government and the public. Absent a showing of likelihood of success on the merits (which plaintiffs cannot make), plaintiffs cannot establish that they will be irreparably harmed if the Court does not enjoin the application of the regulations to Autocam. Independently, plaintiffs cannot show irreparable harm because they waited more than a year after the contraceptive coverage requirement was established before filing suit. The purported urgency of plaintiffs’ current request for emergency injunctive relief is belied by the tardiness of that request. Plaintiffs should not be rewarded for creating their own alleged emergency. In contrast, entering a preliminary injunction would harm both the government and the public. Enjoining application of the regulations as to Autocam would prevent the government from achieving Congress’s goals of improving the health of women and children and equalizing the playing field for women and men. It would also harm the public, given the large number of employees at Autocam – as well as any covered spouses and other dependents – who could suffer the negative health and other consequences that the regulations are intended to prevent.
BACKGROUND I. Statutory Background
Before the enactment of the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due in large part to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR
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WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”). Section 1001 of the ACA – which includes the preventive services coverage provision that is relevant here – seeks to cure this problem by making preventive care affordable and accessible for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
The government issued interim final regulations implementing the preventive services coverage provision on July 19, 2010. 75 Fed. Reg. 41,726. Those regulations provide, among other things, that a group health plan or health insurance issuer offering non-grandfathered health coverage must provide coverage for newly recommended preventive services, without costsharing, for plan years that begin on or after the date that is one year after the date on which the new recommendation is issued. 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.7152713(b)(1); 45 C.F.R. § 147.130(b)(1).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, HHS tasked the Institute of Medicine (IOM)3 with developing recommendations to implement the requirement to provide preventive services for women. IOM REP. at 2. After an extensive science-based review, IOM recommended that HRSA guidelines include, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (IUDs). FDA, Birth Control Guide, available at http://www.fda.gov/forconsumers/byaudience/forwomen/
3 IOM was established in 1970 by the National Academy of Sciences and is funded by Congress. IOM REP. at iv. It secures the services of eminent members of appropriate professions to examine policy matters pertaining to the health of the public and provides expert advice to the federal government. Id.
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ucm118465.htm (last visited Oct. 22, 2012). IOM determined that coverage, without costsharing, for these services is necessary to increase access, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. IOM REP. at 102-03; see infra at 21-22.
On August 1, 2011, HRSA adopted IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Oct. 22, 2012). The amendment to the interim final regulations, issued on the same day, authorized HRSA to exempt group health plans established or maintained by certain religious employers (and associated group health insurance coverage) from any requirement to cover contraceptive services under HRSA’s guidelines. 76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A).4 The religious employer exemption was modeled after the religious accommodation used in multiple states that had already required health insurance issuers to provide coverage for contraception.5 76 Fed. Reg. at 46,623.
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the amended interim final regulations while also establishing a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any
4 To qualify, an employer must meet the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
45 C.F.R. § 147.130(a)(1)(iv)(B). 5 At least 28 states have laws requiring health insurance policies that cover prescription drugs to also cover FDAapproved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (Oct. 1, 2012), available at http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf (last visited Oct. 22, 2012).
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associated group health insurance coverage). 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012). During the safe harbor period, the government intends to amend the preventive services coverage regulations to further accommodate non-exempt, non-grandfathered religious organizations’ religious objections to covering contraceptive services. Id. at 8728. The government began the process of further amending the regulations on March 21, 2012, when it published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register. 77 Fed. Reg. 16,501. II. Current Proceedings
Plaintiffs brought this action to challenge the lawfulness of the preventive services coverage regulations to the extent that they require the health coverage Autocam makes available to its employees to cover certain recommended contraceptive services. On October 8, 2012 – 14 months after the contraceptive coverage requirement was established – plaintiffs filed suit; they moved for a preliminary injunction on October 10, 2012, claiming they would suffer irreparable harm if the preventive services coverage regulations were not enjoined as to them. See Compl., Oct. 8, 2012, ECF No. 1; Pls.’ Mot. for Prelim. Inj., Oct. 10, 2012, ECF No. 8. In support of their motion, plaintiffs rely solely on their RFRA, Free Exercise, and Free Speech claims. See Pls.’ Br. Supporting Mot. for Prelim. Inj. 3-4, Oct. 10, 2012 (“Pls.’ Br.”), ECF No. 9.
STANDARD OF REVIEW A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; Obama For America v. Husted, Nos. 12-4055, 12-4076, 2012 WL 4753397, at *4, 12 (6th Cir. Oct. 5, 2012). “[T]he proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Plaintiffs incorrectly suggest that they need not show a likelihood of success on the
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merits if the Court determines that the remaining factors strongly favor plaintiffs. See Pls.’ Br. at 7-8. As an initial matter, this suggestion is in significant tension with the Supreme Court’s express requirement that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Winter, 555 U.S. at 20 (emphasis added); Obama For America, 2012 WL 4753397, at *12. Furthermore, where a plaintiff’s alleged injury is a deprivation of First Amendment rights, as here, see Pls.’ Br. at 8, 16, the merits and irreparable harm prongs merge. See Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., No. 111538, 2012 WL 5258999, at *2 (6th Cir. Oct. 25, 2012). In this respect, plaintiffs cannot show irreparable harm without also showing a likelihood of success on the merits. See id.; McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (“Because [plaintiff] does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”); Jones v. Caruso, 569 F.3d 258, 266 (6th Cir. 2009).
ARGUMENT I. PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE
MERITS a. Plaintiffs have not established Article III standing As a threshold matter, plaintiffs are unlikely to succeed on the merits because they have not met their burden of establishing Article III standing – i.e., that they have “suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations omitted). Specifically, plaintiffs have not sufficiently alleged that the health plans they offer to employees are not grandfathered, and thus excluded from the requirement to cover contraceptive services. Plaintiffs state that their “insurance plans are not considered ‘grandfathered’ due to unrelated changes made on January 1, 2011,” Compl. ¶ 42; see also Pls.’ Br. At 7 (same), but they do not provide any of the factual allegations necessary to support this legal conclusion, see 45 C.F.R. § 147.140; White v. United States, 601 F.3d 545, 551-52 (6th Cir. 2010) (“[S]tanding cannot be inferred . . . from averments in the pleadings, but
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rather must affirmatively appear in the record, nor will naked assertion[s] devoid of further factual enhancement suffice.” (internal citations and quotations omitted)); Nebraska v. U.S. Dep’t of Health & Human Servs., No. 4:12CV3035, 2012 WL 2913402, at *12 (D. Neb. July 17, 2012), appeal docketed, No. 12-3238 (8th Cir. Sept. 25, 2012) (“To meet their burden, the plaintiffs must plead facts showing that [their] plans are not grandfathered.”).6
Indeed, the only court to rule on a similar issue dismissed for lack of standing when faced with allegations identical to plaintiffs’. See Nebraska, 2012 WL 2913402, at *12 (“[A] ‘naked assertion’ that a plan does not satisfy the legal definition of ‘grandfathered health plans’ is not sufficient [to establish standing].”). As that court explained, “the plaintiffs have failed to plead specific facts showing that [their] plans are not grandfathered. As a result, they have not shown that they are subject to the Rule’s contraceptive, sterilization, and related preventive service coverage requirements, and [the court] must dismiss their claims for lack of standing.” Id.
So too here. Because plaintiffs have not established standing to challenge the preventive services coverage regulations, they cannot show a likelihood of success on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“‘Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.’” (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)). Even if plaintiffs had sufficiently alleged standing, however, they still have not shown a likelihood of success on the merits, as explained below.
b. Plaintiffs’ Religious Freedom Restoration Act Claim lacks merit i. The preventive services coverage regulations do not substantially burden any “exercise of religion” by for-profit, secular companies and their owners 1. There is no substantial burden on Autocam because for-profit, secular corporations do no exercise rights under RFRA
6 Although defendants estimate that a majority of group health plans will lose their grandfather status by 2013, 75 Fed. Reg. 34,538, 34,552 (June 17, 2010), plaintiffs must establish that their plan is not grandfathered, see Lujan, 504 U.S. at 560 n.1 (“[T]he injury must affect the plaintiff in a personal and individual way.”).
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Congress enacted the Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb-1, et seq.) in response to Employment Division v. Smith, 494 U.S. 872 (1990). RFRA was intended to reinstate the pre-Smith compelling interest test for evaluating legislation that substantially burdens the free exercise of religion. 42 U.S.C. § 2000bb-1(b). Under RFRA, the federal government generally may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). But the government may substantially burden the exercise of religion if the burden “(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).
Here, plaintiffs have not shown that the regulations substantially burden their religious exercise. Plaintiffs suggest that Autocam “exercise[s] . . . religion” with the meaning of RFRA, id.; Pls.’ Br. at 3. But that position cannot be reconciled with Autocam’s self-described status as a “for-profit, secular employer.” Compl. ¶ 155. The terms “religious” and “secular” are antonyms; a “secular” entity is defined as “not overtly or specifically religious.” See MerriamWebster’s Collegiate Dictionary 1123 (11th ed. 2003). Thus, by definition, a secular company does not engage in any “exercise of religion,” 42 U.S.C. § 2000bb-1(a), as required by RFRA. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he practice[] at issue must be of a religious nature.”); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 83 (D.D.C. 2002), aff’d on other grounds, 333 F.3d 156 (rejecting an organization’s RFRA claim because “nowhere in Plaintiff’s Complaint does it contend that it is a religious organization. Instead, [Plaintiff] defines itself as a ‘non-profit charitable corporation,’ without any reference to its religious character or purpose.”).
Because Autocam is a secular employer, it is not entitled to the protections of the Free Exercise Clause or RFRA. This is because, although the First Amendment freedoms of speech and association are “right[s] enjoyed by religious and secular groups alike,” the Free Exercise Clause “gives special solicitude to the rights of religious organizations.” Hosanna-Tabor
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Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (emphasis added). The cases are replete with statements like this. See, e.g., Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (stating that the Supreme Court’s precedent “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation”) (emphasis added); Hosanna-Tabor, 132 S. Ct. at 706 (Free Exercise Clause “protects a religious group’s right to shape its own faith and mission”) (emphasis added); Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (“The Free Exercise Clause protects . . . religious organizations . . . .”) (citations and quotation marks omitted) (emphasis added). This case should begin and end with plaintiffs own acknowledgement that Autocam is a secular employer.
Indeed, no court has ever held that a for-profit, secular corporation is a “religious corporation” for purposes of federal law. For this reason, secular companies cannot permissibly discriminate on the basis of religion in hiring or firing their employees or otherwise establishing the terms and conditions of their employment. Title VII of the Civil Rights Act generally prohibits religious discrimination in the workplace. See 42 U.S.C. § 2000e-2(a). But that bar does not apply to “a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [a corporation] of its activities.” Id. § 2000e-1(a). It is clear that Autocam does not qualify as a “religious corporation”; it is for-profit, it engages in manufacturing, and it alleges no religious purpose or affiliation. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007).
It would be extraordinary to conclude that Autocam is not a “religious corporation” under Title VII (and it clearly is not) and thus cannot discriminate on the basis of religion in hiring or firing or otherwise establishing the terms and conditions of employment, 42 U.S.C. § 2000e-1(a), but nonetheless “exercise[s] . . . religion” within the meaning of RFRA, id. § 2000bb-1(b).7 To
7 Indeed, such a conclusion would undermine Congress’s decision to limit the exemption in Title VII to religious organizations; any company that does not qualify for Title VII’s exemption could simply sue under RFRA to obtain an exemption from Title VII’s prohibition against discrimination in employment. See, e.g., Franklin v. United
(continued on next page…)
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reach such a conclusion would allow a secular company to impose its owner’s religious beliefs on its employees in a way that denies those employees the protection of general laws designed to protect their health and well-being (including Title VII). A host of laws and regulations would be subject to attack. Moreover, any secular company would have precisely the same right as a religious organization to, for example, require that its employees “observe the [company owner’s] standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.” Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 n.4 (1987). These consequences underscore why the Free Exercise Clause, RFRA, and Title VII distinguish between secular and religious organizations, with only the latter receiving special protection.8
It is significant that Autocam elected to organize itself as a secular, for-profit entity and to enter commercial activity. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee, 455 U.S. at 261; see also McClure v. Sports and Health Club, 370 N.W.2d 844, 853 (Minn. 1985) (“By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs.”). Having chosen this path, the corporation may not impose its owners’ personal religious beliefs on its employees (many of whom may not share, or even know of, the owners’ beliefs). In this respect, “[v]oluntary commercial activity does not receive the same status accorded to directly religious activity.” Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994) (interpreting the Free Exercise Clause of the Alaska Constitution). Any burden is therefore caused by the
States, 992 F.2d 1492, 1502 (10th Cir. 1993) (“[E]ven where two statutes are not entirely harmonious, courts must, if possible, give effect to both, unless Congress clearly intended to repeal the earlier statute.”) (citation omitted). 8 For this reason, plaintiffs’ reliance on Sherbert v. Verner, 374 U.S. 398 (1963), see Pls.’ Br. at 9, is misplaced. That case involved an individual plaintiff, not a for-profit, secular corporation.
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company’s “choice to enter into a commercial activity.” Id.; cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 635-36 (1984) (O’Connor, J., concurring).9
2. The regulations do not substantially burden the religious exercise of the Kennedys because the regulations apply only to Autocam, a separate and distinct legal entity
The preventive services coverage regulations also do not substantially burden the Kennedys’ religious exercise. By their terms, the regulations apply to group health plans and health insurance issuers. 42 U.S.C. § 300gg-91(a)(1); 26 C.F.R. § 54.9815-2713T; 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.130. The Kennedys are neither. The Kennedys nonetheless claim that the regulations substantially burden their religious exercise because the regulations require the group health plans sponsored by their for-profit secular companies to provide health insurance that includes contraceptive coverage. See Pls.’ Br. at 9. But a plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory; to constitute a substantial burden within the meaning of RFRA, the burden must be imposed on the plaintiff himself. “To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Indeed, “[i]n our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal government . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.” Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring); see also Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 2007 WL 4322157, at *734 (6th Cir. 2007) (“In the ‘Free Exercise’ context, the Supreme Court has made
9 A for-profit, secular employer like Autocam therefore stands in a fundamentally different position from a church or a religiously-affiliated non-profit organization. Cf. Amos, 483 U.S. at 344 (Brennan, J., concurring in the judgment) (“The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation . . . . but that [its] activities themselves are infused with a religious purpose.”).
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clear that the ‘substantial burden’ hurdle is high . . . .”). Here, any burden on the Kennedys’ religious exercise results from obligations that the preventive services coverage regulations impose on a legally separate, secular entity.10 This type of attenuated burden is not cognizable under RFRA. Indeed, cases that find a substantial burden uniformly involve a direct burden on the plaintiff rather than a burden imposed on another entity. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 524 (1993); Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009). Not so here, where the regulations apply to the group health plans sponsored by Autocam, not to the Kennedys themselves.
The Kennedys’ theory boils down to the claim that what’s done to the company (or group health plans sponsored by the company) is also done to its owners. But, as a legal matter, that is simply not so. The Kennedys have voluntarily chosen to enter into commerce and elected to do so by establishing for-profit corporations – “creature[s] of statute” that are their “own ‘person[s]’ under Michigan law, [] distinct and separate from [their] owners.” Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447, 449 (Mich. Ct. App. 1982); Hills & Dales Gen. Hosp. v. Pantig, 812 N.W.2d 793, 797 (Mich. Ct. App. 2011). Indeed, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001); see also Dole Food Co. v. Patrickson, 538 U.S. 468, 474 (2003) (“A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities.”). In the companies’ employment relationships, Autocam – not its officers or shareholders – “is the employing party.” Sipma v. Mass. Cas. Ins. Co., 256 F.3d 1006, 1010 (10th Cir. 2001). As a Michigan domestic profit corporation, Autocam Corporation has broad powers – it may, for example, conduct business, sue and be sued, and appoint or employ agents. Mich. Comp. Laws Ann. §§ 450.1261(b), (e), (p); Amended and Restated Articles of Incorporation of Autocam Corporation, available at
10 The attenuation is in fact twice removed. A group health plan is a legally separate entity from the company that sponsors it. 29 U.S.C. § 1132(d). And, as explained below, Autocam is a legally separate entity from the Kennedys.
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http://www.dleg.state.mi.us/bcs_corp/image.asp?FILE_TYPE=UCO&FILE_NAME=D200909\2 009254\00000509.tif (last visited Nov. 4, 2012). The company’s officers have a duty to act “in the best interests of the corporation,” Mich. Comp. Laws Ann. § 450.1541a(c), and they in turn are generally not liable for the corporation’s actions, see Mich. Laborers’ Health Care Fund v. Taddie Constr., Inc., 119 F. Supp. 2d 698, 702 (E.D. Mich. 2000).11 In short, “[t]he corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status.” Cedric Kushner Promotions, Ltd., 533 U.S. at 163. The Kennedys should not be permitted to eliminate that legal separation only when it suits them to impose their personal religious beliefs on Autocam’s group health plans or its large number of employees.
Although the preventive services coverage regulations do not require the Kennedys to provide contraceptive services directly, their complaint appears to be that, through Autocam’s group health plans and the benefits Autocam provides to employees, the Kennedys will facilitate conduct (the use of contraceptives) that they find objectionable. But this complaint has no limits. A company provides numerous benefits to its employees, including a salary, and by doing so in some sense facilitates whatever use its employees make of those benefits. But the Kennedys have no right to control the choices of their company’s employees, many of whom (having been hired, presumably, without regard to their religious views) may not share the Kennedys’ religious beliefs, when making use of their benefits. These employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations. More generally, if an owner’s or shareholder’s religious beliefs were automatically imputed to the company, any secular company with a religious owner or shareholder would be permitted to discriminate against the company’s employees on the basis of religion in establishing the terms and conditions of employment. This result would constitute a wholesale evasion of the rule that a company must be a “religious organization[]” to assert free exercise rights, Hosanna-Tabor,
11 The same goes for Autocam Medical, LLC. See Hills & Dales Gen. Hosp., 812 N.W.2d at 797 (“The rules respecting the corporate form apply equally to limited liability corporations.”).
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132 S. Ct. at 706, or a “religious corporation” to permissibly discriminate on the basis of religion
in hiring or firing its employees or otherwise establishing the terms and conditions of their employment, 42 U.S.C. § 2000e-1(a).12
3. Alternatively, any burden imposed by the challenged regulations is too attenuated to constitute a substantial burden
Even assuming that Autocam exercises religion within the meaning of RFRA and that the
legal separation created by the corporate form can be pierced when the corporation or its owners
want it to be, the regulations still do not substantially burden plaintiffs’ religious exercise for
another reason. Any burden imposed by the regulations is too attenuated to satisfy RFRA’s
substantial burden requirement.
Indeed, in a decision not cited by plaintiffs, the first court to decide the merits of a
challenge to the preventive services coverage regulations under RFRA concluded as much. See
O’Brien, 2012 WL 4481208, at *4-7. Like plaintiffs here, the plaintiffs in O’Brien were a for-
profit, secular company and an owner who held religious beliefs against contraception. Id. at *1.
Assuming, but not deciding, that the company could exercise religion, the court determined that
any burden on that exercise (as well as the owner’s exercise of religion) is too attenuated to state
a claim for relief. The court explained that “the plain meaning of ‘substantial,’” as used in
RFRA, “suggests that the burden on religious exercise must be more than insignificant or
12 Defendants anticipate that plaintiffs may rely, in their reply brief, on Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), and EEOC v. Townley Engineering and Manufacturing Co., 859 F.2d 610 (9th Cir. 1988), to argue that the regulations impose a substantial burden on plaintiffs’ religious exercise. Both cases, however, expressly declined to decide whether “a for-profit corporation can assert its own rights under the Free Exercise Clause.” Stormans, 586 F.3d at 1119; see also Townley, 859 F.2d at 619, 620. Instead, Stormans held that a particular corporation had standing to raise the rights of its owner (who was not a party). 586 F.3d at 1119-22. But this case does not present that standing question, as the Kennedys are also plaintiffs here. As for the question that this case does present – whether a burden on a corporation is also a burden on its owners – Stormans had absolutely nothing to say. Indeed, while the case discussed whether the challenged rules were neutral and generally applicable, see id. at 1130-37, it did not address the substantial burden prong at all. Similarly, nothing in Townley suggests that a burden on a corporation is also a burden on its owners. Although the court allowed Townley (the company) to assert the rights of its owners (who were not parties), see Townley, 859 F.2d at 619-20 & n.15, it did not find that Title VII imposed a substantial burden on the owners’ religious exercise. Rather, Townley acknowledged that the challenged statute “to some extent would adversely affect [plaintiffs’] religious practices,” and then proceeded to uphold Title VII on compelling interest grounds. In short, neither case supports the proposition that the preventive services coverage regulations impose a substantial burden on Autocam or the Kennedys. 859 F.2d at 620.
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remote.” Id. at *5. And cases presenting the test that RFRA was intended to restore – Sherbert and Yoder – confirm this “common-sense conclusion.” O’Brien, 2012 WL 4481208, at *5. The plaintiff in Sherbert, the court explained, “was forced to ‘choose between following the precepts of her religion [by resting, and not working, on her Sabbath] and forfeiting [unemployment] benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other.’” O’Brien, 2012 WL 4481208, at *5 (quoting Sherbert, 374 U.S. at 404). Similarly, in Yoder, the compulsory-attendance law “affirmatively compel[led] [plaintiffs], under threat of criminal sanction to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.” O’Brien, 2012 WL 4481208, at *5 (quoting Yoder, 406 U.S. at 218).
In contrast to the direct and substantial burdens imposed in those cases, the court in O’Brien determined that the preventive services coverage regulations result in only an indirect and de minimis impact on the plaintiffs. Id. at *6-7.
[T]he challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. [Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the company’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. The Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise. Id. at *6. The court noted that the regulations have no more of an impact on the plaintiffs’ beliefs than the company’s payment of salaries to its employees, which those employees can also use to purchase contraceptives. Id. at *7. Indeed, the court observed, “if the financial support of which plaintiffs complain was in fact substantially burdensome, secular companies owned by individuals objecting on religious grounds to all modern medical care could no longer be required to provide health care to employees.” Id. at *6.
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The court also noted that adopting the plaintiffs’ substantial burden argument would turn RFRA, which was meant as a shield, into a sword. Id. “[RFRA] is not a means to force one’s religious practices upon others. 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 freeexercise-wielding individuals who hold religious beliefs that differ from one’s own.” Id.13 In short, because the preventive services coverage regulations “are several degrees removed from imposing a substantial burden on [Autocam], and one further degree removed from imposing a substantial burden on [the Kennedys],” id. at *7, the Court should dismiss plaintiffs’ RFRA claim even assuming secular companies like Autocam can exercise religion.
ii. Even if there were a substantial burden on religious exercise, the regulations serve compelling government interests and are the least restrictive means to achieve those interests 1. The regulations significantly advance compelling governmental interests in women’s health and equality
Even if plaintiffs could demonstrate a substantial burden on their religious exercise, they would not prevail because the regulations are justified by two compelling governmental interests, and are the least restrictive means to achieve those interests. First, “the Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.” Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998) (concluding that “public health is a compelling government interest”); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995) (“The State . . . has a compelling interest in the health of expectant mothers and the safe delivery of newborn babies.”) (citing Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992)).
There can be no question that this compelling interest in the promotion of public health is furthered by the regulations at issue here. As explained in the interim final regulations, the
13 That Autocam’s group health plan is self-insured, see Pls.’ Br. at 6, does not distinguish this case from O’Brien. It remains true that “[t]he burden of which plaintiffs complain” rests on “a series of independent decisions by health care providers and patients covered by [Autocam’s plan].” O’Brien, 2012 WL 4481208, at *6. And a group health plan is a separate legal entity from the sponsoring employer even if the plan is self-insured. See 29 U.S.C. § 1132(d).
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primary predicted benefit of the regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. at 41,733; see also 77 Fed. Reg. at 8728. Indeed, “[b]y expanding coverage and eliminating cost sharing for recommended preventive services, these interim final regulations could be expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733. Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven in many cases to have negative health consequences for both women and a developing fetus. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103. Contraceptive coverage also helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103. In fact, “pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.” Id. at 103-04.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations. As the Supreme Court explained in Roberts, there is a fundamental “importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” 468 U.S. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA gender-specific preventive health services for women, Congress made clear that the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “women have different health needs than men, and these needs often generate additional costs. Women of childbearing age
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spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009). These costs result in women often forgoing preventive care. See, e.g., 155 Cong. Rec. S12265-02, S12274. Accordingly, this disproportionate burden on women creates “financial barriers . . . that prevent women from achieving health and well-being for themselves and their families.” IOM REP. at 20. Thus, Congress intended to equalize health care for women and men in the area of preventive care, including the provision of family planning services for women. See, e.g., 155 Cong. Rec. S12265-02, S12271; see also 77 Fed. Reg. at 8728. Congress’s attempt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribute to the same degree as men as healthy and productive members of society, furthers a compelling governmental interest. Cf. Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
Plaintiffs miss the point when they attempt to minimize the magnitude of the government’s interests by arguing that contraception is widely available and even subsidized for certain low-income individuals. See Pls.’ Br. at 11. Although a majority of employers cover FDA-approved contraceptives, see IOM REP. at 109, many women forgo preventive services, including certain reproductive health care, because of cost-sharing imposed by their health plans, see id. at 19-20, 109. The challenged regulations eliminate that cost-sharing. 77 Fed. Reg. at 8728. And, of course, the government’s interest in ensuring access to contraceptive services is particularly compelling for women employed by companies that do not currently offer such coverage, like Autocam. Taking into account the “particular claimant whose sincere exercise of religion is [purportedly] being substantially burdened,” O Centro, 546 U.S. at 430-31, exempting Autocam and other similar companies from the obligation of their health plans to cover contraceptive services without cost-sharing would remove their employees (and their employees’ families) from the very protections that were intended to further the compelling interests recognized by Congress. See, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987) (“Where, as here, the purpose of granting the benefit is squarely at odds with the creation of an exception, we think the government is entitled to point out that the creation of an exception does
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violence to the rationale on which the benefit is dispensed in the first instance.”), overruled in part on other grounds by Navajo Nation v. USFS, 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc).
Each woman who wishes to use recommended contraceptives and who works for Autocam or a similarly situated company (and each woman who is a covered spouse or dependent of an employee of such a company) – or, for that matter, any woman in such a position in the future – is significantly disadvantaged when the company chooses to provide a plan that fails to cover such services without cost-sharing. See United States v. Friday, 525 F.3d 938, 956 (10th Cir. 2008) (noting that the government’s interest is still compelling even when the impact is limited in scope). As revealed by the IOM Report, those women would be, as a whole, less likely to use contraceptive services in light of the financial barriers to obtaining them and would then be at risk of unhealthier outcomes, both for themselves and their newborn children. IOM REP at 102-03. They also would have unequal access to preventive care and would be at a competitive disadvantage in the workforce due to their inability to decide for themselves if and when to bear children.14 These harms would befall female employees (and covered spouses and dependents) who do not necessarily share the company owners’ religious beliefs and might not have been aware of those beliefs when they joined the secular company. Plaintiffs’ desire not to provide a health plan that permits such individuals to exercise their own choice must yield to the government’s compelling interest in avoiding the adverse and unfair consequences that such individuals would suffer as a result of the company’s decision to impose the company owners’ religious beliefs on them. See Lee, 455 U.S. at 261 (noting that a religious exemption is improper where it “operates to impose the employer’s religious faith on the employees”); S. Ridge Baptist Church v. Indus. Comm’n, 911 F.3d 1203, 1209, 1211 n.6 (6th Cir. 1990).
14 The allegations in plaintiffs’ Complaint regarding the pre- and postnatal care available to Autocam’s employees, see Compl. ¶ 38, do not advance plaintiffs’ RFRA claim. As explained in the IOM Report, unwanted or unplanned pregnancies are associated with adverse health outcomes for a variety of reasons unrelated to a lack of access to preand post-natal care. IOM REP. at 103. Thus, access to such care, while certainly desirable, does not fully address the compelling interest in women’s and infants’ health underlying the preventive services coverage regulations. And access to pre- and postnatal care does little to advance the Government’s compelling interest in gender equality. Nor does the care available to Autocam’s employees reveal anything about the care provided to the employees of similarly situated entities.
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Plaintiffs argue that the interests underlying the regulations cannot be considered compelling because many health plans are exempted from the regulations. See Pls.’ Br. at 11-13. But this is not a case where under-inclusive enforcement of a law suggests that the government’s “supposedly vital interest” is not really compelling. Lukumi, 508 U.S. at 546-47. Nor do the “exemptions” mentioned by plaintiffs change the fact that the regulations are the least restrictive means of advancing the government’s compelling interests. The “exemptions” referred to by plaintiffs are not exemptions from the preventive services coverage regulations at all, but are instead provisions of the ACA that exclude individuals and entities from other requirements imposed by the ACA. They reflect the government’s attempts to balance the compelling interests underlying the challenged regulations against other significant interests supporting the complex administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions.”); United States v. Winddancer, 435 F. Supp. 2d 687, 695-98 (M.D. Tenn. 2006) (recognizing that the regulations governing access to eagle parts “strike a delicate balance” between competing compelling interest). And unlike the exemption plaintiffs seek for all employers that object to the regulations on religious grounds, the existing exemptions do not undermine the government’s interests in any significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church, 911 F.2d at 1208-09 (rejecting the plaintiff’s argument that the existence of exemptions indicates that a law is the not the least restrictive means of achieving a compelling interest where the exemptions do not undermine that interest).
For example, the grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. The grandfathering provision reflects Congress’s attempts to balance competing interests –
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specifically, the interest in spreading the benefits of the ACA, including those provided by the preventive services coverage provision, and the interest in maintaining existing coverage and easing the transition into the new regulatory regime established by the ACA – in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,540, 34,546 (June 17, 2010).
The incremental transition of the marketplace into the ACA administrative scheme does nothing to call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is projected that more group health plans will transition to the requirements under the regulations as time goes on. Defendants estimate that, as a practical matter, a majority of group health plans will lose their grandfather status by 2013. See id. at 34,552. Thus, any purported damage to the compelling interests underlying the regulations will be quickly mitigated, which is in stark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to impose it on everyone all at once despite competing interests, but plaintiffs offer no support for such an untenable proposition.
Second, 26 U.S.C. § 4980H9(c)(2) does not, as plaintiffs assert, exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. at 46,622 n.1. Instead, it excludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2014, such employers are not subject to assessable payments if they do not provide health coverage to their full-time employees and certain other criteria are met.15 See 26 U.S.C. § 4980H(c)(2). Employees of these small businesses can get their health insurance through other ACA provisions, primarily premium tax credits and health insurance Exchanges, and the coverage they receive will include all preventive services, including contraception.16 In addition, small businesses that choose to
15 In contrast, beginning in 2014, certain large employers face assessable payments if they fail to provide health coverage for their employees under certain circumstances. 26 U.S.C. § 4980H. 16 For this reason, even if there were some connection between the preventive services coverage provision and the employer responsibility provision, excluding small employers from the employer responsibility provision would not
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offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. And there is reason to believe that many small employers will continue to offer health coverage to their employees, because the ACA, among other things, provides for tax incentives for small businesses to encourage the purchase of health insurance. See id. § 45R.
Third, although 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized religious sect or division thereof” who, on the basis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive services coverage regulations. See also id. § 1402(g). The minimum coverage provision will require certain individuals who fail to maintain a minimum level of health insurance to pay a tax penalty beginning in 2014. It provides no exemption from the preventive services coverage regulations, as it only excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide preventive services coverage to their participants. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption sought by plaintiffs, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61.
Furthermore, exempting these discrete and “readily identifiable,” id. at 260-61, classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a woman who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,”
undermine the government’s compelling interest in ensuring that employees have access to recommended preventive services. As noted, employees of small employers that do not provide health coverage will be able to obtain health coverage through health insurance exchanges, and, if eligible, receive premium tax credits and cost-sharing reductions to assist them in affording such coverage. See 42 U.S.C. § 18021; id. § 18031(d)(2)(B)(i). Because the preventive services coverage requirement applies to the health plans being offered through the Exchanges, the coverage individuals buy there will necessarily cover recommended contraceptive services. Id. § 300gg-13(a).
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26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U.S.C. § 5000A(d)(2)(B)(ii) would not utilize health coverage – including contraceptive coverage – even if it were offered.
The only true exemption from the preventive services coverage regulations cited by plaintiffs is the exemption for “religious employer[s],” 45 C.F.R. § 147.130(a)(1)(iv). But there is a rational distinction between the narrow exception currently in existence and the expansion plaintiffs seek. A “religious employer” is an employer that, among other things, has the “inculcation of religious values” as its purpose and “primarily employs persons who share the religious tenets of the organization.” Id. Thus, the exception does not undermine the government’s compelling interests. It anticipates that the impact on employees of exempted organizations will be minimal, given that any religious objections of the exempted organizations are presumably shared by most of the individuals actually making the choice as to whether to use contraceptive services. See 77 Fed. Reg. at 8728.17
The same is not true for Autocam, which presumably does not (and cannot) discriminate based upon anyone’s religious beliefs when hiring, and therefore almost certainly employs many individuals who do not share the Kennedys’ religious beliefs. Should plaintiffs be permitted to extend the protections of RFRA to any employer whose owners or shareholders object to the operation of the regulations, it is difficult to see how the regulations could continue to function or be enforced in a rational manner. See O Centro, 546 U.S. at 435. Providing for voluntary participation among for-profit, secular employers would be “almost a contradiction in terms and difficult, if not impossible, to administer.” Lee, 455 U.S. at 258. We are a “cosmopolitan nation
17 Elsewhere in their brief, plaintiffs allude to “waivers of portions of the [ACA],” Pls.’ Br. at 5 n.1, citing documents referring to the annual limits waiver program. See 42 U.S.C. § 300gg-11; 45 C.F.R. § 147.126. The annual limits provision of the ACA restricts annual dollar limits on essential health benefits provided by health insurance issuers and group health plans. See id. The Secretary of HHS had the authority to waive these restrictions for plans if compliance “would result in a significant decrease in access to benefits under the plan or health insurance coverage or would significantly increase premiums for the plan or health insurance coverage.” 45 C.F.R. § 147.126(d)(3). These waivers are not related to the preventive services coverage regulations, and those nonexempt, non-grandfathered plans that received an annual limits waiver are still required to provide the required preventive services coverage.
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made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to countless medical services. If any organization, no matter the high degree of attenuation between the mission of that organization and the exercise of religious belief, were able to seek an exemption from the operation of the preventive services coverage regulations, it is difficult to see how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women. Indeed, women who receive their health coverage through corporations like Autocam would be subject to negative health and employment outcomes because they had obtained employment with a company that imposes its owners’ religious beliefs on their health care needs. See 77 Fed. Reg. at 8728.
2. The regulations are the least restrictive means of advancing the government’s compelling interests
The regulations, moreover, are the least restrictive means of furthering the government’s dual, albeit intertwined, interests. When determining whether a particular regulatory scheme is “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme – or whether the scheme can otherwise be modified – without undermining the government’s compelling interest. See S. Ridge Baptist Church, 911 F.3d at 1206 (describing the least restrictive means test as “the extent to which accommodation of the defendant would impede the state’s objectives”); United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (same); see also, e.g., United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011); New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 946 (1st Cir. 1989) (Breyer, J.).
Instead of explaining how Autocam and similarly situated secular companies could be exempted from the preventive services coverage regulations without significant damage to the government’s compelling interests in public health and gender equality, plaintiffs conjure up several new regulatory schemes that they claim would be less restrictive. See Pls.’ Br. at 12.
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Rather than suggesting modifications to the current employer-based system that Congress enacted, see generally H.R. Rep. No. 111-443, pt. II, at 984-86 (2010) (explaining why Congress chose to build on the employer-based system), plaintiffs would have the system turned upsidedown to accommodate the Kennedys’ beliefs at enormous administrative and financial cost to the government. But, just because plaintiffs can devise an entirely new legislative and administrative scheme does not make that scheme a feasible less restrictive means. See Wilgus, 638 F.3d at 1289 (“Not requiring the government to do the impossible – refute each and every conceivable alternative regulation scheme – ensures that scrutiny of federal laws under RFRA is not strict in theory, but fatal in fact.” (quotation omitted)); New Life Baptist Church Acad., 885 F.2d at 946 (“[A] judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’” (internal citation and quotation marks omitted)).
In effect, plaintiffs want the government “to subsidize private religious practices,” Catholic Charities of Sacramento, 85 P.3d at 94, by expending significant resources to adopt an entirely new legislative or administrative scheme or fundamentally alter an existing one. But a proposed alternative scheme is not an adequate alternative – and thus not a viable less restrictive means to achieve the compelling interest – if it is not “feasible” or “plausible.” See, e.g., New Life Baptist, 885 F.2d at 947 (considering “in a practical way” whether proffered alternative would “threaten potential administrative difficulties, including those costs and complexities which . . . may significantly interfere with the state’s ability to achieve its . . . objectives”); Graham, 822 F.2d at 852 (“To allow an exception for Scientologists is, we think, possible; but it is not feasible.”). In determining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011) (rejecting proffered alternative because it “would place an unreasonable burden” on the government); New Life Baptist, 885 F.2d at 947 (“[T]he Court has made clear that administrative considerations play an important role in determining whether or not the state can follow its preferred means.”). Plaintiffs’ alternatives would impose
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considerable new costs and other burdens on the government and would otherwise be impractical. See Lafley, 656 F.3d at 942; New Life Baptist, 885 F.2d at 947; see also Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009).18
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See, e.g., Murphy v. State of Ark., 852 F.2d 1039, 1042-43 (8th Cir. 1988) (finding that state’s means was least restrictive where no alternative means would achieve its interests). As discussed above, Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to utilize the existing employerbased system. The anticipated benefits of the preventive services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost sharing – an attribute a few of plaintiffs’ alternatives admittedly share – but also to the fact that these services will be available through the existing employer-based system of health coverage through which women will face minimal logistical and administrative obstacles to receiving coverage of their care. Plaintiffs’ alternatives, on the other hand, have none of these advantages. They would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would almost certainly require women to take steps to find out about the availability of and sign up for the new benefit, thereby ensuring that fewer women would take advantage of it. Nor do plaintiffs offer any suggestion as to how these programs could be integrated with the employer-based system or how women would obtain government-provided preventive services in practice. Thus, plaintiffs’ proposals – in addition to raising myriad administrative and logistical difficulties – are less likely to achieve
18 In addition, plaintiffs’ challenge is to regulations promulgated by defendants, not to the ACA itself. But it is the ACA that requires that recommended preventive services be covered without cost-sharing through the existing employer-based system. See H.R. Rep. No. 111-443, pt. II, at 984-86. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives, the statute would prevent them from doing so.
28

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the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means.19
c. Plaintiffs’ First Amendment claims are meritless
i. The regulations do not violate the Free Exercise Clause For the reasons explained above, a for-profit, secular employer like Autocam does not
engage in any exercise of religion protected by the First Amendment. Nevertheless, even if it
did, the preventive services coverage regulations do not violate the Free Exercise Clause because
they are neutral laws of general applicability. That was precisely the holding in O’Brien, 2012
WL 4481208, at *7-9, and the highest courts of two states have also rejected free exercise claims
nearly identical to the one raised by plaintiffs here in cases challenging state laws that are similar
to the preventive services coverage regulations. See Catholic Charities of Diocese of Albany v.
19 Plaintiffs rely heavily on Newland v. Sebelius, Civil Action No. 1:12-cv-1123-JLK, 2012 WL 3069154 (D. Colo. July 27, 2012), appeal docketed, No. 12-1380 (10th Cir. Sept. 26, 2012), in arguing that they are likely to succeed on their RFRA claim. But the court in Newland explicitly declined to address defendants’ claim that a for-profit, secular company cannot exercise religion within the meaning of RFRA, concluding that the question needed “more deliberate investigation.” Id. at *6. For the reasons explained above, see supra 8-9, this Court cannot enter a preliminary injunction without addressing this issue. Moreover, defendants believe the Newland court’s compelling interest and least restrictive means analysis is flawed for the reasons explained above.
Similarly, the recent ruling in Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012), does not help plaintiffs, as the Legatus court also declined to decide whether a for-profit corporation can assert Free Exercise or RFRA rights. Id. at *4-5. In Legatus, the court preliminarily enjoined the government from enforcing the contraceptive coverage requirement against a for-profit company and its owner. The court appropriately recognized that, with respect to First Amendment and RFRA claims, the likelihood of success on the merits and irreparable harm prongs of the preliminary injunction analysis merge such that, to obtain a preliminary injunction, a plaintiff must establish a likelihood of success on the merits. 2012 WL 5359630, at *3. Nevertheless, the court entered a preliminary injunction without determining that plaintiffs were likely to succeed on the merits. Id. at *13. Indeed, the court concluded that “[p]laintiffs . . . have [not] shown a strong likelihood of success on the merits.” Id.; see also Adams v. City of Marshall, No. 4:05-cv-62, 2006 WL 2095334, at *1 (W.D. Mich. 2006) (“Both parties have a possibility of success, but that is not enough to satisfy Plaintiffs’ obligation to show a ‘substantial’ likelihood of success.”). Moreover, in its substantial burden analysis, the court merely “assume[d]” that plaintiffs could demonstrate a substantial burden on their religious exercise, observing that “courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims.” Legatus, 2012 WL 5359630, at *6. This approach, however, reads the substantial burden requirement right out of RFRA, which a court may not do. As the O’Brien court explained, Congress’s use of the term “substantial” means that “the burden on religious exercise must be more than insignificant or remote.” 2012 WL 4481208, at *5. For these reasons, and those set forth above, the government respectfully maintains that Legatus was incorrectly decided as to the for-profit company and its owner.
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Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006); Catholic Charities of Sacramento, 85 P.3d at 81-87. This Court should do the same.
A neutral and generally applicable law does not violate the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Smith, 494 U.S. at 879. A law is neutral if it does not target religiously motivated conduct but rather has as its purpose something other than the disapproval of a particular religion, or of religion in general. Lukumi, 508 U.S. at 533, 545. A law is generally applicable if it does not selectively impose burdens only on conduct motivated by religious belief. Id. at 535-37, 545. Unlike such selective laws, these regulations are neutral and generally applicable. They do not target religiously motivated conduct. Their purpose is to promote public health and gender equality by increasing access to and utilization of recommended preventive services, including those for women. See O’Brien, 2012 WL 4481208, at *7 (holding that the “regulations are neutral”). The regulations reflect expert recommendations about the medical need for the services, without regard to any religious motivations for or against such services. As the IOM Report shows, this purpose is entirely secular in nature. IOM REP. at 2-4, 7-8; Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 275 (3d Cir. 2007).
Plaintiffs contend that the regulations are not generally applicable because they contain certain categorical exceptions. Pls’ Br. at 14. But the existence of “express exceptions for objectively defined categories of [entities],” like the ones plaintiffs reference, does not negate a law’s general applicability. Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); see O’Brien, 2012 WL 4481208, at *8 (rejecting identical argument); Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10th Cir. 2006) (refusing to “interpret Smith as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption”); Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 961 (9th Cir. 1991).
30

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Although the regulations refer to religion in the context of exempting certain religious employers from the requirement to cover contraceptive services, this reference does not, as plaintiffs suggest, see Pls.’ Br. at 15, destroy the regulations’ neutrality. See O’Brien, 2012 WL 4481208, at *8. Any burden on plaintiffs’ religious beliefs – and there is none – would “arise[] not from the religious terminology used in the exemption, but from the generally applicable requirement to provide coverage for contraceptives.” Catholic Charities of Sacramento, 85 P.3d at 83. Moreover, contrary to plaintiffs’ suggestion, see Pls.’ Br. at 14-15, the First Amendment does not prohibit the government from distinguishing between organizations based on their purpose and composition; it prohibits the government from favoring one religion, denomination, or sect over another. See Lukumi, 508 U.S. at 533, 535; cf. Larson v. Valente, 456 U.S. 228, 244 (1982) (explaining that “one religious denomination cannot be officially preferred over another” (emphasis added)); Gillette v. United States, 401 U.S. 437, 450-51 (1971). Therefore, not providing an exemption for secular companies does not destroy neutrality. See O’Brien, 2012 WL 4481208, at *8; cf. Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 673 (1970) (upholding tax exemption for realty owned by associations organized exclusively for religious purposes); Amos, 483 U.S. at 344 (upholding Title VII’s exemption for religious organizations).
The regulations are also generally applicable because they do not apply “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545. They apply to all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage and do not qualify for the religious employer exemption. See O’Brien, 2012 WL 4481208, at *8 (“The regulations in this case apply to all employers not falling under an exemption, regardless of those employers’ personal religious inclinations.”). Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious organizations ‘but almost no
31

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 43 of 49 Page ID#208
others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997).20
Plaintiffs also maintain that defendants have created a system of individualized exemptions. Pls.’ Br. at 14. To warrant strict scrutiny, however, a system of individualized exemptions must be one that enables the government to make a subjective, case-by-case inquiry of the reasons for the relevant conduct, and the government must utilize that system to grant exemptions for secular reasons but not for religious reasons. Smith, 494 U.S. at 884. Plaintiffs point to no such system with respect to the challenged regulations, and there is none.21
The regulations are no different from other neutral and generally applicable laws governing employers that have been upheld against free exercise challenges. See United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000) (upholding federal employment tax laws because they were “not restricted to [the church] or even religion-related employers generally, and there [was] no indication that they were enacted for the purpose of burdening religious practices”); Am. Friends Serv. Comm. Corp., 951 F.2d at 960 (upholding law that required employers to verify the immigration status of their employees); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same). Because the regulations are neutral laws of general applicability, plaintiffs’ free exercise claim is without merit.22
ii. The regulations do not violate the Free Speech Clause
20 This case is a far cry from Lukumi, 508 U.S. 520, on which plaintiffs rely. See Pls.’ Br. at 13-14. In Lukumi, the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited few, if any, animal killings other than Santeria sacrifices, id. at 535-36. There is no evidence of a similar targeting of religious practice here. 21 Plaintiffs misunderstand the regulations when they assert that HRSA has “unbridled discretion” to grant or deny an exemption to an employer that meets the religious employer exemption criteria. Pls.’ Br. at 14-15. Any employer that meets the criteria is not required to cover contraceptive services. See HRSA Guidelines. 22 Even if the regulations were not neutral and generally applicable, they would not violate the Free Exercise Clause because they satisfy strict scrutiny. See supra, at 19-30.
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The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights (“FAIR”), 547 U.S. 47, 61 (2006). But the preventive services coverage regulations do not require plaintiffs – or any other person, employer, or other entity – to say anything. Contrary to plaintiffs’ assertion, see Pls.’ Br. at 16, the regulations do not require plaintiffs themselves to provide any education or counseling.23 Thus, the regulations are not like the law at issue in Wooley v. Maynard, which compelled speech. 430 U.S. 705, 707 (1977) (requiring residents to display license plate that read “Live Free or Die”); see Pls.’ Br. at 15-16. Plaintiffs here are not required to speak at all. Nor do the regulations limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) or the regulations. Indeed, under the regulations, plaintiffs may encourage Autocam’s employees not to use contraceptive services. The regulations thus regulate conduct, not speech.
Moreover, the conduct required by the regulations is not “inherently expressive,” such that it is entitled to First Amendment protection. FAIR, 547 U.S. at 66; see O’Brien, 2012 WL 4481208, at *12. An employer that provides a health plan that covers contraceptive services, along with numerous other medical items and services, because it is required by law to do so is not engaged in the sort of conduct the Supreme Court has recognized as inherently expressive. Compare FAIR, 547 U.S. at 65-66 (making space for military recruiters on campus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message), with Hurley
23 Rather, if Autocam decides to offer a non-grandfathered health plan to their employees, the plan must cover the costs of any education and counseling provided by a health care provider to its participants. It is the health care provider who will be speaking, not plaintiffs. And the regulations do not purport to regulate the content of the education or counseling provided – that is between the patient and her health care provider. See HRSA Guidelines (requiring coverage to include “patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider). Therefore, as the O’Brien court explained, this case does not involve the sort of political and ideological causes at issue in the compelled-subsidy cases cited by plaintiffs. See Pls.’ Br. at 16 (citing Keller v. State Bar of Cal., 496 U.S. 1 (1990), and Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)); O’Brien, 2012 WL 4481208, at *12 (distinguishing Keller and Abood). Those cases do not stand for the proposition that an employer may refuse to provide coverage for medical services because, during the course of a medical visit, a provider may say something with which the employer disagrees. Plaintiffs’ theory would preclude virtually all government efforts to regulate health coverage, as a medical visit almost invariably involves some communication between a patient and a health care provider, and there may be many instances in which the entity providing the health coverage disagrees with the content of this communication. See O’Brien, 2012 WL 4481208, at *12.
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Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 45 of 49 Page ID#210
v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557, 568-70 (1995) (openly gay, lesbian, and bisexual group marching in parade is expressive conduct), and Texas v. Johnson, 491 U.S. 397, 406 (1989) (flag burning during political demonstration is expressive conduct), and Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-14 (1969) (wearing black armbands to show disapproval of Vietnam hostilities is expressive conduct). Because the regulations do not compel any speech or expressive conduct, they do not violate the Free Speech Clause. See O’Brien, 2012 WL 4481208, at *11-13 (rejecting identical claim because “the government has not compelled plaintiffs to speak, to subsidize speech, or to subsidize expressive conduct”); Catholic Charities of Sacramento, 85 P.3d at 89 (upholding similar California law against free speech challenge because “a law regulating health care benefits is not speech”).
Plaintiffs’ cursory expressive association claim is similarly flawed. The regulations do not interfere in any way with the composition of Autocam’s workforce. See Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010) (“A government action does not interfere with the right of expressive association unless it directly or indirectly interferes with group membership.” (emphasis added)); e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as scoutmaster). The regulations do not force Autocam to hire employees it does not wish to hire (although Title VII prohibits Autocam from religious discrimination in hiring, as it is not a religious corporation). The Kennedys, moreover, are free to associate to voice their disapproval of the use of contraception and the regulations. If the statute at issue in FAIR, which required law schools to allow military recruiters on campus if other recruiters were allowed on campus, did not violate the law schools’ right to expressive association, 547 U.S. at 68-70, neither do the preventive services coverage regulations violate plaintiffs’ right. See also Diocese of Albany, 859 N.E.2d at 465 (upholding similar New York law against free speech and free association challenges); Miller, 622 F.3d at 538.
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II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC
Although “[t]he loss of First Amendment freedoms,” or a violation of RFRA, “for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976), in this case, plaintiffs have not shown that the challenged regulations violate their First Amendment or RFRA rights, so there has been no “loss of First Amendment freedoms” for any period of time. Id. In this respect, the merits and irreparable injury prongs of the analysis merge together, and plaintiffs cannot show irreparable injury without also showing a likelihood of success on the merits, which they cannot do. See McNeilly, 684 F.3d at 621 (“Because McNeilly does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”). Nor can plaintiffs claim irreparable harm from their alleged need to prepare upcoming health plans, see Pls.’ Br. at 17, for any purported planning emergency is of plaintiffs’ own making. As the Court noted in denying plaintiffs’ request for expedited consideration of their motion for preliminary injunction, plaintiffs have “create[d] the need for prompt action by delaying a filing that could reasonably have been brought earlier.” Order at 3, Oct. 12, 2012, ECF No. 12.
Indeed, plaintiffs’ delay further counsels against a finding of irreparable harm. The contraceptive coverage requirement was issued on August 1, 2011. Yet plaintiffs waited fourteen months – until October 10, 2012 – to seek preliminary injunctive relief. Such a substantial and unexplained delay seriously undermines plaintiffs’ claim of irreparable harm. See Huron Mountain Club v. U.S. Army Corps of Eng’rs, No. 2:12-CV-197, 2012 WL 3060146, at *14 (W.D. Mich. 2012) (“‘Since an application for preliminary injunction is based on an urgent need for the protection of [a] Plaintiff’s rights, a long delay in seeking relief indicates that speedy action is not required.’” (quoting Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th Cir.1989)); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunctive relief and noting that a delay of forty-four days after final
35

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regulations were issued was “inexcusable”).24 On the other hand, issuing a preliminary injunctive would harm the government and the
public. With regard to the government, “there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 296 (6th Cir. 1998) (indicating that granting an injunction against the enforcement of a likely constitutional statute would harm the government). Enjoining the regulations as to a for-profit, secular corporation after January 2013 would undermine the government’s ability to achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women and men so that women who choose to do so can be a part of the workforce on an equal playing field with men.25 It would also be contrary to the public interest to deny the employees of Autocam the benefits of the preventive services coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”). Because Autocam is a for-profit, secular employer, many of its employees undoubtedly do not share the Kennedys’ religious beliefs. Those employees should not be denied the benefits of receiving a health plan through their employer that covers contraceptive services. Enjoining the government from enforcing the
24 See also, e.g., Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (“[T]he failure to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury.”) (internal quotation marks and citation omitted); Kan. Health Care Ass’n, Inc. v. Kan. Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536, 1543–44 (10th Cir. 1994) (“As a general proposition, delay in seeking preliminary relief cuts against finding irreparable injury.” (quotations omitted)); Quince Orchard Valley Citizens Ass’n, 872 F.2d at 80 (“Equity demands that those who would challenge the legal sufficiency of administrative decisions . . . do so with haste and dispatch.”); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1377 (9th Cir. 1985) (“[L]ong delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm.”). 25 Plaintiffs miss the mark with their suggestion that the government will not be harmed by the entry of a preliminary injunction here. Defendants have already refuted plaintiffs’ first contention, see Pls. Br. at 17, that the preventive services coverage regulations are not generally applicable. See supra, at 30-33. And the fact that a preliminary injunction was entered as to one employer in one unrelated case, see Pls. Br. at 17, in no way undermines the harm to the government of enjoining the regulations in this case, especially given that plaintiffs have failed to show a likelihood of success on the merits of their RFRA or Free Exercise claim.
36

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regulations, the purpose of which is to eliminate these burdens, 75 Fed. Reg. at 41,733; see also 77 Fed. Reg. at 8728, as to plaintiffs would thus harm the public. See, e.g., Stormans, 586 F.3d at 1139 (vacating preliminary injunction and noting that “[t]here is a general public interest in ensuring that all citizens have timely access to lawfully prescribed medications”).26 Any potential harm to plaintiffs resulting from their desire not to provide contraceptive coverage is thus outweighed by the significant harm an injunction would cause to the public.27
CONCLUSION For the foregoing reasons, this Court should deny plaintiffs’ motion for a preliminary injunction. Respectfully submitted this 7th day of November, 2012,
STUART F. DELERY Acting Assistant Attorney General
IAN HEATH GERSHENGORN Deputy Assistant Attorney General
PATRICK A. MILES, JR. United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director
/s/ Jacek Pruski
26 Having failed to show a likelihood of success on the merits, plaintiffs cannot claim that an injunction nevertheless serves the public interest because plaintiffs may otherwise elect to cut coverage for Autocam’s employees. See Pls.’ Br. at 18-19. Not only is that assertion unsupported, see Leary, 228 F.3d at 739, but the consequences of such a potential private decision – even if regrettable for Autocam’s employees – are not cognizable under the public interest prong. See Jones, 569 F.3d at 278 (“In First Amendment cases, the determination of where public interest lies . . . is dependent on a determination of the likelihood of success on the merits . . . because if the regulation in question is likely to be deemed constitutional, the public interest will not be harmed by its enforcement.” (emphasis added, internal citation and quotation marks omitted)). 27 Plaintiffs rely on the Newland court’s determination that the equities tipped in favor of the plaintiffs in that case. Pls.’ Br. at 18. But the Newland court based its assessment of the equities on the “potential” or “possible” violation of plaintiffs’ RFRA rights. 2012 WL 3069154, at *4. As explained above, see, e.g., supra, at 8-9, that was error.
37

Case 1:12-cv-01096-RJJ Doc #17 Filed 11/09/12 Page 49 of 49 Page ID#214 JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendants
38

 
 Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 1 of 11 Page ID#605

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

AUTOCAM CORPORATION, etal, Plaintiffs,
v. KATHLEEN SEBELIUS, et al,
Defendants

Case No. Hon.

12-cv-01096 ROBERT J. JONKER

PLAINTIFFS' SUPPLEMENTAL BRIEF ON ANTI-INJUNCTION ACT SUPPORTING MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION
On December 4, 2012, the Court issued an order instructing the parties to be prepared to
address three issues at the hearing set for December 17, 2012. To assist the Court in conducting
this hearing, the Plaintiffs offer this supplemental brief answering the three questions.
Analysis of Question 1
Question 1: Does the Anti-Injunction Act, 26 U.S.C. § 7421(a), apply to bar or limit relief the Court has power to order in this case to the extent Plaintiffs are seeking relief from the operation of any financial obligation under 26 U.S.C. § 4980D. The Court recognizes that the United States Supreme Court has determined that a challenge to the "shared responsibility payment" of the individual mandate in 26 U.S.C. § 5000A is subject to challenge despite the AntiInjunction Act. Natl'IFed'n oflndep. Businesses v. Sebelius, U.S. , 132 S. Ct. 2566, 2582-84, 183 L.Ed. 2d 450 (2012). However, as the Supreme Court noted, Congress described the "shared responsibility payment" under section 5000A as a "penalty," not a tax. Id. at 2583. In contrast, the payment imposed under section 4980D is, by the description of Congress, a tax, not a penalty.
No, the Anti-Injunction Act ("AIA") does not apply for several reasons. The Plaintiffs
are challenging the HHS Mandate itself, and not just the monetary penalty imposed by 26 U.S.C.

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 2 of 11 Page ID#606

§ 4980D.1 Furthermore, Section 4980D is a penalty, rather than a tax, for A I A purposes.

Congress labeled Section 4980D as a "penalty," structured it based on fault, and made the

penalty so substantial that forcing compliance with the regulation rather than revenue to the

government is the only possible goal. Under Sebelius, a clearly expressed congressional intent to

treat a statute as a penalty, rather than a revenue-raising tax, would prevent the application ofthe

AIA, but the indicia of legislative intent show Section 4980D is a penalty. To the extent Section

4980D is subject to the AIA at all, the Religious Freedom Restoration Act ("RFRA") controls

over the A I A as the specific statute governing this type of injunction. And even i f the A I A is

controlling, the judicially-created exception bases on irreparable harm and success on the merits

permits the Court to issue an injunction. These issues are analyzed below.

I.

The AIA does not apply to Section 49801).

A. Because Congress created the AIA to protect tax collection, its application is limited to statutes that manifest a congressional intent to raise tax revenue rather than regulate and penalize conduct.

The AIA, 26 U.S.C. § 7421(a), is a procedural statute with a single purpose: protecting

tax collection from judicial meddling. "The manifest purpose of § 7421(a) is to permit the

United States to assess and collect taxes alleged to be due without judicial intervention, and to

require that the legal right to the disputed sums be determined in a suit for refund." Enochs v.

Williams Packing & Nav. Co. 370 U.S. 1, 7 (1962); see also NFIB v. Sebelius, 132 S.Ct. 2566,

2583 (2012) ("This statute protects the Government's ability to collect a consistent stream of

revenue, by barring litigation to enjoin or otherwise obstruct the collection of taxes."). The A I A

1 This lawsuit concerns a challenge to the HHS Preventative Care Mandate, and 45 C.F.R. § 147.130 (the "HHS Mandate"). (Verif. Comp. at \ \ 2-3.) As detailed below, the HHS Mandate itself is a direct requirement that the Plaintiffs provide drugs and services, which is enforced through multiple mechanisms. Because the Court can enjoin the application of this Mandate without enjoining the penalty of Section 4980D, the A I A does not apply.
2

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is to be read literally and applies to "truly revenue-raising tax statutes." Bob Jones Univ. v. Simon, 416 U.S. 725, 736-43 (1974).
The Supreme Court recently analyzed in the AIA in Sebelius. 132 S.Ct. at 2583. The Supreme Court detennined that the A I A did not apply to the individual mandate because Congress had characterized the "individual responsibility payment" levied on taxpayers for failure to purchase insurance as a "penalty." Id. at 2583-93. Sebelius thus found that congressional intent could show that a statute was outside the reach of the AIA. Although Sebelius does not hold that a label alone controls, in that case, the Court did defer to Congress where it had plainly indicated an intent that the payment be treated as a penalty not a tax for the purpose of the AIA.
Sebelius did not make new law on this point. Courts have always looked to whether the statutory language reveals a legislative intent to regulate or a legislative intent to raise revenue when determining whether a measure was properly characterized as a tax within the meaning of the AIA. In doing so, courts have recognized that the A I A does not apply simply because Congress has used the label "tax" in a statute when the effect of the statute (and thus its intent) was to regulate rather than raise revenue. For example, the Seventh Circuit found that the "Marijuana Transfer Tax" was "penal in nature, and not enacted as a revenue-raising statute." Robertson v. United States, 582 F.2d 1126, 1127 (7th Cir. 1978). This is so even though Congress gave it the title "tax." Id; see also Tovar v. Jarecki, 173 F.2d 449, 451 (7th Cir. 1949) (marijuana). Similarly, the AIA did not bar a suit to enjoin enforcement of a "tax" for violating the Prohibition Act, which was really a penalty and not a tax. Lipke v. Lederer, 259 U.S. 557, 562(1922).
3

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 4 of 11 Page ID#608
Precedent concerning the Tax Injunction Act ("TIA"), 28 U.S.C. § 1341, features this same focus on whether the statutory language reveals a legislative intent to regulate or to raise revenue.2 Under the TIA, "the label given by a state for an assessment or charge is not dispositive of its character." Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 762 (10th Cir. 2010). The "touchstone" of a court's "inquiry is the purpose of the assessment." Id. at 761. TMs includes an examination of "the incentive structure created by a levy." Id. For TIA purposes, "an assessment is a tax when its purpose is to raise revenue, while levies assessed for regulatory or punitive purposes, even though they may also raise revenues, are generally not 'taxes.'" Id. (quotation omitted). Thus, a "regulatory penalty" is "not a tax, because its purpose is to regulate behavior rather than to raise revenue." Id. at 763. Edmondson involved a challenge to an Oklahoma statute that created "an incentive structure that, on pain of financial assessment, encourages employers to verify the employment authorization of their independent contractors" to prevent the hiring of illegal immigrants. Id. Although characterized as an assessment or tax, "the expressed primary goal of the Oklahoma Act is to regulate behavior." It was not a tax for TIA purposes, and it could be enjoined. Id.; see also Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 728 (7th Cir. 2011) (en banc) (Posner, J.) (noting that the "distinction is between exactions designed to generate revenue . . . and exactions designed either to punish (fines, in a broad sense) rather than to generate revenue (the hope being that the punishment will deter, though deterrence is never perfect and therefore fines generate some state revenues)"). The text, structure, and purpose of the HHS Mandate enforcement mechanisms show that Section 4980D is a regulatory penalty and not a tax.
B. The Preventative Care Mandate is a penalty not a tax.
2 The TIA prohibits federal injunctions against state taxes, and courts often look to A I A precedent when interpreting the TIA, and vice-versa. See, e.g, Hibbs v. Winn, 542 U.S. 88, 104 (2004) ("Just as the AIA shields federal tax collections from federal-court injunctions, so the TIA shields state tax collections from federal-court restraints.").
4

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 5 of 11 Page ID#609
In 2010, Congress enacted the Affordable Care Act, including 42 U.S.C. § 300gg-13. This statute contains the Preventative Care Mandate and requires certain health plans to provide coverage without cost sharing, which ultimately included the HHS Mandate. Congress located the statute witliin Title 42 of the U.S. Code, covering public health and welfare. It is enforced in a variety of ways by the Secretary of Labor, private litigations, and the penalty in Section 4980D.
For example, the Affordable Care Act incorporated the requirements of the HHS Mandate into the Employee Retirement Income Security Act ("ERISA"), 29 USC § 1185d(a). ERISA permits plan beneficiaries or the Secretary of Labor to sue for the benefits included in the HHS Mandate. 29 USC § 1132(a).3 The goal of these remedies is to secure compliance with the legal requirements governing benefit plans.
Along with changes to Title 42 (the underlying mandate) and Title 29 (allowing enforcement), the Affordable Care Act also made the changes to the Internal Revenue Code relevant here. Congress added 26 U.S.C. § 9815 to the Intemal Revenue Code, titled "Additional market forms," which also incorporated the requirements of the HHS Mandate into the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104-191. Of particular importance to this case is HIPAA Section 402, codified as 26 U.S.C. § 4980D, which imposes massive penalties for failure to comply with group health care requirements. The actual language used by Congress shows that Section 4980D was intended as a penalty:
In some circumstances, ERISA can also impose criminal penalties. See 29 USC § 1132. It is not immediately clear whether these penalties could ever be used to enforce issues related to the HHS Mandate.
5

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 6 of 11 Page ID#610
SEC. 402. PENALTY ON FAILURE TO MEET CERTAIN GROUP HEALTH PLAN REQUIREMENTS. (a) In General-Chapter 43 of the Internal Revenue Code of 1986 (relating to qualified pension, etc., plans) is amended by adding after section 4980C the following new section: [then providing the language of Section 4980D] P.L. 104-191 (emphasis added); see also H.R. CONF. REP. 104-736, at *155 (same). Thus, the actual act passed by Congress applied the label "penalty" to describe the enforcement mechanism of Section 4980D.
The features and function of Section 4890D also show it is a penalty. By its terms, Section 4980D is a "tax" on "noncompliance" that only applies to the period of noncompliance. The penalties are fault-based, and can be limited or waived i f the employer "did not know, and exercising reasonable diligence would not have known" that it failed to comply or i f the failure to comply was "due to reasonable cause and not to willful neglect." 26 U.S.C. § 4980D(c)(l) and (c)(4). The amount of the fine is calculated with reference to employees denied benefits, not income. Any revenue provided is incidental to noncompliance. And the amount of the fine is so draconian and out of proportion to any cost of benefits that it is plainly penal in nature. In this case, for example, the Plaintiff projects cost to comply would be approximately $100,000; the penalty for failure to comply is approximately $19,000,000 (based on persons enrolled in the plan as of today). See Supplemental Declaration of John Kennedy Attached as Exhibit A . 4 In all these ways, Section 4980D creates an incentive structure to force compliance and punish noncompliance. Put another way, Section 4980D is a penalty not a tax. When Section 4980D is seen as a provision designed to coerce compliance it parallels and complements the other remedies that Congress provided under Title 29, which governs employees benefits and
4 A corrected version ofthe original Kennedy Declaration is also included as Exhibit B.
6

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 7 of 11 Page ID#611
authorizes a plan participant, beneficiary, or the Secretary of Labor to bring an action to require compliance with benefits law. See 29 U.S.C. §1132.
The lesson of Sebelius is that i f Congress intended the statutory section to serve as a penalty, as opposed to a revenue-raising tax, the A I A does not apply. In passing HIPAA, Congress explicitly labeled Section 4980D as a penalty, it functions as a penalty for noncompliance, and as a mechanism designed to ensure compliance it shares the thrust of other remedies available for noncompliance. For all these reasons, it is plain that Congress labeled Section 4980D as a penalty because it called the section and penalty and understood the section to be a penalty, not a revenue raising measure.
Indeed, the Government has responded to and defended the HHS Mandate (and the penalty that results under Section 4980D for failure to comply) in multiple cases. In each one, the Government has clearly stated the purpose of the HHS Mandate: forcing employers to provide certain coverage. In this case, the Government has argued that the interests behind the HHS Mandate are "in safeguarding the public health by regulating the health care and insurance markets," Resp. Br. at 18 (emphasis added), and removing barriers for women, id. at 19. The Government has never asserted an interest in taxation, raising revenue, or collecting taxes. The Government has never suggested that it would get any revenue from the "tax" or that employers really even have the option of paying the "tax" to avoid a violation of their religious beliefs. The Government's position has always been unequivocal: the HHS Mandate is designed to regulate behavior rather than raise revenue.5
5 To the extent that the Court determines that the HHS Mandate, at least as applied through Section 4980D is a tax, the Plaintiffs w i l l need to amend their complaint to add claims alleging that the tax is an unconstitutional penalty and that it violates the Origination Clause.
7

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 8 of 11 Page ID#612
II. The RFRA permits the relief sought by the Plaintiffs and controls over the AIA. To the extent the A I A applies at all, the RFRA controls over the AIA. The RFRA
provides this Court with jurisdiction over the Plaintiffs' claims. See 42 U.S.C. § 2000bb-l(c) (creating right of action). Congress took pains to specify that the term "government" as used in the statute "includes a branch, department, agency, instrumentality, and official...of the United States...." 42 U.S.C. §200bb-2(l). Congress expressly crafted the RFRA to apply to all federal statutes, including those adopted before and after the RFRA, unless the statute explicitly controls over the RFRA. 42 U.S.C. § 2000bb-3. The A I A contains no language excluding it from the reach ofthe RFRA. See 26 U.S.C. § 7421.
Moreover, to the extent there is a conflict between the RFRA's attempt to provide a private right of action and the AIA's attempt to restrict it, the canons of statutory construction indicate that the RFRA wins out for two reasons. First, the RFRA was passed after the AIA. " A specific policy embodied in a later federal statute should control our construction of the earlier statute, even though it has not been expressly amended." Detroit Receiving Hosp. and University Health Center v. Sebelius, 575 F.3d 609, 614 (6th Cir. 2009) (quoting United States v. Estate of Romani, 523 U.S. 517, 530-31 (1998)). The RFRA embodies a specific policy of allowing those burdened by a federal government action to enjoin that action in court. Second, the RFRA is the more specific statute (covering taxes that burden religion) as opposed to the AIA's more general provision (covering only certain taxes). "There is an additional canon of statutory construction which dictates that the specific statute controls over the more general provision." United States v. Ware, 161 F.3d 414, 423 (6th Cir. 1998). As the specific statute, the RFRA controls.
8

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Congressional intent to make RFRA comprehensive in its reach is emphatic. Consequently, RFRA applies to the AIA and prohibits an application ofthe AIA that results in a substantial burden on religion. Since there is no question that using the AIA to bar Plaintiffs' request for relief would subject the Plaintiffs to the vicious bind arising from the HHS mandate and noncompliance penalty, there is no question that RFRA permits the Plaintiffs to secure the relief they seek in this case. III. To the extent the AI A applies to this case, the Plaintiffs can claim the benefit of the
judicially created exception for irreparable harm. Even i f the Court finds that the HHS Mandate cannot be blocked without enjoining Section 4980D, and that Section 4980D is a tax subject to the AIA, and that the AIA controls over the RFRA, the Plaintiffs are still entitled to an injunction. Where a plaintiff shows that the Government cannot ultimately prevail, a tax may be enjoined i f the other equitable requirements (e.g. irreparable harm) are shown. Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962); see also Everett v. United States, 10 F. App'x. 336, 337 (6th Cir. 2001) ("the statute is not applicable i f the taxpayer was certain to succeed on the merits and could demonstrate that the collection would cause him irreparable harm"); Vonderheide v. United States, 178 F.3d 1297, 1999 WL 220134, at *1 (6th Cir. 1999) (AIA does not apply where government will not prevail and irreparable harm will occur because no other legal remedy exists); Hezel v. United States, 165 F.3d 27, 1998 WL 702311, at *1 (6th Cir. 1998) ("the statute is not applicable i f the taxpayer was certain to succeed on the merits and could demonstrate that the collection would cause him irreparable harm.").6 The Plaintiffs requested relief under the more relaxed preliminary injunction standard requiring a mere likelihood of success on the merits. And the Plaintiffs have met that burden.
6 This also shows that the A I A is not actually jurisdictional, which means that the Government can waive it.
9

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 10 of 11 Page ID#614
But even were the Plaintiffs required to show certain—or actual—success on the merits, they have done so. For the reasons set forth in the Plaintiffs' earlier briefing, the HHS Mandate is unconstitutional and unlawful. And the Court should enjoin its application.
Analysis of Question 2 Question 2: Other than possible exposure to the tax under 26 U.S.C. § 4980D, what enforcement risk do Plaintiffs face as of January 1, 2013, i f they elect not to offer group health coverage with the challenged benefits? The Plaintiffs are subject to other enforcement risks. In particular, the requirements of the HHS Mandate (as a part of the Affordable Care Act's minimum coverage requirements) are incorporated into ERISA. 29 USC § 1185d(a). And ERISA permits plan beneficiaries or the federal government to sue for those benefits included in the HHS Mandate. 29 USC § 1132(a). As of January 1, 2013, the Plaintiffs would be in violation of ERISA i f they elect not to offer group health coverage with the challenged benefits and would be subject to enforcement under ERISA.
Analysis of Question 3 Question 3: Is Plaintiffs' exposure for taxes imposed under section 4980D for failure to honor the challenged mandate limited to the lesser of 10% of the taxpayer's cost of the group health plan, or $500,000, under section 4980D(c)(3), at least until final resolution of Plaintiffs' challenges in this case? No, the limitation in Section 4980D(c)(3) would not apply. This section only limits tax liability where the employer "did not know, and exercising reasonable diligence would not have known" that it failed to comply with the HHS Mandate, id. at (c)(1), or that its failure to comply was "due to reasonable cause and not to willful neglect," id. at (c)(4). First, this language appears designed to cover genuine oversights in creating a health plan. Autocam is not "mistaken" about the coverage requirements; it simply cannot accept them. The Govermnent would certainly find that its refusal to comply would be willful, and Autocam has no reason to
10

Case 1:12-cv-01096-RJJ Doc #36 Filed 12/17/12 Page 11 of 11 Page ID#615

believe the Government would deem its failure to comply "reasonable cause" given the arguments it has advanced in this litigation. In any event, it is no great comfort to the Plaintiffs that the Government would be content to only penalize it in the amount allowed by the subsection for attempting to vindicate their rights. Second, the provisions at issue require that "it is established to the satisfaction of the Secretary," id. at (c)(1), and provides that the Secretary "may waive" a penalty, id. at (c)(4). The Secretary's discretion, though, is not something Autocam can count on and not something Autocam even appears to be eligible for. Thus, the limitation in Section 4980D(c)(3) does not apply.

CONCLUSION For these reasons, the Court should grant the relief sought by the Plaintiffs' Motion for Preliminary Injunction.

Respectfully submitted,

Dated: December 17, 2012
Patrick T. Gillen (P47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734)355-4728 ptgillen@avemarialaw. edu

/s/ Jason C. Miller Jason C. Miller (P76236) MILLER JOHNSON 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj @millerj ohnson.com
Thomas Brejcha* Peter Breen* Thomas More Society Attorneys for Plaintiffs 29 South LaSalle St. - Suite 440 Chicago, I L 60603 Tel. 312-782-1680 tbrej cha@thomasmoresociety.org pbreen@thomasmoresociety.org *Application for admission to be filed.

Attorneys for Plaintiffs

11
GR_DOCS 1854614vl

Case 1:12-cv-01096-RJJ Doc #36-1 Filed 12/17/12 Page 1 of 3 Page ID#616
Exhibit A

Case 1:12-cv-01096-RJJ Doc #36-1 Filed 12/17/12 Page 2 of 3 Page ID#617

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al Plaintiffs,
v. KATHLEEN SEBELIUS, etal.
Defendants.

Case No. 1:12-ev-01096-RJJ

SUPPLEMENTAL DECLARATION OF JOHN KENNEDY
Pursuant to 28 U.S.C. § 1746, John Kennedy declares: 1. I am above the age of 18, of sound mind, and have personal knowledge as to the matters set forth herein. 2. I am the President and Chief Executive Officer of the Autocam corporations that are plaintiffs in this suit (referred to herein collectively as "Autocam"). 3. Autocam's health insurance plan lost the possibility of grandfathering by virtue of a change in coverage effective on January 1, 2011. On that date, the plan was changed from having a $500 (single plan) deductible / $1,000 (family plan) deductible with 80-20% coinsurance to a high deductible health plan with a $2,000 (single) deductible / $4,000 (family) deductible in which Autocam contributes $1.500 in matching funds dollar for dollar annually to each employee's Health Savings Account (HSA).

1

Case 1:12-cv-01096-RJJ Doc #36-1 Filed 12/17/12 Page 3 of 3 Page ID#618
4. The change was made as part of Autocam's effort to preserve a top-notch employee benefits plan with the same approximate out-of-pocket cost to each employee ($2,500 per year) while moving to a more consumer-oriented healthcare plan.
5. Autocam cannot comply with the HHS Mandate based on religious convictions. The actual expense for Autocam to comply with the HHS Mandate would be approximately $100,000 per year. The penalty for failure to comply, on the other hand, is approximately $19,000,000 per year based on the employees now covered by the plan.
6. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 14, 2012

GR_DOCS 1844786v t

2

Case 1:12-cv-01096-RJJ Doc #36-2 Filed 12/17/12 Page 1 of 4 Page ID#619
Exhibit B

Case 1:12-cv-01096-RJJ Doc #36-2 Filed 12/17/12 Page 2 of 4 Page ID#620

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

A U T O C A M CORPORATION, et al. Plaintiffs,
v. K A T H L E E N SEBELIUS, etal.
Defendants.

Case No. 1:12-cv-01096-RJJ

DECLARATION OF JOHN KENNEDY

Pursuant to 28 U.S.C. § 1746, John Kennedy declares:

1.

This Declaration is submitted in support of Plaintiffs' motion for preliminary

injunction.

2.

I am above the age of 18, of sound mind, and have personal knowledge as to the

matters set forth herein.

3. I am the President and Chief Executive Officer of the Autocam corporations that are plaintiffs in this suit (referred to herein collectively as "Autocam").

4.

Autocam does not meet the definition of a grandfathered plan. On January 1, 2011,

Autocam"s insurance plans were changed for reasons unrelated to the issues in this lawsuit.

Autocam;s plans have not continuously covered someone since March 23, 2010. Because o f this,

Autocam has been advised by its insurer and others that it is not considered grandfathered and w i l l

be subject to the HHS Mandate at its next plan year, which begins January 1, 2013.

1

Case 1:12-cv-01096-RJJ Doc #36-2 Filed 12/17/12 Page 3 of 4 Page ID#621

5.

We filed this lawsuit as soon as it was practical do so after consulting with our

insurance provider. It took significant time to consult with our insurance provider and to asses any

alternatives available to our employees in the private market and under the state exchanges

contemplated by the PPACA. Autocam received its most recent (but still tentative) assessment of

probable impact on its employees on October 2, 2012. It was not until that point mat we had a

realistic sense o f the drastic and negative consequences our employees would suffer i f Autocam

was required to cease coverage in response to the HHS Mandate. This lawsuit was filed shortly

after receiving that assessment. In particular, it took significant time to assess the status of the

creation o f the exchanges themselves in Michigan, as the political situation is in flux. It now

seems certain that Michigan's exchanges will not take effect until 2014. This situation effectively

leaves our employees with no other options to purchase affordable coverage comparable to

Autocam's plan in 2013. In addition, the information about the coverage options that w i l l be

available to my employees indicates that many will be drastically and adversely affected i f forced

to seek coverage through the exchanges. M y goal is to be able to preserve my existing plan, which

provides generous benefits to my employees in keeping with my commitment to living out the

social teachings o f the Catholic Church, without being forced to cooperate i n the provision of

drugs and services that I believe are intrinsically evil.

6. Autocam currently provides generous wages and benefits to its employees. The average W-2 income for an hourly worker at Autocam is approximately $53,000 per year. Salaried employees typically earn more than hourly workers. Autocam also provides up to $1,500 per year towards a health savings account for our employees. These funds are owned by the employees and can be used for any lawful purpose.

7. We do not seek to control what an employee or his or her dependants do with the wages and healthcare dollars we provide. Our employees are free to make decisions with their

2

Case 1:12-cv-01096-RJJ Doc #36-2 Filed 12/17/12 Page 4 of 4 Page ID#622

money—including the funds in their personal health savings account—that we do not agree with.

Because our plan does not pay for the drags and services that we object to. we are not engaging i n

material cooperation with evil.

8.

Under Autocam's self-insured plan, application ofthe HHS Mandate would require

us to directly pay for the purchase o f drugs and services, including abortifacient drugs, in violation

o f our beliefs. Under Catholic doctrine, our financial support for these drugs and services through

a self-insured plan would be material cooperation of evil. I cannot do that. But 1 do not want to

terminate the benefits programs we have in place because all the information that I have currently

available indicates that many o f my employees will suffer drastic adverse consequences.

9. I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 13,2012

/

-

John Kennedy

GR DOCS I844786vi

3

 
 Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 1 of 11 Page ID#710

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

AUTOCAM CORPORATION, et al., Plaintiffs,
v. KATHLEEN SEBELIUS, et al.,
Defendants

Case No. Hon.

12-cv-01096 ROBERT J. JONKER

PLAINTIFFS’ SUPPLEMENTAL BRIEF ON HARM SUPPORTING MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION At the preliminary injunction hearing on December 17, 2012, the Court asked a series of questions related to whether the Plaintiffs will experience harm on January 1, 2013, that can be alleviated by a preliminary injunction. Specifically, the Court drew counsel’s attention to the possibility that a preliminary injunction could later be dissolved, which would leave the Plaintiffs subject to the same penalty, regardless of what the Court does. The Court invited further briefing by the parties on the issue of harm and the Court’s concern that preliminary relief might prove ineffective or counterproductive in the event the Court was obliged to rule against plaintiffs at the culmination of these proceedings. If the HHS Mandate is not enjoined, the Plaintiffs will suffer immediate consequences on January 1, 2013. By enjoining the HHS Mandate, the Court will protect the Plaintiffs from harm in the following ways:

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 2 of 11 Page ID#711
 Reducing non-compliance period for calculating penalties. The penalty is calculated on a per-day basis. For every day the injunction is in place, the Plaintiffs are spared tens of thousands of dollars in fines—even if the injunction is ultimately vacated. As explained below, the Plaintiffs believe this Court has the power to protect them from any effort to sanction the Plaintiffs for the period in which their noncompliance can be justified with reference to this Court’s decision to grant preliminary relief pending its decision, and consequently ask this Court to so provide in its order.
 Establishing reasonable cause for penalty reduction. The penalty is eliminated or reduced dramatically if the Plaintiffs have reasonable cause for failure to comply. Reliance on a court order, even if only during the temporary application of that order, will show reasonable cause and thus eliminate or reduce the penalty accrued during the upcoming plan year.
 Preserving financing and ability to continue business. The Plaintiffs cannot operate their business subject to a $19 million liability. Having this liability hanging over their head will immediately impact their credit, reputation, and ability to conduct business.
 Avoiding other lawsuits, expenses, and fee awards. The Plaintiffs will be protected against ERISA suits based on the HHS Mandate during the pendency of the injunction, with all the attendant costs and consequences.
 Avoiding massive fine. The Plaintiffs will avoid being subjected, as a matter of law, to a tremendous fine that, although collected later, is legally imposed immediately for the reasons explained below.
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It is important to evaluate these harms, though, within the context of the Religious Freedom Restoration Act (“RFRA”), under which any violation constitutes irreparable harm.
ARGUMENT I. The RFRA standard for harm.
A violation of the RFRA is itself irreparable harm. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“Courts have persuasively found that irreparable harm accompanies a substantial burden on an individual's rights to the free exercise of religion under RFRA.”); Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003) (violation of constitutional rights for even a minimal amount of time constitutes irreparable harm). For the reasons set forth in earlier briefing, the Government cannot survive an RFRA challenge. The question posed by the Court thus appears to be whether the injuries the Plaintiffs face as of January 1, 2013, constitutes a substantial burden under 42 USC § 2000bb–1 which would warrant an immediate and preliminary injunction.
The RFRA will be violated by January 1, 2013. Where the Government places “substantial pressure on an adherent to modify his behavior and to violate his beliefs substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas v. Review Bd. Of Ind. Empt’ Sec Div., 450 U.S. 707, 719 (1981). The pressure faced by the Plaintiffs is substantial, and it starts immediately. But the Court can take that pressure off. II. The penalty is calculated on a per-day basis, which means temporary relief
will reduce the penalty that accrues even if the injunction is later vacated. The most crippling mechanism for enforcing the HHS Mandate is the penalty in 26 U.S.C. § 4980D. A penalty of $100 for each day of noncompliance is imposed “with respect to
3

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each individual to whom such failure relates.” Id. at (b)(1). Depending on how the number of individuals is calculated, this generates a penalty of $19-24 million per year or approximately $50,000-65,000 per day. (See Verif. Compl. at ¶ 8; Supp. Kennedy Dec.) This penalty is calculated on a daily basis for the noncompliance period. 26 U.S.C. § 4980D(b)(1). The noncompliance period begins at the date noncompliance first occurs and ends when the failure is corrected. Id. at (b)(2). This is not an all-or-nothing annualized penalty, but a penalty where each day matters. Even one day’s penalty is a substantial burden for RFRA purposes. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 208, 218 (1972) (finding $5 fine substantially burdened religious exercise).
If the Court issues an injunction on January 1, only to later lift the injunction, the Plaintiffs would benefit from that injunction because their period of noncompliance would not start until the injunction were lifted. To the extent the Court is unsure of whether the statute itself would provide immunity from penalty during the injunction period, the Court has the power to make such relief explicit in its preliminary injunction order. In a unanimous opinion by Justice Brandeis a century ago, the Supreme Court stated that if a preliminary injunction against enforcement were held erroneous on final hearing, ‘‘a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite [pending litigation], provided that it also be found that the plaintiff had reasonable ground to contest’’ the challenged law. Oklahoma Operating Co. v. Love, 252 U.S. 331, 338 (1920). To counsel’s knowledge, the Supreme Court has not decided the issue since.1
1 This issue did come up in Edgar v. Mite Corp., 457 U.S. 624 (1982), where the majority passed on the issue of whether a “preliminary injunction issued by the District Court is a complete defense to civil or criminal penalties,” id. at 630. Edgar involved an injunction against a state statute, however, and no “federalism concerns would prevent an immunizing effect in the present case,” where the question concerns only branches of the federal government. See Clarke v. United States, 915 F.2d 699, 702 (D.C. Cir. 1990) (discussing Edgar).
4

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Since then, other federal courts have found that an injunction, although later vacated, provides a defense to enforcement for acts committed during the injunction. See, e.g., Clarke v. United States, 915 F.2d 699, 702 (D.C. Cir. 1990) (“a federal judgment, later reversed or found erroneous, is a defense to a federal prosecution for acts committed while the judgment was in effect”) (collecting cases); Am. Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 498 n.1 (E.D. Pa. 1999) (after concluding that a federal court could craft injunctive relief that would protect acts taken in reliance on the injunction even if the injunction is reversed on appeal, enjoining “the defendant from enforcing [the statute] against acts which occur during the pendency of this Order”); International Paper Co. v. Jay, 672 F. Supp. 29, 35 (D. Me. 1987) (following Oklahoma Operating and enjoining “enforcement of the ordinance pendente lite”). The limited number of cases exactly on point is not surprising. As a matter of habit and practice, governments likely do not seek to prosecute or fine those who act in reliance on federal court orders. There is no reason to think here that the Government would even seek to impose penalties for conduct during the pendency of the preliminary injunction.
In the criminal context, the ability to rely on a court ruling is well settled. See Model Penal Code § 2.04(3), 10A Unif. L. Ann. 106 (2001) (creating a defense of ‘‘belief that conduct does not legally constitute an offense . . . when . . . [defendant] acts in reasonable reliance upon . . . a judicial decision, opinion or judgment’’). Federal courts have anchored this ability to rely on a judicial decision in the constitutional guarantees of due process: “It would be an act of intolerable injustice to hold criminally liable a person who had engaged in certain conduct in reasonable reliance upon a judicial opinion instructing that such conduct is legal. Indeed, the reliance defense is required by the constitutional guarantee of due process.” Kratz v. Kratz, 477 F. Supp. 463, 481 (E.D. Pa. 1979) (footnotes omitted); United States v. Albertini, 830 F.2d 985,
5

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989 (9th Cir. 1987) (same), overturned on other grounds by 469 U.S. 1071; United States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989) (same); Ostrosky v. State, 704 P.2d 786, 791; (Alaska Ct. App. 1985) (same); see also United States v. Levin, 973 F.2d 463, 468 (6th Cir. 1992) (“‘fundamental notions of fairness embodied in the Due Process Clause of the Constitution’ provide a defense where the government announces that an act as legal and the defendant relied on the announcement”); Cox v. State of Louisiana, 379 U.S. 559, 571 (1965) (due process clause does not permit conviction where government told demonstrators conduct was lawful). Indeed, “[t]he case for allowing the due process defense when the advice is given by a judge is even more compelling . . . [b]ecause of the unique role of the judiciary in interpreting the law.” United States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989). This case involves a tremendous and crippling penalty.2 The guarantees of due process would thus protect the Plaintiffs rights to act in reliance on a preliminary injunction instructing them that their conduct is legal.
The Plaintiffs respectfully submit that the Supreme Court’s decision in Love, supra, represents the only resolution of this question consistent with the constitutional separation of powers and the role of the federal judiciary in ensuring the rule of law.3 Article III vests the judicial power in the federal courts and the courts have certain inherent power, including the power to take measures in aid of their jurisdiction. Chambers v. NASCO, 501 U.S. 32 (1991) (recognizing federal courts have inherent power to take steps that protect the integrity of the judicial process, including power to investigate and punish fraud on the court); see also Bessette
2 As set forth in Plaintiffs’ Supplemental Brief Concerning the Anti-Injunction Act, which is incorporated here by reference, the enforcement mechanism in 26 U.S.C. § 4980D is a penalty and not a tax. 3 The Plaintiffs address here only the specific situation presented by the application of Section 4980D to collect fines for a period of noncompliance justified by a judicial order providing preliminary relief in connection with a pending action, believing that in this case the executive branch’s effort to collect fines for that period would directly undermine the exercise of judicial power. The Plaintiffs acknowledge that other cases involving private parties or fixed damages may present different considerations.
6

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 7 of 11 Page ID#716
v. W.B. Conkey Co., 194 U.S. 324, 333 (1904) (noting contempt power “has been uniformly held to be necessary to the protection of the court…and to enable it to enforce its judgments and order necessary to the due administration of law and the protection of the rights of suitors.”). In this case that power is augmented by the legislative authorization contained in the Rules Enabling Act which expressly grants to the judiciary the power to make rules governing the judicial process pursuant to which the Supreme Court has promulgated Rule 65, which authorizes the preliminary relief. See 28 U.S.C. §2072; see also Christopher v. Brusselback, 302 U.S. 500, 505 (1938) (noting rules governing equity proceedings were derived from statute and courts “inherent power to regulate by rules the modes of proceeding in suits in equity.”). The Court has recognized that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution,” powers “which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” United States v. Hudson, 7 Cranch 32, 34 (1812).
The Supreme Court has recognized that the separation of powers prevents the other branches from acting in a way that threatens to effectively undermine its decision. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (law requiring federal courts to reopen final judgments violated the separation of powers). It has also recognized that the separation of powers prevents the other branches from taking actions that impair the ability of the federal courts to perform their constitutionally assigned function. See, e.g., Legal Services Corporation v. Velazquez, 531 U.S. 533, 545 (2001) (holding that Congress could not prohibit recipients of federal funding for representation from advancing challenges to validity of existing welfare laws because “the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”). These cases converge with the Supreme Court’s decision in Love, which reflects the commonsense notion that the federal courts have the
7

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 8 of 11 Page ID#717
power necessary to preserve the judiciary’s constitutional role by protecting parties from sanctions levied for the period during which the party sought the protection of the federal courts.
Here the Plaintiffs have sought protection from the federal judiciary alleging unlawful, indeed unconstitutional, conduct by the Defendants. The Court has taken jurisdiction over the case and confronts a request for preliminary relief, a form of relief that is justified by the pressing need to make recourse to the federal courts effective by allowing the court to protect parties who come to it for a decision. It is true that the Court’s initial decision is not final, but that cannot matter. If the Court cannot protect a party from fines levied for the period needed to complete the process of judicial review, the very possibility of judicial review and ability to render a final decision will be eviscerated by the fear of fines incurred while a proceeding were pending. Similarly, it is true that an executive branch enforcement would not literally prevent the Plaintiffs from recourse to the Courts. But if the executive branch could sanction a party for a period of noncompliance justified by reliance on a grant of preliminary relief, recourse to the federal courts would be effectively thwarted. The net result would be to undermine the role of the judiciary as a guardian of statutory and constitutional rights according to the tripartite scheme of government created by the federal constitution and to effectively eviscerate the rights to due process of law. The Plaintiffs respectfully submit that the separation of powers does not allow either the legislative or executive branches to take actions that effectively thwart recourse to the judiciary. The constitution prevents these branches from making recourse to the federal judiciary for a determination of rights no better than a double-edged sword. III. Even were the Plaintiffs penalized retroactively, a preliminary injunction
would still reduce the penalty under the terms of the statute itself. The penalty assessed under 26 U.S.C. § 4980D is subject to certain limitations. The Plaintiffs would not be liable if they “did not know, and exercising reasonable diligence would
8

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 9 of 11 Page ID#718
not have known” that they were failing to meet their obligation to comply with the HHS Mandate. Id. at (c)(1). If the failure to comply with the HHS Mandate was “due to reasonable cause and not to willful neglect,” the penalty would be capped at $500,000. Id. at (c)(3). The Government also has authority to “waive part or all of the” penalty if it “would be excessive relative to the failure involved.” Id. at (c)(4).
At the preliminary injunction hearing, the Government made its position clear: if the Plaintiffs refuse to comply with the HHS Mandate, this constitutes willful conduct not subject to this immunity or limit on liability. Without an injunction, the Plaintiffs will be subject to the full penalty, approximately $19 million. But if the Plaintiffs are granted a preliminary injunction, they would certainly be able to claim that they exercised reasonable diligence and had reasonable cause for failure to comply with the HHS Mandate.4 They should not be subject to any penalty in such circumstances and, at the very least, the penalty would be capped at $500,000—which, although still a substantial burden, is an approximately 98% reduction in the penalty. At the very least, the Plaintiffs would be able to seek a partial waiver of the penalty for the period covered by the injunction because a penalty imposed in the face of a court ruling would be excessive relative to the failure to comply. IV. Plaintiffs’ business will be damaged immediately once the fine accrues.
The Government has taken the position that the Plaintiffs’ failure to comply is willful, which will subject it to a crippling fine reaching $19 million or more over the next year.
4 Although the statute does not appear to define these terms, the general definitions would appear to cover reliance on a court order. Black's Law Dictionary (8th ed. 2009) (defining “reasonable diligence” as “[a] fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue.”); In re Slater Corp., 190 B.R. 695, 699 (Bankr. S.D. Fla. 1995) (“Willful neglect is defined by case law as a ‘conscious, intentional failure or reckless indifference.’”); Law Offices of Robert A. Cushman v. Comm'r, T.C. Summary Opinion 2011-37 (T.C. 2011) (reasonable cause is exercise of ordinary care and prudence). The cases indicating that Due Process would bar prosecution for conduct undertaken in reliance on a judicial determination likewise indicate that reliance on a grant of preliminary relief would excuse noncompliance for the period the order was in effect by constituting
9

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 10 of 11 Page ID#719
Whether or not the fine is paid immediately, its impact is felt now. Autocam faces the potential loss of its financing and credit, an injury to its reputation, and a tremendous strain on its ability to simply operate the business. (See Ex. A, Kennedy Dec. Concerning Harm.) These injuries all constitute irreparable harm.
In other situations, the courts have found that injury to credit constitutes irreparable harm. United States v. Brum, 2005 U.S. Dist. LEXIS 21208, 7 (E.D. Tex. July 1, 2005) (threat irreparable injury where government officers must “set aside time from their official jobs to try and clear their credit history”); United States v. Castle, 2011 U.S. Dist. LEXIS 43889, 25 (E.D. Cal. 2011) (“damaging their credit ratings” constitutes irreparable injury for government officers). In the business context, the “impairment of intangible values” such as injury to reputation constitutes irreparable harm. Hair Assocs. v. National Hair Replacement Servs., 987 F. Supp. 569, 591 (W.D. Mich. 1997) (citing Wynn Oil Co. v. American Way Serv. Corp., 943 F.2d 595, 608 (6th Cir. 1991)); Circuit City Stores, Inc. v. CarMax, Inc., 165 F.3d 1047, 1056 (6th Cir. 1999) (irreparable harm for possible risk to reputation). In the absence of an injunction, the consequences to the Plaintiffs after January 1 will be dramatic. These injuries are a direct result of the fine imposed for failure to comply with the HHS Mandate. The HHS Mandate does, and was designed to, apply substantial pressure on the Plaintiffs to modify their behavior and violate their beliefs. This is a substantial burden under the RFRA, and it constitutes irreparable harm. V. ERISA will make the HHS Mandate immediately enforceable against the Plaintiffs
as of January 1. If the HHS Mandate is not enjoined, plan participants, beneficiaries, or, perhaps more importantly, the Secretary of Labor will be allowed to immediately bring an ERISA action to
“reasonable cause” within the meaning of Section 4980D if that term is given its plain meaning under well
10

Case 1:12-cv-01096-RJJ Doc #40 Filed 12/21/12 Page 11 of 11 Page ID#720

enforce the benefits of the HHS Mandate. See 29 U.S.C. § 1132. A preliminary injunction

holding that the Plaintiffs are not subject to the HHS Mandate would have the effect of

immunizing them from ERISA litigation—at least while the preliminary injunction is in effect.

This immunity, even if only temporary, would avoid the immediate and substantial cost of

litigation. A plan participant or beneficiary who sues can be awarded reasonable attorneys fees,

and a court would certainly be expected to reduce or refuse to award fees incurred in litigation to

enforce a benefit that had been preliminarily enjoined. 29 U.S.C. § 1132(g).

VI. The imposition of a fine, even if not collected immediately, is itself a burden.

As of January 1, the Plaintiffs are being fined $100 per individual per day. 26 U.S.C. §

4980D. Even if this fine is not collected on January 1, the Plaintiffs are still irreparably harmed.

The purpose and effect of the fine is to place pressure on the Plaintiffs to modify their behavior.

Thomas, 405 U.S. at 709. This is a substantial burden. Id. And because that burden violates the

RFRA, it is itself irreparable harm, even before the check is cut. See Jolly, 76 F.3d at 482.

CONCLUSION For these reasons, the Court should grant the relief sought by the Plaintiffs’ Motion for

Preliminary Injunction.

Dated: December 21, 2012
Patrick T. Gillen (P47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu

Respectfully submitted,
/s/ Jason C. Miller Jason C. Miller (P76236) MILLER JOHNSON 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj@millerjohnson.com

Attorneys for Plaintiffs

established canons of statutory interpretation.

11
GR_DOCS 1856929v1

Case 1:12-cv-01096-RJJ Doc #40-1 Filed 12/21/12 Page 1 of 5 Page ID#721
Exhibit A

Case 1:12-cv-01096-RJJ Doc #40-1 Filed 12/21/12 Page 2 of 5 Page ID#722

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

A U T O C A M CORPORATION., et al Plaintiffs,
v. K A T H L E E N SEBELIUS, et al,
Defendants.

Case No, 1 ::12~cv-G1G96-RJI

DECLARATION OF JOHN KENNEDY CONCERNING HARM

Pursuant to 28 U.S.C. § 1746, John Kennedy declares:

1,

This Declaration is submitted i n support o f Plaintiffs' motion for preliminary1

injunction.,

2,

I am above the age o f 18, o f "sounds mind, and have personal knowledge as to the

matters sei fbrth herein.

3 . I am the President and Chief Executive Officer o f the Autocam corporations that

are plaintiffs in this suit (referred to herein cbllectively as "Autocam'').

4.

I submit ihis supplemental declaration to provide the: court with additional

information relating to. the harm that the••Plaintiffs w i l l suffer as a result o f the HHS Mandate and

why we have requested protection from the Court,

5.

The total projected cost o f medical benefits (excluding dental): for my employees

for 2013 is $6,500,000. In addition. I w i l l pay an additional $381,000 for stop-loss, insurance to

cover employee claims over the plan limit so individual employees with serious medical needs can

I

Case 1:12-cv-01096-RJJ Doc #40-1 Filed 12/21/12 Page 3 of 5 Page ID#723

be taken care o f without undermining the viability o f onr benefits plan. The maximum cost o f

complying w i t h the HHS mandate would be $ 100.000,

6.

In contrast, the penalty for dropping insurance: coverage altogether is Just $2,000

per employee, a fine that would total between $1,036,000 ( i f it applies only to employees talcing

advantage o f our plan) and $1,182,000 per year (if the fine is calculated based on tlie total number

of our employees, including employees who have opted out o f the plan). The penalty for failing to

comply with the mandate is between. $19,000,000 ( i f the fine applies only to employees taking

advantage o f our plan) or $24,000,000 ( i f the fine is calculated based the total number of my

employees),

7. I f I (and the members o f my family who own Autocam) had no religious objection

to the mandate, we could cover the additional $100,000 in costs. B u t we cannot do mat consistent

with our sincerely held religious conviction.

8. • Another way that I'(asd the members o f my family who own Autocam) could avoid

the moral dilemma we confront: is: to simply drop medical benefits. This would save; us about

$5,6*00,000. But we cannot do that consistent whh our religious conviction for the reasons given

below,

9.

I f we cut benefits, our employees would be In a terrible position. Even i f we were

to increase wages for the f u l l o r partial amount of money saved by not offering insurance, our

employees would be unable to .purchase a similar health insurance plan because they would, not be

afforded the tax: advantages o f employer-sponsored, plans, They will be unable to purchase

comparable health insurance as. the. market exists today i f we drop coverage. Moreover, as I have

informed the Court i n my earlier affidavit, it appears that a large portion o f our employees would:

continue to suffer drastic adverse consequences even when the state exchanges begin operating.

Case 1:12-cv-01096-RJJ Doc #40-1 Filed 12/21/12 Page 4 of 5 Page ID#724
10. For these reasons, we cannot cut henefits consistent with our religious conviction that we have a duty to offer good wages and benefits to our workers In keeping with the Catholic Church' s teachings on the dignity o f worker and the importance o f fair treatment o f employees as an essential element o f social justice,
1.1. In sum, eiiher o f the two options we have described would actually save us nioney. So i f this were just a matter o f avoiding our problem In the easiest way, we could, take those "outs.'* But we cannot do so for the reasons I have explained. For us, the operation o f our business and the treatment of our employees is not simply a matter of dollars-and-cents, it is a matter of living our faith.
12. That leaves the last option, which, caused us to seek relief from this Court. I f we continue to the offer benefits, hut do not include tire drugs and services mandated by the HHS to which we object by reason of our sincerely held, religious conviction, we would be a subjects to the risk o f a potential fine between $19,000,000 (if the fine is calculated only for ^employees who are currently enrolled in the plan); and $24,000,000 ( i f the fine is calculated for all. employees) per year. This would quickly ruin Autocam by destroying our ability to. finance the business. I have talked to my bank, and they have indicated .that faced with a $20 million penalty even i f we believe the probability o f loss is low they would be unwilling, to finance the equipment necessary for us to f u l f i l l our contractual agreements, Accordingly,, we would quickly, lose customers, face lawsuits f r o m customers where we are contractually' committed and go out of business. Without a preliminary injunction, which prevents the penalty from being assessed during the period of the litigation we will not get. the financing necessary to meet our obligations i n 2013.
13. I declare under penalty o f penury thai the foregoing is true and correct. Executed on December ' , 2012

Case 1:12-cv-01096-RJJ Doc #40-1 Filed 12/21/12 Page 5 of 5 Page ID#725
John Kenned)

ORjDOCS !844?86vl

4

 
 Case 1:12-cv-01096-RJJ Doc #46 Filed 01/03/13 Page 1 of 4 Page ID#768

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:12-cv-01096-RJJ

JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL
The parties, by and through their undersigned counsel, hereby jointly move this Court to enter an order staying further proceedings in this Court pending resolution of plaintiffs’ appeal to the United States Court of Appeals for the Sixth Circuit of this Court’s denial of plaintiffs’ motion for a preliminary injunction. In support of this motion, the parties state as follows:
1. On December 24, 2012, this Court entered an opinion and order denying plaintiffs’ motion for a preliminary injunction. See Opinion and Order, ECF No. 42. The Court determined, among other things, that plaintiffs had not demonstrated a likelihood of success on their Religious Freedom Restoration Act (“RFRA”), Free Exercise Clause, and Free Speech Clause claims.
2. On December 26, 2012 , plaintiffs filed a Notice of Appeal in which plaintiffs appealed this Court’s order denying plaintiffs’ motion for a preliminary injunction to the United States Court of Appeals for the Sixth Circuit. See Notice of Appeal, ECF No. 43. Plaintiffs also moved the Sixth Circuit for an injunction pending appeal and to expedite the appeal. The Sixth Circuit denied plaintiffs’ motion for an injunction pending appeal, but granted their motion to

Case 1:12-cv-01096-RJJ Doc #46 Filed 01/03/13 Page 2 of 4 Page ID#769
expedite the appeal. See Autocam Corp. v. Sebelius, No. 12-2673, Order (6th Cir. Dec. 28, 2012), motion for recons. denied, No. 12-2673, Order (6th Cir. Dec. 31, 2012).1
3. Defendants’ response to plaintiffs’ complaint is currently due on January 7, 2013. See Order, ECF No. 32. Absent a stay of district court proceedings, defendants intend to move to dismiss the complaint in its entirety under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
4. “Although the filing of an interlocutory appeal does not automatically stay proceedings in the district court, the district court has broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants.” Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008).
5. Defendants’ intended motion to dismiss will raise legal issues regarding plaintiffs’ RFRA and Free Exercise Clause claims that are likely to be addressed by the Sixth Circuit in adjudicating plaintiffs’ appeal of this Court’s denial of a preliminary injunction. The parties believe it would be inefficient to concurrently litigate these issues in both courts.
6. Two district courts recently stayed district court proceedings under similar circumstances in Newland v. Sebelius and Hobby Lobby Stores, Inc. v. Sebelius. See Order, Newland v. Sebelius, No. 1:12-cv-01123 (D. Colo. Oct. 26, 2012 ), ECF No. 57; Order, Hobby Lobby Stores, Inc. v. Sebelius, CIV-12-1000-HE (W.D. Okla. Dec. 12, 2 012), ECF No. 55. In Newland, the district court granted plaintiffs’ motion for a preliminary injunction, and the government appealed. Newland, Order at 1. The court stayed all district court proceedings “until the Tenth Circuit issues its ruling or until further order of this Court.” Id. at 2. In Hobby Lobby, the district court denied plaintiffs’ motion for a preliminary injunction, and plaintiffs appealed. The court stayed all district court proceedings “pending the resolution of plaintiff’s appeal to the Tenth Circuit Court of Appeals or further order of the court.” Hobby Lobby, Order at 1. The parties respectfully request that this Court do the same.
1 Under the current briefing schedule set by the Sixth Circuit, the plaintiffs’/appellants’ brief is due February 11, 2013; the defendants’/appellees’ brief is due March 14, 2013; and the plaintiffs’/appellants’ reply brief is due within 17 days of defendants’/appellees’ brief.
2

Case 1:12-cv-01096-RJJ Doc #46 Filed 01/03/13 Page 3 of 4 Page ID#770

7. Further, if the Court denies this joint motion to stay proceedings pending appeal, the parties jointly request that the Court extend the deadline for defendants to respond to plaintiffs’ complaint to seven days from the date of the Court’s denial of this joint motion.
Accordingly, the parties respectfully request that this Court enter an order staying all district court proceedings until the Sixth Circuit issues a ruling resolving plaintiffs’ appeal of this Court’s denial of preliminary injunctive relief or until further order of this Court.
Respectfully submitted this 3rd day of January, 2013,

/s/ Jason C. Miller Jason C. Miller (P#76236) Miller Johnson 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj@millerjohnson.com

STUART F. DELERY Principal Deputy Assistant Attorney General
IAN HEATH GERSHENGORN Deputy Assistant Attorney General
PATRICK A. MILES, JR. United States Attorney

Patrick T. Gillen (P#47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu
Peter Breen* Thomas More Society Attorneys for Plaintiffs 29 South LaSalle St. – Suite 440 Chicago, IL 60603 Tel. 312-782-1680 pbreen@thomasmoresociety.org *Application for admission to be filed.

JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director
/s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov
Attorneys for Defendants

Attorneys for Plaintiffs

3

Case 1:12-cv-01096-RJJ Doc #46 Filed 01/03/13 Page 4 of 4 Page ID#771
CERTIFICATE OF SERVICE I hereby certify that on January 3, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI

Case 1:12-cv-01096-RJJ Doc #46-1 Filed 01/03/13 Page 1 of 1 Page ID#772

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:12-cv-01096-RJJ

[PROPOSED] ORDER STAYING PROCEEDINGS PENDING APPEAL This matter having come before the Court upon the parties’ Joint Motion To Stay District Court Proceedings Pending Appeal, IT IS HEREBY ORDERED that the parties’ motion is granted. IT IS FURTHER ORDERED that all district court proceedings are stayed until the Sixth Circuit issues a ruling resolving plaintiffs’ appeal of this Court’s denial of preliminary injunctive relief or until further order of this Court.

Date: _____________

_____________________________ ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

 
 Case 1:12-cv-01096-RJJ Doc #49 Filed 02/15/13 Page 1 of 3 Page ID#777

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

_________________________________)

Case No. 1:12-cv-01096-RJJ

DEFENDANTS’ MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants hereby move to dismiss this action.1 The grounds for this motion are set forth in the accompanying Defendants’ Brief In
Support Of Motion To Dismiss.
Respectfully submitted this 15th day of February, 2013,
STUART F. DELERY Principal Deputy Assistant Attorney General
IAN HEATH GERSHENGORN Deputy Assistant Attorney General
PATRICK A. MILES, JR. United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director
/s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211)
1 Pursuant to W.D. Mich. LCivR 7.1(d), undersigned counsel contacted counsel for plaintiffs about this motion and was informed that plaintiffs oppose the motion.

Case 1:12-cv-01096-RJJ Doc #49 Filed 02/15/13 Page 2 of 3 Page ID#778 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendants
2

Case 1:12-cv-01096-RJJ Doc #49 Filed 02/15/13 Page 3 of 3 Page ID#779
CERTIFICATE OF SERVICE I hereby certify that on February 15, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI

 
 Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 1 of 34 Page ID#780

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:12-cv-01096-RJJ

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 2 of 34 Page ID#781
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................5
ARGUMENT ...................................................................................................................................6
I. THE COURT SHOULD DISMISS PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM.......................................................................6
A. The Preventive Services Coverage Regulations Do Not Substantially Burden Any Exercise Of Religion By For-Profit, Secular Companies And Their Owners....................................................................................................6
i. There is no substantial burden on Autocam because secular, for-profit corporations do not exercise rights under RFRA ........................6
ii. The regulations do not substantially burden the Kennedys’ religious exercise because the regulations apply only to Autocam, a separate legal entity................................................................11
iii. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden ............................................13
B. Even If There Were A Substantial Burden, The Preventative Services Coverage Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests..............................14
i. The regulations significantly advance compelling governmental interests in public health and gender equality ...........................................14
ii. The regulations are the least restrictive means of advancing the government’s compelling interests.......................................................17
II. THE COURT SHOULD DISMISS PLAINTIFFS’ FIRST AMENDMENT CLAIMS ............................................................................................................................19
A. The Regulations Do Not Violate The Free Exercise Clause..................................19
B. The Regulations Do Not Violate The Establishment Clause.................................22
i

Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 3 of 34 Page ID#782 C. The Regulations Do Not Violate The Free Speech Clause....................................24
CONCLUSION ..............................................................................................................................25
ii

Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 4 of 34 Page ID#783
TABLE OF AUTHORITIES
FEDERAL CASES
Am. Friends Serv. Committee Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................20
Anselmo v. Cnty. of Shasta, 873 F. Supp. 2d 1247 (E.D. Cal. 2012)................................................................................8
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................5
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... Passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................20
Braunfeld v. Brown, 366 U.S. 599 (1961).....................................................................................................11, 19
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................15
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)...........................................................................................................12
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).....................................................................................................20, 22
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................12
Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110 (E.D. Penn. Jan. 11, 2013)....................2, 9, 14, 23, 24, 25
Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327 (1987).....................................................................................................10, 11
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................15
Emp't Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).............................................................................................3, 8, 20, 21
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Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 5 of 34 Page ID#784
Franklin v. United States, 992 F.2d 1492 (10th Cir. 1993) ...........................................................................................9
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).................................................................................................6, 17, 19
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ...........................................................................................20
Graham v. Comm’r of Internal Revenue Serv., 822 F.2d 844 (9th Cir. 1987) .............................................................................................17
Grote Indus., LLC v. Sebelius No. 12-00134, 2012 WL 6725905 (S.D. Ind. Dec. 27, 2012)................................21, 23, 24
Grote v. Sebelius, No. 13-1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013) ...................................................21
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .......................................................................................................2, 6
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. Nov. 19, 2012) .............................................2, 9, 21, 22
Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012)..........................................2, 14
Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002) .......................................................................................7
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .........................................................................................7, 8
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) .....................................................................................................7, 13
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. America,
344 U.S. 94 (1952)...............................................................................................................7
Larson v. Valente, 456 U.S. 228 (1982)...........................................................................................................22
LeBoon v. Lancaster Jewish Cmty. Ctr. Assoc., 503 F.3d 217 (3d Cir. 2007).................................................................................................9
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Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 6 of 34 Page ID#785
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ...........................................................................................7
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729 (6th Cir. 2007) .........................................................................8, 12, 14
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................15
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ..............................................................................................17
O'Brien v. U.S. Dep't of Health & Human Servs., No. 12-476, 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012) ......................21, 22, 23, 24, 25
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .........................................................................................22
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................20
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).....................................................................................................11, 16
Rumsfeld v. Forum for Academic & Inst. Rights, 547 U.S. 47 (2006).............................................................................................................24
S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203 (6th Cir. 1990) .....................................................................................17, 18
United States v. Lee, 455 U.S. 252 (1982).....................................................................................1, 10, 18, 19, 20
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................17
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) .........................................................................................17
Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) .............................................................................................7
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STATE CASES Catholic Charities of Diocese of Albany v. Serio,
859 N.E.2d 459 (N.Y. 2006)........................................................................................22, 23 Catholic Charities of Sacramento v. Superior Court,
85 P.3d 67 (Cal. 2004) ...........................................................................................17, 22, 23 McClure v. Sports and Health Club,
370 N.W.2d 844 (Minn. 1985)...........................................................................................10 Swanner v. Anchorage Equal Rights Comm’n,
874 P.2d 274 (Alaska 1994)...............................................................................................10 FEDERAL STATUTES
29 U.S.C. § 1132(d) .......................................................................................................................12 42 U.S.C. § 2000bb-1 ..........................................................................................................6, 7, 8, 9 42 U.S.C. § 2000bb-2(4)..................................................................................................................8 42 U.S.C. § 2000e-1(a) ..............................................................................................................9, 13 42 U.S.C. § 2000e-2(a) ....................................................................................................................9 42 U.S.C. § 300gg-11 ....................................................................................................................21 42 U.S.C. § 300gg-91(a)(1) ...........................................................................................................11
FEDERAL REGULATIONS
26 C.F.R. § 54.9815-2713T ...........................................................................................................11 29 C.F.R. § 2590.715-2713............................................................................................................11 45 C.F.R. § 147.126 .......................................................................................................................21 45 C.F.R. § 147.130 .......................................................................................................................11 75 Fed. Reg. 41,725 (July 19, 2010)..............................................................................................15 77 Fed. Reg. 8725 (Feb. 15, 2012) ....................................................................................15, 16, 19
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Case 1:12-cv-01096-RJJ Doc #50 Filed 02/15/13 Page 8 of 34 Page ID#787 LEGISLATIVE MATERIALS
146 Cong. Rec. S7774-01 (July 27, 2000).......................................................................................8 155 Cong. Rec. S12106-02 (Dec. 2, 2009) ....................................................................................16 155 Cong. Rec. S12265-02 (Dec 3, 2009) .....................................................................................16
MISCELLANEOUS HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines ...................23
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INTRODUCTION Relying largely on claims this Court has already deemed unlikely to succeed, plaintiffs – two manufacturing companies and their shareholders – seek to strike down regulations that are intended to ensure that women have access to health coverage, without cost-sharing, for certain preventive services that medical experts have deemed necessary for women’s health and wellbeing. Plaintiffs’ challenge rests largely on the theory that a for-profit, secular corporation established to engage in manufacturing can claim to exercise a religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be. Indeed, the Supreme Court and this Court have recognized that, “‘[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.’” Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, *7 (W.D. Mich. Dec. 24, 2012) (“Opinion Denying Prelim. Inj.”) (quoting United States v. Lee, 455 U.S. 252, 261 (1982)), motion for injunction pending appeal denied, No. 12-2673 (6th Cir. Dec. 28, 2012), reconsideration denied, No. 12-2673 (6th Cir. Dec. 31, 2012). Nor can such a company’s owners or officers eliminate the legal separation provided by the corporate form to impose their personal religious beliefs on t he corporation’s employees. To hold otherwise, this Court has emphasized, would permit for-profit, secular companies and their shareholders and officers to become laws unto themselves, claiming countless exemptions from an untold number of general laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs. Such a system would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general
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application. Id. This Court, therefore, should once again reject plaintiffs’ effort to bring about an unprecedented expansion of constitutional and statutory free exercise rights.
Indeed, all of plaintiffs’ claims are subject to dismissal for failure to state a claim upon which relief may be granted. With respect to plaintiffs’ Religious Freedom Restoration Act (“RFRA”) claim, none of the plaintiffs can show, as each must, that the preventive services coverage regulations impose a substantial burden on their religious exercise. This Court has already articulated the reasons why. Id. at *6-8. Autocam is a for-profit, secular employer, and a secular entity - by definition – does not exercise religion within the meaning of the Free Exercise Clause or RFRA. Indeed, this Court expressed grave doubts about Autocam’s claim, id. at *4, and the only courts to address the question in this context have held that “secular, for-profit corporations[] do not have free exercise rights,” Hobby Lobby Stores, Inc. v. Sebelius, 870 F . Supp. 2d 1278, 1296 (W.D. Okla. Nov. 19, 2012), motion for injunction pending appeal denied, No. 12-6294, 2012 WL 6930302 ( 10th Cir. Dec. 20, 2012) (“Hobby Lobby Tenth Circuit Order”), application for injunction pending appellate review denied, 133 S. Ct. 641 (Dec. 26, 2012) (Sotomayor, J., in chambers); Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, *8 ( E.D. Pa. Jan. 11, 2013) (same), motion for stay pending appeal denied, No. 13-1144 (3d Cir. Feb. 7, 2013) (“Conestoga Third Circuit Order”) (Ex. 1). The Kennedys’ allegations of a substantial burden on their own personal religious exercise fare no better, as the regulations that purportedly impose such a burden apply only to certain group health plans and health insurance issuers. The Kennedys are neither. It is well established that a corporation and its shareholders and officers are wholly separate entities, and the Court should not permit the Kennedys to eliminate that legal separation to impose their personal religious beliefs on the corporate entity’s group health plan or its employees. Autocam’s owners and shareholders
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cannot use the corporate form alternatively as a shield and a sword, depending on w hat suits them in any given circumstance.
Furthermore, even if a secular entity could exercise religion, the regulations still do not substantially burden the company’s or its owners’ exercise of religion for an independent reason: Any burden caused by the regulations is simply too attenuated to qualify as a substantial burden. Opinion Denying Prelim. Inj., 2012 WL 6845677, at *7. Just as em ployees of Autocam have always retained the ability to choose whether to procure contraceptive services by using the salaries the company pays them or by using some combination of their salaries and other benefits provided by Autocam, under the current regulations those employees retain the ability to choose what health services they wish to obtain according to their own beliefs and preferences. Autocam and its shareholders remain free to advocate against employees’ use of contraceptive services (or any other services). Ultimately, an employee’s health care choices remain those of the employee, not Autocam’s or Autocam’s shareholders. Finally, even if the preventive services coverage regulations were deemed to impose a substantial burden on either plaintiff’s religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling governmental interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to do so can be a part of the workforce on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. The Free Exercise Clause does not prohibit a law that is neutral and generally applicable, even if the law prescribes conduct that an individual’s religion proscribes. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). As this Court correctly concluded, the preventive services coverage regulations fall within this rubric because they do not target, or selectively burden, religiously-motivated
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conduct. The regulations apply to all non-exempt, non-grandfathered plans, not just those of employers with a religious affiliation. Opinion Denying Prelim. Inj., 2012 WL 6845677, at *4-5. Nor do t he regulations violate the Establishment Clause by selectively burdening plaintiffs. Plaintiffs did not rely on this claim in seeking preliminary injunctive relief, and it is meritless. Furthermore, the regulations do not violate plaintiffs’ free speech rights. This Court has already held that the regulations compel conduct, not speech, and that conduct is not inherently expressive so as to warrant First Amendment protection. Id. at *8.
For these reasons, and those set out below, the Court should grant defendants’ motion to dismiss this case in its entirety.
BACKGROUND Defendants have already set out, and the Court is well aware of, the statutory, regulatory, and factual background related to this case. See Defs.’ Br. in Opp’n to Pls.’ Mot. for Prelim. Inj. 4-7, Nov. 9, 2012, E CF No. 17 (“Defs.’ PI Opp’n”); Opinion Denying Prelim. Inj., 2012 WL 6845677, *1-4. Defendants will not repeat it here, except to summarize the proceedings thus far.1 Plaintiffs brought this action to challenge the lawfulness of the preventive services coverage regulations to the extent that they require the health coverage Autocam makes available to its employees to cover certain recommended contraceptive services. Plaintiffs filed suit on October 8, 2012. See Compl., ECF No. 1. They moved for a preliminary injunction on October 10, 2012, relying on their RFRA, Free Exercise Clause, and Free Speech Clause claims. See Pls.’ Br. Supporting Mot. for Prelim. Inj. 3-4, Oct. 10, 2012, ECF No. 9. This Court denied plaintiffs’ motion for a preliminary injunction. The Court held, in relevant part, that plaintiffs were unlikely to succeed on the merits of their RFRA, Free Exercise,
1 Defendants generally will refer to the two company plaintiffs as a single entity, “Autocam,” and to the individual plaintiffs collectively as “the Kennedys.”
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and Free Speech claims. Opinion Denying Prelim. Inj., 2012 WL 6845677 at *4-9. Plaintiffs have appealed the Court’s ruling as to their RFRA claim.2 They also moved the Sixth Circuit Court of Appeals for an injunction pending appeal, which the Sixth Circuit denied. Autocam Corp. v. Sebelius, No. 12-2673, Order (6th Cir. Dec. 28, 2012) (“Autocam Sixth Circuit Order”).3 Shortly thereafter, plaintiffs moved for reconsideration of the Sixth Circuit’s denial of an injunction pending appeal, which was also denied. Autocam Corp. v. Sebelius, No. 12-2673, Order (6th Cir. Dec. 31, 2012).
On February 5, 2013, plaintiffs dismissed their First Amendment Expressive Association claim (Count VI) and all their Administrative Procedure Act claims (Counts IX through XII). Notice of Dismissal of Pls.’ Counts VI and IX – XII, ECF No. 48. In their remaining claims, plaintiffs contend that the preventive services coverage regulations violate RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses.
STANDARD OF REVIEW Defendants move to dismiss the Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Bell
2 Plaintiffs’ opening brief before the Sixth Circuit appears to address this Court’s denial of preliminary relief as to RFRA only. See Appellants’ Principal Br., Feb. 11, 2013, Autocam Corp. v. Sebelius, No. 12-2673. 3 The Sixth Circuit did, however, grant expedition of the appeal. See Sixth Circuit Order.
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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); U.S. Citizens Ass’n v. Sebelius, -- F.3d --, Nos. 11-3327 & 11-3798, 2013 WL 380342, *5 (6th Cir. Feb. 1, 2013).
ARGUMENT I. THE COURT SHOULD DISMISS PLAINTIFFS’ RELIGIOUS FREEDOM
RESTORATION ACT CLAIM A. The Preventive Services Coverage Regulations Do Not Substantially Burden Any
Exercise Of Religion By For-Profit, Secular Companies And Their Owners This Court has already held that plaintiffs are unlikely to establish a substantial burden on any exercise of religion. Opinion Denying Prelim. Inj., 2012 WL 6845677, at *4, 6-8. A Sixth Circuit motions panel agreed, citing this Court’s “reasoned opinion” as well as the Supreme Court’s denial of an injunction pending appeal in Hobby Lobby Stores, Inc., 133 S. Ct. 641. Sixth Circuit Order at 2. This Court’s reasons for denying preliminary injunctive relief warrant dismissal of plaintiffs’ RFRA claim.
i. There is no substantial burden on Autocam because secular, for-profit corporations do not exercise rights under RFRA
Under RFRA, the federal government generally may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). But the government may substantially burden the exercise of religion if the burden “(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).
Here, as this Court has recognized, plaintiffs have not shown that the regulations substantially burden any religious exercise. Opinion Denying Prelim. Inj., 2012 WL 6845677, at *4, 6-8; see also Defs.’ PI Opp’n at 9-18. Any suggestion that Autocam “exercise[s] . . . religion” with the meaning of RFRA cannot be reconciled with Autocam’s self-described status
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as a “for-profit, secular employer[].” C ompl. ¶ 155. The terms “religious” and “secular” are antonyms; a “secular” entity is defined as “not overtly or specifically religious.” See MerriamWebster’s Collegiate Dictionary 1123 ( 11th ed. 2003). Thus, by de finition, a secular company does not engage in any “exercise of religion,” 42 U.S.C. § 2000bb-1(a), as required by RFRA. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he practice[] at issue must be of a religious nature.”); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 83 (D.D.C. 2002), aff’d on other grounds, 333 F.3d 156 (rejecting an organization’s RFRA claim because “nowhere in Plaintiff’s Complaint does it contend that it is a religious organization. Instead, [Plaintiff] defines itself as a ‘ non-profit charitable corporation,’ without any reference to its religious character or purpose.”).
Because Autocam is a secular employer, it is not entitled to the protections of the Free Exercise Clause or RFRA. This is because, although the First Amendment freedoms of speech and association are “right[s] enjoyed by religious and secular groups alike,” the Free Exercise Clause “gives special solicitude to the rights of religious organizations.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (emphasis added); see also, e.g., Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (stating that the Supreme Court’s precedent “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation”) (emphasis added); Hosanna-Tabor, 132 S . Ct. at 706 ( Free Exercise Clause “protects a religious group’s right to shape its own faith and mission”) (emphasis added); Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099, 1102 ( 9th Cir. 2004) (“The Free Exercise Clause protects . . . religious organizations . . . .”) (citations and quotation marks omitted) (emphasis added).
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RFRA was intended only to reinstate the pre-Smith compelling interest test, 42 U.S.C. § 2000bb-1(b), not to expand the scope of that test. The Sixth Circuit has explained, in the parallel RLUIPA context:
The U.S. Supreme Court has not yet defined “substantial burden” as it applies to RLUIPA. Neither does the statute itself contain any definition of the term. The statute's legislative history, however, indicates that the “term ‘substantial burden’ as used in this Act is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden or religious exercise.” 146 Cong. Rec. S7774–01, 7776 ( daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy). Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 733-34 (6th Cir. 2007) (emphasis added). In other words, Supreme Court precedent should guide judicial interpretation of the phrase “exercise of religion” contained in RLUIPA and RFRA.4 Id.; see also Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003) (“Congress defined the term ‘exercise of religion’ only as meaning ‘the exercise of religion under the First Amendment to the Constitution.’”). There is no authority – much less from the Supreme Court – to support plaintiffs’ assertion “that a secular, for-profit corporation has a First Amendment right of free exercise of religion.” Opinion Denying Prelim. Inj., 2012 WL 6845677, at *4; see also, e.g., Anselmo v. Cnty. of Shasta, 873 F. Supp. 2d 1247, 1264 (E.D. Cal. 2012) (“Although corporations and limited partnerships have broad rights, the court has been unable to find a single RLUIPA case protecting the religious exercise rights of a n on-religious organization such as Seven Hills.”). This is powerful evidence that Congress did not intend that a secular, for-profit corporation could engage in any “exercise of religion” under RFRA. Accordingly, the two other district courts and one other circuit court motions panel to have reached the issue in cases like
4 RFRA expressly incorporates the definition of “exercise of religion” contained in RLUIPA. 42 U.S.C. § 2000bb2(4) (“[T]he term ‘exercise of religion’ means religious exercise, as defined in section 2000cc-5 of this title.”); id. § 2000cc-5(7)(A) (“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”).
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this one have rejected claims nearly identical to Autocam’s. See Hobby Lobby Stores, Inc., 870 F. Supp. 2d at 1291-92; Conestoga Wood Specialties Corp., 2013 WL 140110, at *8 (E.D. Pa. Jan. 11, 2013); Conestoga Third Circuit Order, Ex. 1 at 3. This Court should continue to do the same.
Furthermore, no court has ever held that a for-profit, secular corporation is a “religious corporation” for purposes of federal law. For this reason, secular companies cannot permissibly discriminate on the basis of religion in hiring or firing their employees or otherwise establishing the terms and conditions of their employment. Title VII of the Civil Rights Act generally prohibits religious discrimination in the workplace. See 42 U.S.C. § 2000e -2(a). But that bar does not apply to “a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [a corporation] of its activities.” Id. § 2000 e-1(a). It is clear that Autocam does not qualify as a “religious corporation”; it is for-profit, it engages in manufacturing, and it alleges no religious purpose or affiliation. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007).
It would be extraordinary to conclude that Autocam is not a “religious corporation” under Title VII (and it clearly is not) and thus cannot discriminate on the basis of religion in hiring or firing or otherwise establishing the terms and conditions of employment, 42 U.S.C. § 2000e-1(a), but nonetheless “exercise[s] . . . r eligion” under RFRA, id. § 2000bb-1(b).5 Such a conclusion would allow a secular company to impose its owner’s religious beliefs on its employees in a way that denies those employees the protection of general laws designed to protect their health and
5 Indeed, such a conclusion would not only expand the scope of RFRA in an unprecedented way, but would also undermine Congress’s decision to limit the exemption in Title VII to religious organizations. Any company that does not qualify for Title VII’s exemption could simply sue under RFRA to obtain an exemption from Title VII’s prohibition against discrimination in employment. See, e.g., Franklin v. United States, 992 F.2d 1492, 1502 (10th Cir. 1993) (“[E]ven where two statutes are not entirely harmonious, courts must, if possible, give effect to both, unless Congress clearly intended to repeal the earlier statute.”) (citation omitted).
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well-being (including Title VII). A host of laws and regulations would be subject to attack. Opinion Denying Prelim. Inj., 2012 WL 6845677, at *7. Moreover, any secular company would have the same right as a r eligious organization to, for example, require that its employees “observe the [company owner’s] standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.” Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 n.4 (1987). These consequences underscore why the Free Exercise Clause, RFRA, and Title VII distinguish between secular and religious organizations, with only the latter receiving special protection.
It is significant that Autocam elected to organize itself as a secular, for-profit entity and to enter commercial activity. “‘When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on ot hers in that activity.’” Opinion Denying Prelim. Inj., 2012 WL 6845677, at *7 (quoting Lee, 455 U .S. at 261); see also McClure v. Sports & Health Club, 370 N .W.2d 844, 853 ( Minn. 1985) (“By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs.”). Having chosen this path, the corporation may not impose its owners’ personal religious beliefs on its employees (many of whom may not share, or even know of, the owners’ beliefs). In this respect, “[v]oluntary commercial activity does not receive the same status accorded to directly religious activity.” Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994) (interpreting the Free Exercise Clause of the Alaska Constitution). Any burden is therefore caused by t he company’s “choice to enter into a
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commercial activity.” Id.; cf. Roberts v. U.S. Jaycees, 468 U.S. 609, 635-36 (1984) (O’Connor, J., concurring in part and concurring in judgment).6
ii. The regulations do not substantially burden the Kennedys’ religious exercise because the regulations apply only to Autocam, a separate legal entity
The preventive services coverage regulations also do not substantially burden the Kennedys’ religious exercise, for reasons this Court recognized in its prior ruling. By their terms, the regulations apply to group health plans and health insurance issuers. 42 U.S.C. § 300gg 91(a)(1); 26 C.F.R. § 5 4.9815-2713T; 29 C .F.R. § 2590. 715-2713; 45 C.F.R. § 14 7.130. The Kennedys are neither. The Kennedys nonetheless claim that the regulations substantially burden their religious exercise because the regulations require the group health plans sponsored by their for-profit secular companies to provide health insurance that includes contraceptive coverage.
But a plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory; to constitute a substantial burden within the meaning of RFRA, the burden must be imposed on the plaintiff himself. “To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on t he exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Braunfeld v. Brown, 366 U.S. 599, 606 ( 1961). Indeed, “[i]n our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by pl acing indirect costs on an individual’s activity. Recognizing this . . . [ t]he federal government . . . ha [s] identified a substantiality threshold as the tipping point for requiring heightened justifications for
6 A for-profit, secular employer like Autocam therefore stands in a fundamentally different position from a church or a religiously-affiliated non-profit organization. Cf. Amos, 483 U.S. at 344 (Brennan, J., concurring in the judgment) (“The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation . . . . but that [its] activities themselves are infused with a religious purpose.”).
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governmental action.” Combs v. Homer-Center Sch. Dist., 540 F .3d 231, 262 ( 3d Cir. 2008) (Scirica, C.J., concurring); see also Living Water Church of God, 258 Fed. App’x at *734 (“In the ‘Free Exercise’ context, the Supreme Court has made clear that the ‘substantial burden’ hurdle is high . . . .” ). Here, any burden on t he Kennedys’ religious exercise results from obligations that the regulations impose on a legally separate, secular entity.7
The Kennedys’ theory boils down to the claim that what’s done to the company (or group health plans sponsored by the company) is also done to its owners. But, as a legal matter, that is simply not so, as the very purpose of incorporation “is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 ( 2001). “Standing between the Kennedy Plaintiffs and the decisions some Autocam employees make to procure contraceptive services are not only the independent decisions of an employee and the employee’s health care provider, but also the corporate form itself.” Opinion Denying Prelim. Inj., 2012 WL 6845677, a t *7. The Kennedys should not be permitted to eliminate that legal separation only when it suits them to impose their personal religious beliefs on Autocam’s group health plans or its large number of employees. Id. (“The law protects th[e] separation between the corporation and its owners for many worthwhile purposes. Neither the law nor equity can ignore the separation when assessing claimed burdens on the individual owners’ free exercise of religion caused by requirements imposed on the corporate entities they own.”).
Although the preventive services coverage regulations do n ot require the Kennedys to provide contraceptive services directly, their complaint appears to be that, through Autocam’s
7 The attenuation is in fact twice removed. A group health plan is a legally separate entity from the company that sponsors it. 29 U.S.C. § 1132(d). And, as explained below, Autocam is a legally separate entity from the Kennedys.
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group health plans and the benefits Autocam provides to employees, the Kennedys will facilitate conduct (the use of contraceptives) that they find objectionable. But this complaint has no limits, and its necessary implications are “troubling.” Opinion Denying Prelim. Inj., 2012 WL 6845677, at *7. A company provides numerous benefits to its employees, including a salary, and by doing so in some sense facilitates whatever use its employees make of those benefits. But the Kennedys have no right to control the choices of their company’s employees, many of whom (having been hired, presumably, without regard to their religious views) may not share the Kennedys’ religious beliefs, when making use of their benefits. These employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations. More generally, if an owner’s or shareholder’s religious beliefs were automatically imputed to the company, any secular company with a religious owner or shareholder would be permitted to discriminate against the company’s employees on the basis of religion in establishing the terms and conditions of employment. This result would constitute a wholesale evasion of the rule that a company must be a “religious organization[]” to assert free exercise rights, Hosanna-Tabor, 132 S. Ct. at 706, or a “religious corporation” to permissibly discriminate on the basis of religion in hiring or firing its employees or otherwise establishing the terms and conditions of their employment, 42 U.S.C. § 2000e-1(a).
iii. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden
Even assuming that Autocam exercises religion within the meaning of RFRA and that the legal separation created by the corporate form can be pierced when the corporation or its owners want it to be, the regulations still do not substantially burden plaintiffs’ religious exercise. For reasons this Court has recognized, any burden imposed by the regulations is too attenuated to satisfy RFRA’s substantial burden requirement. Indeed,
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[T]he [regulatory] requirement differs little in substance from Autocam’s current practice of providing undesignated cash that employees are free to apply to uncovered health expenses – including contraception – of their choosing. In particular, the Autocam Plaintiffs already give each employee up to $1500 for a health savings account . . . .
Implementing the challenged [regulations] will keep the locus of decision-making in exactly the same place: namely, with each employee, and not the Autocam plaintiffs. It will also involve the same economic exchange at the corporate level: employees will earn a wage or benefit with their labor, and money originating from the Autocam Plaintiffs will pay for it . . . . [I]n both situations, the Autocam Plaintiffs are responsible to pay wages or benefits that their employees earn; and in neither situation do the wages and benefits earned pay – directly or indirectly – for contraception products and services unless an employee makes an entirely independent decision to purchase them.
Opinion Denying Prelim. Inj., 2012 WL 6845677, at *6; see also, e.g., Hobby Lobby Tenth
Circuit Order, 2012 WL 6930302, at *3 (deeming it unlikely that the Tenth Circuit “will extend
the reach of RFRA to encompass the independent conduct of third parties with whom the
plaintiffs have only a commercial relationship”); Conestoga Third Circuit Order, Ex. 1 a t 3
(agreeing with the district court that any burden on the corporation’s owners’ religious exercise
would be “indirect” and “too attenuated” to be considered “substantial”).
The Sixth Circuit has emphasized that “a ‘substantial burden’ is a difficult threshold to
cross.” Living Water Church of God, 258 Fed. App’x at 736, and this Court soundly concluded
that “[p]laintiffs are unlikely to cross it,” Opinion Denying Prelim. Inj., 2012 WL 6845677, at
*6. Because the regulations do not substantially burden any religious exercise by plaintiffs, the
regulations do not violate RFRA, and Count VIII should be dismissed.
B. Even If There Were A Substantial Burden, The Preventive Services Coverage Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests
i. The regulations significantly advance compelling governmental interests in public health and gender equality
Even if plaintiffs could demonstrate a substantial burden on their religious exercise, they
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would not prevail because the regulations are justified by two compelling governmental interests, and are the least restrictive means to achieve those interests. See also Defs.’ PI Opp’n at 18-29. First, “the Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.” Mead v. Holder, 766 F. Supp. 2d 16, 4 3 (D.D.C. 2011); see also Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998) (concluding that “public health is a compelling government interest”); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995) (“The State . . . has a compelling interest in the health of expectant mothers and the safe delivery of newborn babies.”) (citing Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992)).
There can be no question that this compelling interest in the promotion of public health is furthered by the regulations at issue here. As explained in the interim final regulations, the primary predicted benefit of the regulations is that “individuals will experience improved health as a r esult of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. at 41,733; see also 77 Fed. Reg. at 8728. I ndeed, “[b]y expanding coverage and eliminating cost sharing for recommended preventive services, these interim final regulations could be expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733. Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven in many cases to have negative health consequences for both women and a developing fetus. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103. C ontraceptive coverage also
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helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103. In fact, “pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . a nd cyanotic heart disease, and for women with the Marfan Syndrome.” Id. at 103-04.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations. As the Supreme Court explained in Roberts, there is a fundamental “importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” 468 U .S. at 626. Thus, “[a]ssuring women equal access to . . . goods , privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA gender-specific preventive health services for women, Congress made clear that the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “women have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) . These costs result in women often forgoing preventive care. See, e.g., 155 C ong. Rec. S12265-02, S12274. Accordingly, this disproportionate burden on women creates “financial barriers . . . that prevent women from achieving health and well-being for themselves and their families.” IOM REP. at 20. Thus, Congress intended to equalize health care for women and men in the area of preventive care, including the provision of family planning services for women. See, e.g., 155 C ong. Rec. S12265-02, S12271; see also 77 Fed. Reg. at 8728. Congress’s attempt to equalize the provision of preventive health care services,
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with the resulting benefit of women being able to contribute to the same degree as men as healthy and productive members of society, furthers a compelling governmental interest. Cf. Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
ii. The regulations are the least restrictive means of advancing the government’s compelling interests
The regulations, moreover, are the least restrictive means of furthering the government’s dual interests. When determining whether a particular regulatory scheme is “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme – or whether the scheme can otherwise be modified – without undermining the government’s compelling interest. See S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 ( 6th Cir. 1990) (describing the least restrictive means test as “the extent to which accommodation of the defendant would impede the state’s objectives”); United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (same); see also, e.g., United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011); New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 946 (1st Cir. 1989) (Breyer, J.).
Taking into account the “particular claimant whose sincere exercise of religion is [purportedly] being substantially burdened,” O Centro, 546 U.S. at 430-31, exempting Autocam and similarly-situated companies from the obligation to make available to its employees a health plan that covers contraceptive services would remove these employees from the very protections that were intended to further the compelling interests recognized by the government. See, e.g., Graham v. Comm’r of Internal Revenue Serv., 822 F .2d 844, 853 (9th Cir. 1987) (“Where, as here, the purpose of granting the benefit is squarely at odds with the creation of an exception, we think the government is entitled to point out that the creation of an exception does violence to the rationale on which the benefit is dispensed in the first instance.”). Each woman who wishes to
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use contraceptives and who works for Autocam or a similarly-situated employer (and each woman who is a covered spouse or dependent of an employee) – or, for that matter, any woman in such a position in the future – is significantly disadvantaged when her employer chooses to provide a plan that fails to cover such services. As revealed by t he IOM Report, those female employees (and covered spouses and dependents) would be, as a whole, less likely to use contraceptive services in light of the financial barriers to obtaining them and would then be at risk of unhealthier outcomes, both for the women themselves and their potential newborn children. IOM REP. at 102-03. They also would have unequal access to preventive care and would be at a competitive disadvantage in the workforce due to their inability to decide for themselves if and when to bear children.8 These harms would befall female employees (and covered spouses and dependents) who do not share their employer’s religious beliefs and might not have been aware of those beliefs when they joined the ostensibly secular company. Autocam’s desire not to make available a health plan that permits such individuals to exercise their own choice as to contraceptive use must yield to the Government’s compelling interest in avoiding the adverse and unfair consequences that would be suffered by s uch individuals as a result of the company’s decision. See Lee, 455 U.S. at 261 (noting that a religious exemption is improper where it “operates to impose the employer’s religious faith on the employees”); S. Ridge Baptist Church, 911 F.2d at 1209, 1211 n.6.
8 Plaintiffs’ allegations regarding the pre- and postnatal care available to Autocam employees, see Compl. ¶ 38, do not advance plaintiffs’ RFRA claim. As explained in the IOM Report, unwanted or unplanned pregnancies are associated with adverse health outcomes for a variety of reasons unrelated to a lack of access to pre- and post-natal care. IOM REP. at 103. Thus, access to such care, while certainly desirable, does not fully address the compelling interest in women’s and infants’ health underlying the preventive services coverage regulations. And access to preand postnatal care does little to advance the government’s compelling interest in gender equality. Nor does the care available to Autocam’s employees reveal anything about care provided for employees of similarly-situated employers.
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Should plaintiffs be permitted to extend the protections of RFRA to any employer whose owners or shareholders object to the operation of the regulations, it is difficult to see how the regulations could continue to function or be enforced in a rational manner. See O Centro, 546 U.S. at 435. Providing for voluntary participation among for-profit, secular employers would be “almost a contradiction in terms and difficult, if not impossible, to administer.” Lee, 455 U.S. at 258. We are a “cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to countless medical services. If any organization, no matter the high degree of attenuation between the mission of that organization and the exercise of religious belief, were able to seek an exemption from the operation of the preventive services coverage regulations, it is difficult to see how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women. Indeed, women who receive their health coverage through corporations like Autocam would be subject to negative health and employment outcomes because they had obtained employment with a company that imposes its owners’ religious beliefs on their health care needs. See 77 Fed. Reg. at 8728.
Thus, even if there were a substantial burden, the regulations serve compelling governmental interests and are the least restrictive means of achieving those interests, and Count VIII should accordingly be dismissed. II. THE COURT SHOULD DISMISS PLAINTIFFS’ FIRST AMENDMENT CLAIMS
A. The Regulations Do Not Violate The Free Exercise Clause As explained above, a for-profit, secular employer like Autocam does not engage in any exercise of religion protected by the First Amendment. But even if it did, the preventive services
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coverage regulations do not violate the Free Exercise Clause because – as this Court and numerous others have held – the regulations are neutral laws of general applicability. Opinion Denying Prelim. Inj., 2012 WL 6845677 at *5; see also Defs.’ PI Opp’n at 29-32.
A neutral and generally applicable law does not violate the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Smith, 494 U.S. at 879; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). The challenged regulations are neutral and generally applicable because they “do[] not target a particular religion or religious practice or have as [their] objective the interference with a particular religion or religious practice.” Opinion Denying Prelim. Inj., 2012 WL 6845677 at *5. Rather, the regulations “appl[y] to all non-exempt, non-grandfathered plans,” and, to the extent the regulations burden on pl aintiffs’ religious exercise, they do so only “incidentally.” Id.
The Complaint suggests two ways in which the regulations are not neutral and generally applicable, neither of which has merit. First, plaintiffs aver that the regulations contain “categorical exemptions.” Compl. ¶ 111. But as this Court and numerous others have recognized, the existence of categorical exemptions “does not mean that the law does not apply generally.” Opinion Denying Prelim. Inj., 2012 WL 6845677 at *5 (citing United States v. Lee, 455 U .S. 252, 261 (1982)); see Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Olsen v. Mukasey, 541 F.3d 827, 832 ( 8th Cir. 2008); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 ( 10th Cir. 2006); Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 961 ( 9th Cir. 1991). The regulations “appl[y] to all non-grandfathered, nonexempt plans, regardless of employers’ religious persuasions, and this is enough to create a neutral law of general application.” Opinion Denying Prelim. Inj., 2012 WL 6845677 at *5.
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Second, plaintiffs claim that defendants have created a sy stem of individualized exemptions. Compl. ¶ 111. To warrant strict scrutiny, however, a system of individualized exemptions must be one that enables the government to make a subjective, case-by-case inquiry of the reasons for the relevant conduct, and the government must utilize that system to grant exemptions for secular reasons but not for religious reasons. Smith, 494 U .S. at 884. Plaintiffs point to no such system with respect to the challenged regulations, and there is none. Plaintiffs incorrectly suggest that HHS’ purported authority to grant “waivers,” Compl. ¶ 57, 101, permits individualized exemptions from the challenged regulations. Plaintiffs appear to reference the annual limits waiver program. See 42 U.S.C. § 300gg-11; 45 C .F.R. § 147.126. T he ACA’s annual limits provision restricts annual dollar limits on e ssential health benefits provided by health insurance issuers and group health plans. See id. The Secretary of HHS had the authority to waive these restrictions for plans if compliance “would result in a significant decrease in access to benefits under the plan or health insurance coverage or would significantly increase premiums for the plan or health insurance coverage.” 45 C.F.R. § 147.126(d)(3). These waivers are not related to the challenged regulations, however, and those non-exempt, non-grandfathered plans that received such a waiver must provide the required preventive services coverage.
Virtually every court to consider similar claims has agreed with this Court’s conclusions. See Conestoga Third Circuit Order, Ex. 1 at 3; O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476 (CEJ), 2012 W L 4481208, *7 -9 (E.D. Mo. Sept. 28, 2012), stay pending appeal granted on ot her grounds, No. 12-3357 (8th Cir. Nov. 28, 2 012); Conestoga Wood Specialties Corp., 2013 WL 140110, at *6-9, *18; Grote Indus., LLC v. Sebelius, No. 4:12-cv00134-SEB-DML, 2012 WL 6725905, *7-8 (S.D. Ind. Dec. 27, 2012), injunction pending appeal granted on other grounds, No. 13-1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013); Hobby Lobby
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Stores, Inc., 870 F . Supp. 2d a t 1287-91; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006); Catholic Charities of Sacramento v. Superior Court, 85 P.3d 67, 81-87 (Cal. 2004); Defs.’ PI Opp’n at 29-32.
Because the regulations are neutral and generally applicable, and therefore do not violate the Free Exercise Clause, Counts I, II, III, and VII should be dismissed.
B. The Regulations Do Not Violate The Establishment Clause “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). A law that discriminates among religions by “aid[ing] one religion” or “prefer[ring] one religion over another” is subject to strict scrutiny. Id. at 246 (quotations omitted); see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989). Although plaintiffs’ theory is difficult to discern, they appear to claim that the preventive services coverage regulations violate the Establishment Clause by allegedly imposing a “selective burden on Plaintiffs” and “vest[ing] HRSA with unbridled discretion” as regards the “religious employer” exemption. Compl. ¶¶ 135-37. These contentions lack merit. Plaintiffs’ allegation that they are selectively burdened by the regulations mirrors their Free Exercise argument that the regulations are not generally applicable. See Lukumi, 508 U.S. at 543 (explaining that a generally applicable law does not “in a selective manner impose burdens only on c onduct motivated by r eligious belief”); see, e.g., O’Brien, 2012 WL 4481208, at *8. That argument fails, for reasons explained already. See supra at 19-22; Opinion Denying Prelim. Inj., 2012 WL 6845677 at *5. Likewise, plaintiffs miss the mark with their conclusory assertions about HRSA and the “religious employer” exemption. Indeed, plaintiffs misunderstand the regulations when they
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assert – throughout the Complaint – that the regulations provide HRSA “unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of ‘religious employers’” or to individuals. Compl. ¶¶ 93, 125, 130-31, 136-37, 154-55. That is incorrect. The plan of any employer that meets the criteria for the “religious employer” exemption is not required to cover contraceptive services. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Feb. 6, 2013) ; see, e.g., Grote, 2012 WL 6725905, at *8. To be sure, secular, for-profit corporations such as Autocam do not meet these criteria, and therefore do not benefit from the “religious employer” exemption, Compl. ¶ 53, but that is not itself a violation of the Establishment Clause:
Accommodations of religion are possible because the legislative line-drawing to which the plaintiffs object, between the religious and the secular, is constitutionally permissible. The religious employer exemption, by necessity, distinguishes between religious and secular employers, and HHS has selected a logical bright line between the two . . . . I f the Constitution required Congress to provide exemptions for such employers whenever an exemption was also allowed for churches organized specifically for the purpose of promoting a religion, the accommodation would swallow the rule. O’Brien, 2012 WL 4481208, at *10; Conestoga Wood Specialties Corp., 2013 WL 140110, a t *15 (“A statute does not violate the Establishment Clause merely because it distinguishes between secular and religious organizations.”); see also Catholic Charities of Diocese of Albany, 859 N.E.2d at 459; Catholic Charities of Sacramento, 85 P.3d at 67.9 Because plaintiffs fail to state a plausible claim under the Establishment Clause, Count VI of the Complaint should be dismissed.
9 Even if the regulations were not neutral and generally applicable, they would not violate the Free Exercise Clause because they satisfy strict scrutiny. See supra at 14-19.
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C. The Regulations Do Not Violate The Free Speech Clause The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights (“FAIR”), 547 U.S. 47, 61 (2006). Plaintiffs have already advanced their Free Speech theory in this case; this Court soundly rejected it as “not persuasive.” Opinion Denying Prelim. Inj., 2012 WL 6845677, at *8; see also Defs.’ PI Opp’n at 35-37. Every court to rule on similar claims has agreed. See O’Brien, 2012 WL 4481208, at *11-13 (dismissing identical Free Speech claim); Conestoga Third Circuit Order, Ex. 1 at 3 (agreeing with the district court’s finding that plaintiffs’ Free Speech claim had “little likelihood of success” because the regulations affect conduct, not speech); Grote, 2012 WL 6725905, at *8-10 (same). The preventive services coverage regulations do not require plaintiffs – or any other person, employer, or other entity – to say anything. Like the statute at issue in FAIR, “the contraceptive coverage requirement ‘regulates conduct, not speech. It affects what [employers] must do . . . not what they may or may not say.’” Opinion Denying Prelim. Inj., 2012 WL 6845677, at *8 ( quoting FAIR, 547 U .S. at 60). And, as in FAIR, “the contraceptive coverage requirement differs from cases concerning compelled-speech violations, in which the violations ‘resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.’” Id. (quoting FAIR, 547, U.S. at 63). The conduct required by the regulations is not “inherently expressive,” such that it is entitled to First Amendment protection. Id.; see FAIR, 547 U .S. at 66; see also O’Brien, 2012 W L 4481208, a t *12; Conestoga Third Circuit Order, Ex. 1 at 3-4. Thus, plaintiffs’ Free Speech clause claim fails, and Counts VI and VII of the Complaint should be dismissed.10
10 To the extent Count VII invokes the Free Exercise Clause, it fails for reasons explained earlier. Supra at 19-22.
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CONCLUSION For the forgoing reasons, this Court should grant defendants’ motion to dismiss this case in its entirety. Respectfully submitted this 15th day of February, 2013,
STUART F. DELERY Principal Deputy Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General PATRICK A. MILES, JR. United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on February 15, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI

Case 1:12-cv-01096-RJJ Doc #50-1 Filed 02/15/13 Page 1 of 18 Page ID#814
Exhibit 1 Conestoga Third Circuit Order

CCaassee: 13:1-21-1c4v4-010D9o6c-RumJJenDt:o0c0#35101-111F6i1le0d3802/1P5/a1g3e:P1age D2aotfe1F8ilePd:a0g2e/0ID7#/2801153
January 29, 2013 CCO-046-E
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 13-1144
_____________
CONESTOGA WOOD SPECIALITIES CORPORATION; NORMAN HAHN; NORMAN LEMAR HAHN;
ANTHONY H. HAHN; ELIZABETH HAHN; KEVIN HAHN, Appellants
v.
SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE TREASURY;UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES
DEPARTMENTOF THE TREASURY (E.D. Pa. No. 5-12-cv-06744)
Before: RENDELL, JORDAN and GARTH, Circuit Judges
OPINION/ORDER RE EXPEDITED MOTION FOR INJUNCTION
Before us is a motion for a stay pending appeal, which, in our Court, is an extraordinary remedy. See United States v. Cianfrani, 573 F.2d 835, 846 (3d Cir. 1978). This case involves a challenge to the enforcement provisions of the Patient Protection and Affordable Care Act (the ―ACA‖) and related regulations that require Conestoga to include coverage for contraception – including abortifacients and sterilization – in its employee health insurance plan. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. 8725 (Feb. 15, 2012). In essence, Plaintiffs Conestoga Wood Specialties Corporation, a secular, for-profit corporation, and five of its shareholders, the Hahns, claim that providing the mandated coverage would violate their religious beliefs. Plaintiffs brought suit in the Eastern District of Pennsylvania and filed a motion for a preliminary injunction to enjoin enforcement of the regulations. After holding an evidentiary hearing, the District Court issued a 34-page opinion on January 11, 2013, detailing its reasons for denying injunctive relief to Plaintiffs. See Conestoga Wood Specialties Corp. v. Sebelius, --- F. Supp. 2d ---, No. 12-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013). Plaintiffs subsequently filed a motion for a stay pending appeal in this Court.

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As Judge Jordan notes, the standard for obtaining a stay pending appeal is essentially the same as that for obtaining a preliminary injunction. ―Apreliminary injunction is an extraordinary remedy never awarded as of right.‖ Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). To qualify for preliminary injunctive relief, a party must demonstrate ―()1a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.‖ Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). Therefore, in assessing the present motion for a stay pending appeal, we must consider the same four factors that the District Court considered after an evidentiary hearing, ultimately concluding that preliminary relief was not warranted.
Such stays are rarely granted, because in our Court the bar is set particularly high. Indeed, we have said that an ―injnuction shall issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.‖ N.J. Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (citation omitted). In other words, ―a[] plaintiff‘s failure to establish any element in its favor renders a preliminary injunction inappropriate.‖ NutraSweet Co. v. Vit-Mar Enter., Inc., 176 F.3d 151, 153 (3d Cir. 1999). This standard distinguishes the present case from most of the cases cited by Judge Jordan in his dissent, in which those courts applied a ―slidnig scale‖ standard, whereby preliminary injunctive relief may be granted upon particularly strong showing of one factor. In those cases, ―t[]he more the balance of harms tips in favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that it will ultimately prevail.‖ Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012).1
1 See also Grote v. Sebelius, --- F.3d ---, 13-1077, 2013 WL 362725, at *3 (7th Cir. Jan. 30, 2013) (adopting the reasoning of Korte and applying the same ―sldiing scale‖ standard); Monaghan v. Sebelius, --- F. Supp. 2d ---, No. 12-15488, 2012 WL 6738476, at *3 (E.D. Mich. Dec. 30, 2012) (applying a standard that ―c[]ourts . . . may grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued‖); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-3459, slip op. at 8 (W.D. Mo. Dec. 20, 2012) (applying a sliding scale standard and finding that ―teh balance of equities tip strongly in favor of injunctive relief in this case and 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‖); Tyndale House Publishers, Inc. v. Sebelius, --- F. Supp. 2d ---, No. 121635, 2012 WL 5817323, at *4 (D.D.C. Nov. 16, 2012) (applying a sliding scale standard by which ―i[]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor‖).
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To be sure, the law requires us to balance the factors against each other; however Judge Jordan overstates the significance of Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir. 1978), in favor of applying a less stringent standard. The fact of the matter is that this Court has not sanctioned the ―slidign scale‖ standard employed in other courts of appeals. Accordingly, we must examine each factor and determine whether Plaintiffs have met their burden as to each element.
We agree with the District Court‘s ruling that Plaintiffs have not met their burden in demonstrating likelihood of success on the merits. We find the District Court‘s reasoning persuasive and we incorporate it by reference herein. In short, it determined that Plaintiffs had not demonstrated their likelihood of success on the merits of their claims under either the First Amendment or the Religious Freedom Restoration Act (―RFRA‖). Conestoga Wood Specialties Corp., 2013 WL 140110 at *18. The District Court determined that, as a secular, for-profit corporation, Conestoga has no free exercise rights under the First Amendment, id. at *6-8, and is not a ―perso‖n under the RFRA, id. at *10.
Concerning the Hahns‘ rights under the Free Exercise Clause of the First Amendment, the District Court concluded that the ACA regulations are generally applicable because they are not specifically targeted at conduct motivated by religious belief, and are neutral because the purpose of the regulations is to promote public health and gender equality instead of targeting religion. Id. at *8-9. Because a neutral law of generally applicability need only be ―ratioanlly related to a legitimate government objective‖ to be upheld – and the government demonstrated that the regulations are just that – the District Court concluded that the Hahns‘ challenge to the regulations under the Free Exercise Clause were not likely to succeed. Id. (citing Combs v. Home-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008)). Likewise, the District Court found that the Hahns‘ claims under the RFRA were not likely to succeed because the burden imposed by the regulations does not constitute a ―usbstantial burden‖ under the RFRA. While this question presents a close call, id. at *12, the District Court ultimately concluded that any burden imposed by the regulations would be too attenuated to be considered substantial and that any burden on the Hahns‘ ability to exercise their religion would be indirect, id. at *14.
Furthermore, regarding Plaintiffs‘ claim under the Establishment Clause of the First Amendment, the District Court found that the ―religoius employer exemption‖ of the ACA does not violate the Establishment Clause because it applies equally to organizations of every faith and does not favor one denomination over another, and does not create excessive government entanglement with religion. Id. at *15-16. Finally, the District Court found that Plaintiffs‘ Free Speech claim had little likelihood of success because the ACA regulations ―affect[] what [Plaintiffs] must do . . . not what they may or may not say,‖ id. at *17 (quoting Rumsfeld v. Forum for Academic and Institutional
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Rights, 547 U.S. 47, 60 (2006)), and the regulations do not interfere with Plaintiffs‘ expression of their opinions regarding contraceptives.
While we note that the issues in this case have not been definitively settled by this Court or the Supreme Court, we nonetheless find that Plaintiffs failed to prove a ―reasonablelikelihood of success on the merits,‖ as required by law. See Assoc. N.J. Rifle and Pistol Clubs v. Governor of the State of New Jersey, --- F.3d ---, No. 12-1624, 2013 WL 336680, at *2 (3d Cir. Jan. 30, 2013). Judge Goldberg‘s reasoning comports with that of other courts who analyzed the issue of whether a stay should be granted pending appeal in the same situation based on the same factors, and the same standard, that we do. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, at *3 (10th Cir. Dec. 20, 2012) (concluding that the reach of the RFRA does not ―encmo pass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship‖). Plaintiffs and Judge Jordan take issue with certain aspects of Judge Goldberg‘s analysis and view of the case law; however, we conclude that his reasoning is sound and is not likely to be overturned on appeal.
While we recognize that, as Judge Jordan urges, the rights at stake are important, we do not, unlike other courts, relax our standard depending on the nature of the right asserted. Given our standard, because Plaintiffs failed to prove their likelihood of success on the merits, we DENY their request for extraordinary relief. Judge Garth is filing a concurrence and Judge Jordan is filing a dissent.
By the Court,

Dated: MB/cc:

/s/Marjorie O. Rendell Circuit Judge
2/7/13 Charles W. Proctor, III, Esq. Randall L. Wenger, Esq. Michelle Renee Bennett, Esq. Alisa B. Klein, Esq. Mark B. Stern, Esq. Michelle Renee Bennett, Esq.

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Conestoga Wood v. Sect‘y Dept. HHS No. 13-1144

January 29, 2013 CCO-046-E

GARTH, Circuit Judge, concurring.

I concur wholeheartedly in Judge Rendell‘s majority opinion, which correctly outlines this Court‘s standard of review in motions seeking an injunction pending appeal and which denies the plaintiffs‘1 motion to enjoin the Affordable Care Act‘s furnishing of contraceptives to women. I also agree with Judge Rendell that Conestoga has failed to carry its burden of demonstrating that it is likely to be successful in any of its claims under the First Amendment or the RFRA. In reaching this conclusion, as Judge Rendell points out, the District Court convincingly disposed of Conestoga's arguments.

I write separately in order to highlight what I have found to be particularly persuasive reasoning advanced both by District Court Judge Goldberg‘s thorough and comprehensive opinion in this case2 and by our sister Circuits, most notably the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012).3 I have also found the opinion of Judge Judge Ilana Rovner of the Seventh Circuit, writing in dissent in Grote v. Sebelius, 13-1077, 2013 WL 362725 at *415 (7th Cir. Jan. 30, 2013), to dispositively answer all of the arguments of Conestoga and Judge Jordan. I conclude, as Judge Rovner‘s opinion does, that Conestoga‘s complaint is flawed and without the likelihood of success necessary to warrant an injunction.

I begin by noting that Conestoga moved for an injunction pending appeal before the District Court. That motion was denied; Conestoga Wood Specialities Corp. v. Sebelius, No. 12-6744, 2013 WL 140110 at *18 (E.D. Pa. Jan. 11, 2013); and Conestoga renewed the motion before us. See F. R. App. P. 8 (a). As Judge Rendell has discussed

1 For purposes of identification, except as otherwise specified I will refer to the plaintiffs as ―Conestoga,‖ inasmuch as the for-profit corporation Conestoga is the only entity that has any direct obligations under the ACA.
2 Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013).
3 See also Autocam Corp. v. Sebelius, No. 12-2673, slip op. (6th Cir. Dec. 28, 2012). I also note, as an aside, that Justice Sotomayor, sitting as a single Circuit Justice for the Tenth Circuit, denied the plaintiffs in Hobby Lobby an injunction pending review, reasoning that ―Applicants do not satisfy the demanding standard for the extraordinary relief they seek.‖ Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 643 (Sotomayor, Circuit Justice Dec. 26, 2012).

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(Maj. Op. at 2), the analytic framework governing such requests is well established: ―In ruling on a motion for a preliminary injunction, the district court must consider: (1) the likelihood that the plaintiff will prevail on the merits at final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest. The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.‖ Merch. & Evans, Inc. v. Roosevelt Bldg. Products Co., Inc., 963 F.2d 628, 632-33 (3d Cir. 1992) (citations omitted).
I focus my attention in this concurrence on the first factor; i.e, whether Conestoga has shown a likelihood of success on the merits. Because this Court requires that all four factors be satisfied, Conestoga must demonstrate first that it is ―likely to prevail on the merits.‖ Constructors Ass‘n of W. Pennsylvania v. Kreps, 573 F.2d 811, 814 (3d Cir. 1978). See also Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (―[A]s a prerequisite to the issuance of a preliminary injunction the moving party must generally show: (1) a reasonable probability of eventual success in the litigation . . . .‖). I conclude that Conestoga has demonstrated no such likelihood of success.
Conestoga seeks to demonstrate that it, Conestoga Wood Specialties Corporation—the for-profit corporate entity that would be required under the ACA to participate in an insurance plan for its employees that includes coverage of various contraceptives—has religious views that are entitled to legal protection and that these religious views are identical with those of its owners, the Hahns.
As the District Court properly recognized, this argument fails to account for the fact that for-profit corporate entities, unlike religious non-profit organizations, do not— and cannot—legally claim a right to exercise or establish a ―corporate‖ religion under the First Amendment or the RFRA. As the District Court noted, ―[g]eneral business corporations … do not pray, worship, observe sacraments or take other religiouslymotivated actions separate and apart from the intention and direction of their individual actors.‖ Contestoga 2013 WL 140110 at *7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291 (W.D. Okla. 2012)). Unlike religious non-profit corporations or organizations, the religious liberty relevant in the context of for-profit corporations is the liberty of its individuals, not of a profit-seeking corporate entity.4
4 I also note in this connection that President Obama has recently proposed permitting a broad range of religious nonprofit organizations who object to providing contraception coverage to decline to do so. Coverage of Certain Preventive Services Under the Affordable Care Act, http://www.ofr.gov/OFRUpload/OFRData/2013-02420_PI.pdf (proposed Jan. 30, 2013).
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Conestoga further claims that it should be construed as holding the religious beliefs of its owners. This claim is belied by the fact that, as the District Court correctly noted, ―[‗i]ncorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs‘ . . . . It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.‖ Contestoga, 2013 WL 140110 at *8 (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)). As Judge Rovner put it in Grote, ―the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere. In short, the only religious freedoms at issue in this appeal are those of the Grotes, not the companies they own.‖ Grote, 13-1077, 2013 WL 362725 at *5. Similarly, the purpose—and only purpose—of the plaintiff Conestoga is to make money! Despite Judge Jordan's objection to this statement (see Diss. Op. at n. 8), the record clearly reveals that Conestoga Wood Specialties Corporation is no more than a for-profit corporation designed for commercial success and is without membership in any church, synagogue, or mosque and without religious convictions.
I will not reiterate at length the defects in the claims brought by the individual plaintiffs as distinct from the corporate entity Contestoga, which as discussed above cannot claim its own ―ocrporate‖ right to free exercise of religion. The flaw in this aspect of Conestoga‘s argument is more than sufficiently articulated in Judge Rovner‘s opinion in Grote, which is as completely applicable to Conestoga as it is to Grote: ―it is the corporation, rather than its owners, which is obligated to provide the contraceptive coverage to which the owners are objecting. [Conestoga Wood Specialties Corporation] is a closely-held, family-owned firm, and I suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own. . . . [Nevertheless the Hahns] are, in both law and fact, separated by multiple steps from both the coverage that the company health plan provides and from the decisions that individual employees make in consultation with their physicians as to what covered services they will use.‖ Grote v. Sebelius, 13-1077, 2013 WL 362725 at *6-7 (7th Cir. Jan. 30, 2013) (citation omitted).
Suffice it to say that there is no argument advanced by Conestoga, or by Judge Jordan in dissent here, that convinces me that Conestoga‘s motion for an injunction should be granted. I am confident that Conestoga‘s appeal will not succeed, and I—as does Judge Rendell—therefore deny their expedited motion for an injunction pending appeal.
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Conestoga Wood v. Sect‘y Dept. HHS No. 13-1144

January 29, 2013 CCO-046-E

JORDAN, Circuit Judge, dissenting.

Conestoga Wood Specialties Corporation (―Cnoestoga‖), and five of its owners, Norman Hahn, Elizabeth Hahn, Norman Lemar Hahn, Anthony H. Hahn, and Kevin Hahn, appeal the denial of their motion for a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (the ―ACA‖) and related regulations that require Conestoga to purchase an employee health insurance plan that includes coverage for contraception, including abortifacients and sterilization services. See 42 U.S.C. § 300gg-13(a)(4); 77 Fed. Reg. 8725 (Feb. 15, 2012). They have moved for an injunction pending appeal.1 See Fed. R. App. P. 8(a). Because I believe an injunction is warranted, I respectfully dissent from the order denying the motion.

Conestoga is a privately held, for-profit Pennsylvania corporation that manufactures wood cabinets and wood specialty products and employs approximately 950 full-time employees. (Am. Compl. ¶¶ 11-16, 37.) It is owned entirely by members of the Hahn family, who, the District Court acknowledges, ―are prcaticing Mennonite Christians whose faith requires them to operate Conestoga in accordance with their religious beliefs and moral principles.‖ Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, at *3 (E.D. Pa. Jan. 11, 2013).

In the midst of the public debate about the propriety of the Obama Administration‘s decision to create regulations requiring (with possible exceptions not applicable here) all for-profit businesses to provide health insurance to their employees to pay for abortifacients and sterilization services, Conestoga‘s Board of Directors adopted, on October 31, 2012, a ―Statme ent on the Sanctity of Human Life,‖ which, among other things, proclaims that

[t]he Hahn Family believes that human life begins at conception (at the point where an egg and sperm unite) and that it is a sacred gift from God and only God has the right to terminate human life. Therefore it is against our moral conviction to be involved in the termination of human life

1 The procedural history is essentially as follows. On December 4, 2012, Appellants filed suit and requested a preliminary injunction prohibiting the government from applying the contraception mandate to Conestoga. On January 11, 2013, the District Court denied Appellants‘ request for a preliminary injunction. On January 14, 2013, Appellants filed their notice of appeal, see 28 U.S.C. § 1292(a)(1), and on January 22, 2013, they filed the present expedited motion for an injunction pending appeal.
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through abortion, suicide, euthanasia, murder, or any other acts that involve the deliberate taking of human life.
Id. at *3 n.5.
Accordingly, the Hahns believe that facilitating contraception, including particularly abortifacients, by providing insurance coverage will violate their religious beliefs. (Am. Compl. ¶¶ 30, 32.) Conestoga, at the Hahns‘ direction, previously provided health insurance that omitted coverage for contraception (Am. Compl. ¶ 3), but, as of January 1, 2013,2 the company is required under the ACA either to provide health insurance plans that cover contraception or to face enforcement actions and substantial financial penalties.3 See 29 U.S.C. § 1132(a); 26 U.S.C. § 4980D(a), (b) ($100 per day per employee for noncompliance with coverage provisions); 26 U.S.C. § 4980H (approximately $2,000 per employee annual tax assessment for noncompliance). The Hahns estimate that, if they do not comply with the mandate to provide coverage for contraception, Conestoga could be subject to daily fines of approximately $95,000.4 (Expedited Mot. for Inj. Pending Appeal at 5.) They have therefore brought the present action against the Secretary of the U.S. Department of Health and Human Services, Kathleen Sebelius, seeking declaratory and injunctive relief against the enforcement of the contraception mandate. They allege that the mandate violates their rights under the Religious Freedom Restoration Act (―RFRA‖), 42 U.S.C. § 2000bb-1; the First Amendment‘s Free Exercise, Establishment, and Speech Clauses; the Fifth Amendment‘s Due Process Clause; and the Administrative Procedure Act, 5 U.S.C. §§ 553(b)-(c), 706(2)(A), (D).
Before turning to the government‘s arguments for why enforcement of its mandate cannot wait for a fair opportunity to review the merits of the constitutional and statutory claims asserted by the Hahns and Conestoga, it is perhaps well to note what is not contested in this case. The government does not dispute the sincerity of the Hahns‘ religious beliefs or the District Court‘s finding that the Hahns‘ faith requires them to operate their business in accordance with those beliefs. The government does not contend that the regulations at issue are anything less than anathema to the Hahns because of those deeply held religious beliefs. Nor does it take issue with the Hahns‘
2 On December 28, 2012, the District Court granted a temporary stay, but on January 11, 2013, the Court denied Appellants‘ motion for a preliminary injunction.
3 Conestoga‘s health insurance renewal date was January 1, 2013. It is unclear from the record whether Conestoga is now risking enforcement or paying for the offending coverage.
4 The government offers no disagreement with the Hahns‘ assessment of the sanctions they face for noncompliance.
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assertion that, unless they submit to the offending regulations, Conestoga will be fined on a scale that will rapidly destroy the business and the 950 jobs that go with it. Finally, the government does not argue that the choice being pressed upon Conestoga and the Hahns – namely, to pay for what those parties view as life-destroying drugs and procedures or to watch their business be destroyed by government fines – is somehow merely theoretical. It is uncontested that Conestoga‘s health insurance renewal date has arrived and that the Hahns and their company are thus faced with the immediate and highly consequential choice which is at the center of this lawsuit.
What the government does assert, and what the District Court decided, is that the Hahns and the business they own and operate lack a reasonable likelihood of succeeding in their challenge to the government‘s threatened actions against them because Conestoga is a for-profit corporation. In the District Court‘s words, ―It wolud be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.‖ Conestoga Wood Specialties Corp., 2013 WL 140110, at *8. Despite the evident care invested by the District Court in its decision, that conclusion is highly questionable.
To qualify for preliminary injunctive relief, a litigant must demonstrate ―(1) a likelihood of success on the merits; (2) that [they] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.‖ Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). ―Teh injunction shall issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.‖ N.J. Hosp. Ass’n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995). Importantly, however, although the four factors provide structure for the inquiry, ―ina situation where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required.‖ Constructors Ass’n of W. Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978).5
5 While we have not ruled on the matter definitively, the standard for obtaining an injunction pending appeal is essentially the same as that for obtaining a preliminary injunction. See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012) (evaluating ―a motion for an injunction pending appeal using the same factors and … approach that govern an application for a preliminary injunction‖); Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (―Inurling on … a request [for a stay or an injunction pending appeal], this court makes the same inquiry as it would when reviewing a district court‘s grant or denial of a preliminary injunction.‖); LaRouche v. Kezer, 20 F.3d 68, 73 (2d Cir. 1994) (―The standard for preliminary injunctions, similar to the standard for injunctions pending appeal, dictates a weighing of the
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likelihood of success on the merits, irreparable injury, the balance of equities and the public interest.‖).
The District Court disregarded the several precedents from other courts granting injunctions to companies and their owners like Conestoga and the Hahns because, it said, those courts ―applide a less rigorous standard‖ for the granting of preliminary injunctive relief. Conestoga Wood Specialties Corp., 2013 WL 140110, at *4. In particular, the Court said that those other courts ―paplied a ‗sliding scale approach,‘ whereby an unusually strong showing of one factor lessens a plaintiff‘s burden in demonstrating a different factor.‖ Id. Then, citing Pitt News v. Fisher, 215 F.3d 354, 365-66 (3d Cir. 2000), it contrasted that approach with what it characterized as our Court‘s approach, saying, ―theThird Circuit ... has no ‗sliding scale‘ standard, and plaintiffs must show that all four factors favor preliminary relief.‖ Id.
The District Court was mistaken on two fronts in that analysis. First, it ignored the import of cases like Kreps, in which we have indicated that ―baalncing‖ means just that, so that one can succeed in gaining injunctive relief if the threatened harm is particularly great, despite a showing on ―ilkelihood of success‖ that is less than would usually be required. 573 F.2d at 815. Even if Pitt News stood for the proposition for which the District Court cites it, that case could not be controlling because it is a panel opinion and cannot overrule those earlier precedents. See United States v. Rivera, 365 F.3d 213, 213 (3d Cir. 2004) (―ThsiCircuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents.‖). But, and this is the second mistake, Pitt News does not say, as the District Court implied, that a balancing among factors is not permitted. It said, rather, that ―allofur factors [must] favor preliminary relief.‖ 215 F.3d at 366. To say that one must make a positive showing on all four preliminary injunction factors is not to say that there cannot be a balancing among them that would allow greater or lesser strength, depending on the facts.
The majority disparages my reliance on Kreps, asserting that I have ―overstate[d] the significance‖ of that case and am ―appyling a less stringent standard.‖ (Maj. Op. at 4.) But, with all due respect, that criticism is not sound. Kreps has not been overturned and is, accordingly, the law of this Circuit. It speaks in terms of balancing, and plainly states that a stronger showing on one factor may allow for a less forceful showing on another. If there were any ambiguity about that, it was removed by our later holding in Marxe v. Jackson, 833 F.2d 1121, 1128 (3d Cir. 1987), in which we said that ―a[] decision on an application for a preliminary injunction requires a delicate exercise of equitable discretion,‖ and that ―thestrength of [a] plaintiff‘s showing with respect to one [preliminary injunction factor] may affect what will suffice with respect to another.‖ My colleagues in the majority acknowledge that the central holding of Kreps is that ―the law requires us to balance the [preliminary injunction] factors against each other‖ (Maj. Op. at 4), but they simply decline to do so, focusing their attention solely on the first factor. I am left to wonder what ―balancing‖ means, if we are not to take into consideration the other factors, including the significance of the rights at stake, which the majority
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The harm threatened here is great. ―It is wlel-established that ‗the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.‘‖ Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). If government action presents such a threat, it is no answer to cite, as the government does, a litany of laudatory things that the government may also be doing at the same time. The government is at pains to point out, for example, that the ―perventive health services provisions [of the ACA] require coverage of an array of recommended services including immunizations, blood pressure screening, mamograms, cervical cancer screening, and cholesterol screening.‖ (Gov‘t Opp. at 5.) The question posed by the Hahns and Conestoga, however, is not whether mamograms or screening for high cholesterol or cervical cancer are valuable health services. The question is not even whether the abortifacient drugs and sterilization procedures that they view as life-destroying and therefore impossible to support can rightly be viewed by other people as praiseworthy. The Hahns and Conestoga pose a very different and precise question: they turn to their government and ask, can you rightly make us pay for something poisonous to our religious beliefs or face the destruction of our business. It evidently matters not one whit to them how healthful the banquet they are told to buy may otherwise be, if the menu contains a toxic item too. ―There‘sjust one fatal dish,‖ is non-responsive to their point, which is that their religious liberty is directly threatened by the government‘s edict. We are thus dealing with the prospect of grievous harm, and the threshold for showing a likelihood of success on the merits may be correspondingly relaxed.6
concedes in this case are ―mi portant‖ (Maj. Op. at 6) and I would say are of absolutely fundamental importance. The threatened deprivation here is profound.
6 I note the relaxed measure for likelihood of success only to emphasize that, in light of the threatened harm, this case seems clearly to meet the requirements for an injunction pending appeal. Even were the harm less severe and the threshold showing for likelihood of success accordingly higher, though, I would still think that the Hahns and Conestoga had made the necessary showing. To meet that threshold, a ―planitiff need only prove a prima facie case, not a certainty that he or she will win.‖ Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 173 (3d Cir. 2001); see also Punnett v. Carter, 621 F.2d 578, 583 (3d Cir. 1980) (―It is nont ecessary that the moving party‘s right to a final decision after trial be wholly without doubt; rather the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.‖ (internal quotation marks omitted)). ―L[]ikelihood of success on the merits‖ means that a plaintiff has ―a reasonbale chance, or probability, of winning.‖ Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc). It ―does not mean more likely than not.‖ Id. In the sense pertinent here, the term ―likeliohod‖ embodies ―t[]he quality of offering a prospect of success‖ or ―promise.‖ Oxford English Dictionary, Vol. I, at 1625 (compact ed., 1986) (emphasis added). The Plaintiffs in this case have that kind of chance, as the numerous courts that have granted injunctions
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In addition to showing irreparable harm, the Hahns and Conestoga have adequately demonstrated that they meet the other requirements for an injunction pending appeal, including having a sufficient likelihood of success on the merits. Several courts, as noted by the District Court itself, have already looked at facts like the ones before us and held that at least some temporary injunctive relief is in order. See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *2 (7th Cir. Dec. 28, 2012) (granting motion for injunction pending appeal because appellants ―have setablished both a reasonable likelihood of success on the merits and irreparable harm, and [because] the balance of harms tips in their favor‖); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 123357, slip op. at 1 (8th Cir. Nov. 28, 2012) (granting ―a[]ppellants‘ motion for stay pending appeal,‖ without further comment); Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 12-92, 2012 WL 6738489, at *7 (E.D. Mo. Dec. 31, 2012) (holding that ―plaitniffs are entitled to injunctive relief that maintains the status quo until the important relevant issues have been more fully heard‖); Monaghan v. Sebelius, No. 12-15488, 2012 WL 6738476, at *6 (E.D. Mich. Dec. 30, 2012) (granting preliminary injunction because ―t[]he Government has failed to satisfy its burden of showing that its actions were narrowly tailored to serve a compelling interest,‖ and plaintiffs therefore ―setablished at least some likelihood of succeeding on the merits of their RFRA claim‖); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-3459, slip op. at 8 (W.D. Mo. Dec. 20, 2012) (granting preliminary injunction because ―the balance of equities tip strongly in favor of injunctive relief in this case and [because] 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‖); Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323, at *18 (D.D.C. Nov. 16, 2012) (granting preliminary injunction to publishing corporation and its president because they had ―shown astrong likelihood of success on the merits of their RFRA claim,‖ and because
involving the ACA contraception mandate have necessarily found. See cases cited infra, in the text following this footnote.
Having said that, it bears repetition that the hardship the Plaintiffs allege is severe. The government has put the Hahns and Conestoga in a terrible position by insisting that, under threat of ruinous fines, they capitulate now, before their rights have been fully adjudicated through appeal. The equities favor granting a preliminary injunction when the owners of a company stand to lose their business unless the status quo is maintained. Roso-Lino Beverage Distribs., Inc. v. Coca-Cola Bottling, Co., 749 F.2d 124, 126 (2d Cir. 1984). And injunctive relief has been found appropriate in circumstances much less onerous than the ones here. See Gen. Protecht Grp., Inc. v. Leviton Mfg. Co., 651 F.3d 1355, 1363-65 (Fed. Cir. 2011) (concluding that there was irreparable harm and that the equities favored granting an injunction when a company was required to litigate in two forums in violation of a contractual forum selection clause). Given the balance of hardships here – with, on one hand, the government being asked merely to wait until the case can be fully adjudicated, and, on the other, the Plaintiffs being told to forego their rights of religious conscience – and given the issues at stake, an injunction is warranted.
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the other preliminary injunction factors favored granting the motion); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *14 (E.D. Mich. Oct. 31, 2012) (granting preliminary injunction to for-profit, family-owned and operated corporation and holding that ―t[]he 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‖); Newland v. Sebelius, No. 12-1123, 2012 WL 3069154, at *8 (D. Colo. July 27, 2012) (granting preliminary injunction, holding that ―t[]he balance of the equities tip strongly in favor of injunctive relief in this case‖). But see Autocam Corp. v. Sebelius, No. 12-2673, slip op. at 3 (6th Cir. Dec. 28, 2012) (denying motion for injunction pending appeal); Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, at *3 (10th Cir. Dec. 20, 2012) (denying motion for injunction pending appeal, stating, ―We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship‖).
The two Courts of Appeals to view the issue the other way are the Sixth and Tenth Circuits. The Sixth Circuit issued an order acknowledging ―conlficting decisions,‖ but denying injunctive relief because the district court in that case issued a ―reasoned opinion‖ and because ―the Supreme Court [had] recent[ly] deni[ed] … an injunction pending appeal in Hobby Lobby.‖ Autocam Corp. v. Sebelius, No. 12-2673, slip op. at 2 (6th Cir. Dec. 28, 2012). The Supreme Court opinion the Autocam court referred to was an in-chambers decision by Justice Sotomayor, acting alone, denying the plaintiffs‘ motion for an injunction pending appellate review. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (Sotomayor, Circuit Justice Dec. 26, 2012). She denied the motion under the particular standard for issuance of an extraordinary writ by the Supreme Court, id. at 643, which differs significantly from our standard for evaluating a motion for a preliminary injunction. Under that more demanding standard, the entitlement to relief must be ―‗nidisputably clear.‘‖ Id. (quoting Lux v. Rodrigues, 131 S. Ct. 5, 6 (2010) (Roberts, C.J., in chambers)). The Autocom court‘s reliance on her opinion is therefore misplaced, and its decision is otherwise devoid of explanation. Its conclusion may also be viewed as disregarding the point of RFRA, which is to put the onus on the government when the government seeks to restrict fundamental rights.7
7 Congress enacted RFRA to overturn the Supreme Court‘s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Court rejected a challenge to an Oregon statute that denied unemployment benefits to drug users, including Native Americans engaged in the sacramental use of peyote, holding that ―teh Free Exercise Clause of the First Amendment does not prohibit governments from burdening religious practices through generally applicable laws.‖ Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (citing Smith, 494 U.S. at 890). In so doing, the Court rejected the interpretation of the Free Exercise Clause announced in Sherbert v. Verner, 374 U.S. 398 (1963), and returned to the doctrine of earlier cases that held that ―hte Constitution does not require judges to
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The Tenth Circuit provided more explanation. It found the position of the plaintiffs in that case wanting because ―‗thpearticular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s‘] religion.‘‖ Hobby Lobby Stores, Inc., 2012 WL 6930302, at *3 (alteration in original) (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012)). As the Seventh Circuit rightly pointed out, though, that description ―misunderstands the substance of the claim. The religious-liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not – or perhaps more precisely, not only – in the later purchase or use of contraception or related services.‖ Korte, 2012 WL 6757353, at *3.
The government brushes that aside by saying that the ―dihcotomy between religious and secular employers‖ (Gov‘t Opp. at 11) is case dispositive. Because Conestoga is a business, the government‘s argument, to which the District Court subscribed, is that there is nothing that can be done to Conestoga, or through it to its owners, that implicates religious liberty. That conclusion seems to rest on two premises which are at the very least open to such serious question that it is unjust to deny an injunction while the matter is more fully considered.
One is that the corporate form itself, whether the enterprise involved is for-profit or not, places an enterprise outside the realm of First Amendment rights. See Conestoga Wood Specialties Corp., 2013 WL 140110, at *8 (reasoning that a business owner cannot enjoy the protection of the corporate veil while also asking that the owner‘s religious interests be considered for First Amendment purposes). An entity‘s incorporated status does not, however, alter the underlying reality that corporations can and often do reflect the particular viewpoints held by their flesh and blood owners – a fact that has been recognized in the great many cases holding that corporations can indeed assert First Amendment rights. Religious bodies frequently operate through corporations. See, e.g.,
engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws.‖ Gonzales, 546 U.S. at 424 (citing Smith, 494 U.S. at 883-90).
―Congressresponded by enacting [RFRA], ... which adopts a statutory rule comparable to the constitutional rule rejected in Smith.‖ Id. RFRA provides that the government may not substantially burden a person‘s exercise of religion, ―even ifthe burden results from a rule of general applicability,‖ 42 U.S.C. § 2000bb-1(a), unless it can demonstrate that the government regulation ―(1) is inufrtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ Id. § 2000bb-1(b). RFRA thus ―restores[] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), and ―provide[s] a claim or defense to persons whose religious exercise is substantially burdened by government.‖ Id. § 2000bb(b).
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Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 423, 439 (2006) (affirming the grant of a preliminary injunction to a religious sect, which was also a corporation, enjoining the enforcement of federal drug laws against the sect for its importation of a drug used in religious rituals); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525-26 (1993) (recognizing that the petitioner was a corporation whose congregants practiced the Santeria religion and concluding that city ordinances violated the corporation‘s, and its members‘, free exercise of their religion); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 330 (1987) (recognizing the petitioner as a corporation in a case concerning First Amendment free exercise rights). And corporations have been held to have free speech rights, see generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), including the right to frame their own message where abortion is concerned. See Greater Balt. Ctr for Pregnancy Concerns, Inc. v. Mayor of Balt., 683 F.3d 539, 554 (4th Cir. 2012) (holding that the plaintiff ―prengancy centers are not engaged in commercial speech and that their speech cannot be denied the full protection of strict scrutiny‖). Ironically (given the character of the constitutional and statutory claims being made here), many an abortion rights case has been brought by corporations like Planned Parenthood and has resulted in the granting of preliminary injunctive relief. See Planned Parenthood of Ind., Inc. v. Comm’r of Ind. Dept. of Health, 699 F.3d 962, 968 (7th Cir. 2012) (affirming grant of preliminary injunction to prevent enforcement of a state statute prohibiting a medical provider (a corporation) that also performed abortions from receiving any state-administered funding, because the state law required the provider to choose between providing abortion services and receiving public money for other services besides abortions); Planned Parenthood of S.E. Pa. v. Casey, 686 F. Supp. 1089, 1137-38 (E.D. Pa. 1988) (granting preliminary injunction to several corporations, both for-profit and not-for-profit, and an individual to enjoin state law requiring, inter alia, unduly burdensome record keeping and reporting requirements that were determined to be likely to result in an unconstitutional impediment to a woman‘s right to have an abortion). There is thus ample precedent indicating that the corporate form itself does not prevent a corporation from asserting constitutional rights, including First Amendment rights.
The other questionable premise pressed by the government and adopted by the District Court is that the distinction between for-profit and not-for-profit corporations justifies holding the Hahns‘ and Conestoga‘s claims to be untenable. Asserting that RFRA was ―enactde … against the backdrop of the federal statutes that grant religious employers alone the prerogative to rely on religion in setting the terms and conditions of employment‖ (Gov‘t Opp. at 11), the government says Conestoga, as a for-profit enterprise, ―must provide the employee benefits that federal law requires.‖ (Id.) Leaving aside that the government‘s demand that employers provide insurance coverage for abortifacients and other contraceptives is unprecedented and hence cannot have formed the backdrop for RFRA or anything else, the distinction that the government points to has been rejected by other courts, see, e.g., Stormans Inc. v. Selecky, 586 F.3d 1109, 1120
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(9th Cir. 2009) (―We have held that a corporation has standing to assert the free exercise right of its owners.‖); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323, at *7 (D.D.C. Nov. 16, 2012) (―T[]he beliefs of Tyndale and its owners are indistinguishable.‖); Legatus v. Sebelius, 2012 WL 5359630, at *5 (E.D. Mich. Oct. 31, 2012) (―Frothe purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as ‗his company.‘‖), and in other First Amendment contexts, cf. Citizens United, 558 U.S. at __, 130 S.Ct. at 907 (―By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.‖); Transp. Alts., Inc. v. City of New York, 218 F. Supp. 2d 423, 444 (S.D.N.Y. 2002) (―[D]rawing distinctions between organizations based on for-profit or non-profit sponsorship in determining how much to charge to hold an event [in a public park] runs afoul of the First Amendment.‖). It is therefore only reasonable to hold in place the status quo in this case while the parties‘ arguments can be fully considered, rather than to make a hasty decision that risks denying fundamental rights.8
In short, while the District Court‘s opinion and the government‘s response to the motion for injunctive relief provide some answers to the important questions raised by the Hahns‘ and Conestoga‘s motion for preliminary injunctive relief, they are not nearly persuasive enough, in my judgment, to warrant cutting off all debate before those questions can be given a full airing and a decision on the merits. The simple fact is that, if the Hahns and Conestoga are forced to kneel before the government‘s regulation now, they have already lost. The government‘s view of what is and is not a valid exercise of religion will have prevailed before appellate rights have been vindicated. I am convinced that the threatened harm we are dealing with here is particularly grievous, that the appropriate threshold for showing a likelihood of success on the merits has been met, along with the remaining requirements for relief, and that preserving the status quo with an injunction is the appropriate course. I therefore respectfully dissent from the order denying the expedited motion for an injunction pending appeal.
8 Judge Garth asserts that ―the puropse – and only purpose – of the plaintiff Conestoga is to make money!‖ (Concurrence at 4.) That assumes the answer to the question the Hahns have posed. As a factual matter, it is unrebutted that Conestoga does not exist solely to make money. This is a closely held corporation which is operated to accomplish the specific vision of its deeply religious owners, and, while making money is part of that, it has been effectively conceded that they have a great deal more than profit on their minds. To say that religiously inclined people will have to forego their rights of conscience and focus solely on profit, if they choose to adopt a corporate form to conduct their business, is a controversial position and certainly not one already established in law.
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 Case 1:12-cv-01096-RJJ Doc #53 Filed 03/18/13 Page 1 of 26 Page ID#843

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

AUTOCAM CORPORATION, et al., Plaintiffs,

Case No. Hon.

12-cv-01096 ROBERT J. JONKER

v. KATHLEEN SEBELIUS, et al.,
Defendants

*** ORAL ARGUMENT REQUESTED *** BRIEF OPPOSING MOTION TO DISMISS

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TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 FACTS .............................................................................................................................................2 LEGAL STANDARD......................................................................................................................4 ARGUMENT ...................................................................................................................................4 I. Plaintiffs state a claim under the Religious Freedom Restoration Act. ...............................4
A. The HHS Mandate burdens the Plaintiffs’ exercise of religion...............................5 B. Autocam’s owners and operators are protected under the RFRA............................7 C. Autocam itself is protected under the RFRA...........................................................9 D. The exception-riddled HHS Mandate is not justified by a
compelling interest.................................................................................................14 E. The HHS Mandate is not the least restrictive means. ............................................17 F. The prospect of additional litigation should not sway the Court. ..........................19 II. The Verified Complaint states claims under the First Amendment...................................20 A. The HHS Mandate violates the Free Exercise Clause. ..........................................20 B. The HHS Mandate violates the Establishment Clause. .........................................21 C. The HHS Mandate violates the Free Speech Clause. ............................................22 CONCLUSION..............................................................................................................................23

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INTRODUCTION The Plaintiffs challenge an unlawful and unconstitutional administrative regulation, 6 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. (the “HHS Mandate”), that violates the religious freedom of Autocam Corporation and Autocam Medical, LLC (collectively “Autocam”) and Autocam’s owners and operators, John Kennedy III, Paul Kennedy, John Kennedy IV, Margaret Kennedy, and Thomas Kennedy (collectively with Autocam “Plaintiffs”). The Defendants in this action (the “Government”) implemented the HHS Mandate pursuant to 124 Stat. 119 and 124 Stat. 1029 (collectively the “Affordable Care Act”). The Affordable Care Act as passed by Congress requires coverage for preventative services, but it is the defendant agencies that decided to create the HHS Mandate. The Plaintiffs challenge the HHS Mandate under the Religious Freedom Restoration Act (“RFRA”) and the First Amendment. The RFRA requires a government regulation placing a substantial burden on the exercise of religion to meet strict scrutiny. The Plaintiffs believe that by covering contraception and abortion-causing drugs and related services they are committing a mortal sin, which subjects them to the prospect of eternal damnation. The Plaintiffs further believe in exercising their religion when interacting in the world at large, which includes conducting business. Thus, their religion requires them to operate their business along these lines and not to cover the objectionable drugs and services. The HHS Mandate places substantial pressure on the Plaintiffs to violate their religious beliefs by imposing an almost $20 million fine for failure to comply. The HHS Mandate cannot survive the strict scrutiny applied by the RFRA because it is riddled with exceptions. Most employers are not subject to the HHS Mandate, undermining any claim to the rule’s importance. Moreover, the Plaintiffs’ employees receive generous benefits and have sufficient funds to pay for the objectionable drugs and services on their own without direct coverage by the Plaintiffs.
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Furthermore, the Government cannot show that the HHS Mandate is the least restrictive means
because it faces no injury from providing the Plaintiffs with a religious accommodation and the
Plaintiffs’ alternative suggestions can be just as effective at advancing the purported interest.
For these and other reasons, the HHS Mandate also violates the various protections in the First
Amendment.
The Court previously denied the Plaintiffs a preliminary injunction, a decision which is
now on appeal. For-profit plaintiffs have sought preliminary relief from the HHS Mandate in 16
other cases. In 12 of those, courts awarded preliminary relief against enforcement of the HHS Mandate.1 In applying a preliminary injunction standard, which is more difficult than what the
Plaintiffs must meet to survive a motion to dismiss, the majority of federal judges considering
the issue protected the Plaintiffs’ religious freedom. In light of these preliminary rulings and the
authority presented below, the Plaintiffs allege sufficient facts to state a claim.
FACTS The Plaintiffs in this case are Autocam and the Kennedy family, which own and operate
the business entities. The Kennedy family owns the controlling interest in Autocam, and
Plaintiff John Kennedy is the President and Chief Executive Officer. (Verif. Comp. at ¶¶ 17-18.)
1 See Annex Med., Inc. v. Sebelius, No. 13-1118 (8th Cir. Feb. 1, 2013) (granting injunction pending appeal); Grote v. Sebelius, No. 13-1077, 2013 WL 362725 (7th Cir. Jan. 30, 2013) (same); Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) (same); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357 (8th Cir. Nov. 28, 2012); Triune Health Group, Inc. v. U.S. Dep’t of Health & Human Servs., No. 12-cv-6756 (N.D. Ill. Jan. 3, 2013) (granting preliminary injunction); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012) (same); Tyndale House Publishers, Inc. v. Sebelius, No. 12-cv-1635, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) (same); Legatus v. Sebelius, No. 12-cv-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (same); Newland v. Sebelius, No. 1:12-cv-1123, 2012 WL 3069154 (D. Colo. July 27, 2012) (same); Sioux Chief Mfg. Co., Inc. v. Sebelius, 13-0036-CV (W.D. Mo. Feb. 28, 2013 (same): Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., No. 2:12-cv-92 (E.D. Mo. Dec. 31, 2012) (granting temporary restraining order); Monaghan v. Sebelius, No. 12-cv-15488, 2012 WL 6738476 (E.D. Mich. Dec. 30, 2012) (same); but see Hobby Lobby v. Sebelius, No. 12-6294 (10th Cir. Dec. 20, 2012); Conestoga Wood Specialties Corp. v. Sebelius, No. 12-cv-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013) (denying relief).
2

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He is responsible for setting all policies governing the conduct of Autocam, including its decisions regarding insurance. (Id.) The Plaintiffs are Roman Catholics that follow the teaching of the Catholic Church. (Id. at ¶ 31.) The Plaintiffs “are called to live out the teachings of Christ in their daily activity.” (Id. at ¶ 32.) Autocam is “the business form through which the individual Plaintiffs endeavor to live their vocation as Christians in the world.” (Id. at ¶ 337.)
In accordance with the Plaintiffs’ religious beliefs, Autocam provides generous healthcare benefits and wages to its employees. (Id. at ¶¶ 38-40.) Specifically, Autocam covers 100% of its employees preventative care, including gynecological exams, pre-natal, and postnatal care. (Id. at 36.) Autocam also provides its employees up to $1,500 towards a health savings account that can be used to pay for any lawful service. (Id.) The Plaintiffs have lived out their faith by providing employee health insurance through a self-insured plan that does not cover drugs or services such as contraception, abortion-causing contraception, and sterilization, which would violate the teaching of the Catholic Church. (Id. at ¶¶ 38-39.)
The Plaintiffs’ religious beliefs prohibit covering, funding, or assisting others in obtaining contraception, abortion-causing drugs, and sterilization. (Id. at ¶ 81.) The Plaintiffs believe that cooperating with the provision of such drugs and services is a mortal sin. (Id. at ¶ 82.) The HHS Mandate requires the Plaintiffs to change their plan and cover drugs and services that violate their religion or face a multi-million dollar fine. But to accept the HHS Mandate would violate the Plaintiffs religious beliefs: “Plaintiffs sincerely believe that if they comply with the mandate they will be guilty of material cooperation of evil, which constitutes a mortal sin that subjects them to eternal damnation. Put another way, the Plaintiffs sincerely believe that compliance with the Mandate will deprive them of their ability to share eternal salvation.” (Id. at ¶ 83.) This is a substantial burden on their religion.
3

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LEGAL STANDARD “All well-pled facts in the complaint must be accepted as true.” Savoie v. Martin, 673 F. 3d 488, 492 (6th Cir. 2012). “To survive a motion to dismiss, a plaintiff must allege enough facts to state a claim to relief that is plausible on its face.” Id. (quotation omitted). “A claim is facially plausible if the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Pfeil v. State Street Bank and Trust Co., 671 F. 3d 585, 590 (6th Cir. 2012) (quotation omitted). The factual allegations in this case, when taken as true, state a claim for relief.
ARGUMENT I. Plaintiffs state a claim under the Religious Freedom Restoration Act.
The RFRA prohibits the Government from burdening religious exercise “even if the burden results from a rule of general applicability,” except when the Government can “demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest.” 42 U.S.C. § 2000bb-1. The RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). This includes not merely worship but actions in accordance with one’s faith. Id. Accordingly, the Plaintiffs’ operation of their health insurance plans according to their religious beliefs is the “exercise of religion” under the RFRA as a matter of law.
As explained in arguments detailed below and already known to the Court, the HHS Mandate cannot survive the RFRA’s strict scrutiny. The key issue for the Court is the threshold question of whether the Plaintiffs face a substantial burden. In its Order denying a preliminary injunction, the Court found that the Plaintiffs were not likely to show a substantial burden. (R. 42 at 10.) Here, though, the question is whether the Plaintiffs factual allegations, taken as true,
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show a substantial burden. And they do. A. The HHS Mandate burdens the Plaintiffs’ exercise of religion. The Plaintiffs exercise their religion by providing health insurance consistent with their
religious beliefs. The Plaintiffs’ religious practice requires them to live out the teachings of Christ in their daily activity and run their business in a manner that does not violate the principles of their faith. (Verif. Compl. at ¶¶ 32, 45.) The Plaintiffs live out their faith partly in the way they treat their employees. On the one hand, they provide generous salaries and benefits, including employee health insurance through a plan. (Id. at ¶ 36) On the other hand, the benefits package excludes coverage for contraception, abortion-causing contraception, and sterilization because Plaintiffs’ religious practice forbids covering, funding, or assisting others in obtaining these drugs and procedures. (Id. at ¶¶ 38-40, 81.) Cooperating with the provision of such services is a mortal sin, which imposes a tremendous burden on Plaintiffs’ souls. (Id. at ¶ 82.) Indeed, Autocam is self-insured and must pay for the mandated drugs directly. (Id. at ¶ 40.) Requiring Plaintiffs to provide such drugs and services—or simply requiring them to provide coverage for such drugs and services—either directly or through a company under their ownership and control, severely burdens their religious practice.
If the Plaintiffs continue their religious exercise, they will face substantial per employee fines for their religious exercise under 26 U.S.C. § 4980D—approximately nineteen million dollars ($19,000,000), per year. A fine is a quintessential burden. See Sherbert v. Verner, 374 U.S. 398, 403-04 (1963). And placing “substantial pressure on an adherent to modify his behavior and to violate his beliefs” is a substantial burden. Thomas v. Review Bd. Of Ind. Empt’
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Sec Div., 450 U.S. 707, 719 (1981).2 The Government’s position is clear: Autocam either covers the drugs that the company, and its owners and operators, object to on religious grounds, or it is subject to a severe penalty. This is a substantial burden that triggers the RFRA. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 208, 218 (1972) (finding $5 fine substantially burdened religious exercise).3
The Government suggests otherwise by belittling the burden the HHS Mandate placed on the Plaintiffs’ free exercise of religion as required by the RFRA. Their objection is based upon the religious consequences of the compliance, as enforced by a multi-million dollar fine, which is drastic because they directly impact the Plaintiffs’ ability to stand before their God as upright and worthy servants of their Lord. If this were just about money, the Plaintiffs would not be before the Court.
The Government is wrong to suggest that the burden is too attenuated because it involves independent decisions by beneficiaries to use the coverage. By the same rational, a mandate requiring Catholic hospitals to provide surgical abortions would not substantially burden the religious practice of the hospital because of the independent decisions of individuals seeking abortions, which would be absurd. It is also incorrect to assume that difference between the Plaintiffs being forced to pay for objectionable drugs and services directly, rather than employees being able to purchase such things with their own funds is insubstantial.
The Court may not weigh by measure the substance of the Plaintiffs’ religious objections
2 The Government suggests that the Kennedy family’s theory is what’s done to the company is also done to its owners. (Br. at 12.) But that is certainly the case when the company is penalized in a way to coerce the owners to change their practice. 3 The Government’s effort to deny that the HHS Mandate burdens the religious beliefs and practices of employers is defied by its own actions. It was precisely because the Government recognized this burden when it granted a wholesale exemption from the HHS Mandate to a class of nonprofit employers, 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012), and it is for this reason that the Government is also considering ways to accommodate the religious objections of even more nonprofit
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or disregard their beliefs on the grounds that the objection was insubstantial in its own view or the Governments view. Courts cannot be “arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716; see also Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 113 (1952) (“whenever the questions . . . have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them”) (quotations removed). The legal question here turns on whether the penalty the free exercise of religion is a substantial burden. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006); see also Thomas, 450 U.S. at 718; Sherbert, 374 U.S. at 403-404. The legal question does not turn on whether the court believes a religious objection is substantial.
The Plaintiffs have detailed their religious objections, and these are entitled to protection under the RFRA, even if the Court finds the line drawn by the Plaintiffs’ religious tradition insubstantial. Both the RFRA and the First Amendment prevent the state from determining the “substance” and the “substantiality” of the Plaintiffs’ religious beliefs. The facts as alleged in the Verified Complaint state that a substantial burden applies, and the RFRA protects the Plaintiffs from suffering that burden.
B. Autocam’s owners and operators are protected under the RFRA. The Kennedy family owns the controlling interest in Autocam. (Verif. Comp. at ¶¶ 1823.) Plaintiff John Kennedy is also the President and Chief Executive Officer of Autocam. (Id. at ¶ 17, Page ID # 5.) He is responsible for setting all policies governing the conduct of Autocam, including its decisions regarding insurance. (Id.) The HHS Mandate will require him, as not just an owner but the operator of the company, to engage in a practice repugnant to his
employers, 77 Fed. Reg. 16501, 16503 (Mar. 21, 2012), and has recently announced changes. See also Wheaton College v. Sebelius, --- F.3d ----, 2012 WL 6652505 (D.C. Cir. Dec. 18, 2012).
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religious beliefs. Moreover, he acts for the Kennedy family when he operates the business that they own. Requiring the Kennedys to violate their religious beliefs when they operate the business that they own is a substantial burden under the RFRA. The burden is not too attenuated because it is experience in a commercial setting and through the corporate form.
The Plaintiffs “are called to live out the teachings of Christ in their daily activity.” (Id. at ¶ 32.) Autocam’s for-profit status is merely “the business form through which the individual Plaintiffs endeavor to live their vocation as Christians in the world.” (Id. at ¶ 33.) Operating in the world as a business is fully consistent with and a part of its owners’ religious practice. (Id.) Engaging in commerce is not mutually exclusive with the exercise of religion. The Supreme Court has allowed commercial proprietors to assert religious exercise claims. See United States v. Lee, 455 U.S. 252, 256-57 (1982) (Amish employer could object on religious liberty grounds to social security taxes); Braunfield v. Brown, 366 U.S. 5699, 605 (1961) (Jewish merchants could challenge Sunday closing law that made “the practice of their religious beliefs more expensive”). In both of those cases, the government action survived the challenge precisely because the Court concluded that the laws in question were narrowly tailored—the Supreme Court still applied strict scrutiny and permitted the challenge to go forward. Lee, 455 U.S. at 257-60; Braunfield, 366 U.S. at 607-609.
Although Autocam itself has rights, which are discussed below, a burden on the company in this context is certainly a burden on its proprietors. If a government regulation forced Orthodox Jewish deli owners to serve non-kosher food against the dictates of their religion, this would certainly violate their rights and deny them the ability to make a public witness about the importance of keeping kosher. Their rights would be violated even if they operated their deli for a profit and even if they operated it as a corporation.
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That a company’s owners enjoy the benefits of the corporate form cannot change the calculation. There is no legal or factual basis for the notion that the Kennedys forfeited their constitutional rights when they chose to conduct business through business entities authorized by state law. This is as it should be because any effort to make the Kennedy’s surrender their fundamental rights in order to use the corporate form would itself be unconstitutional. See Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996) (“our modern ‘unconstitutional conditions’ doctrine holds that the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected [First Amendment rights] even if he has no entitlement to that benefit”); Dolan v. City of Tigard, 512 U.S. 374, 385 (1994) (“Under the wellsettled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government . . . .”).4 Here, the Kennedy family seeks to live out their religious faith, in part, in the way they conduct the business they own and operate. To impose a ruinous fine for doing so substantially burdens their religious exercise and triggers the RFRA.
C. Autocam itself is protected under the RFRA. Because Autocam itself exercises religion under the RFRA, the HHS Mandate also imposes a substantial burden upon its free exercise of religion. The Court need not decide whether Autocam itself exercises religion because its owners and operators can exercise religion, and Autocam can raise their rights. Storman’s, Inc. v. Selecky, 586 F.3d 1109, 1120-21 (9th Cir. 2009) (“a corporation has standing to assert the free exercise rights of its owners”); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619-20 (9th Cir. 1988) (company “has standing to assert [its owners’] Free Exercise rights”); NAACP v. Button, 371 U.S. 415, 428-430 (1963)
4 This same doctrine would apply to any suggestion that the Plaintiffs must give up the option of operating a self-insured plan.
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(corporations can assert rights of others). The Verified Complaint does state a claim on Autocam’s behalf.
The Government’s argument that Autocam does not and cannot exercise religion, and thus that its religious exercise cannot be burdened, does not fit with the factual allegations in the Verified Complaint, which must be taken as true for the purposes of this motion. The Verified Complaint alleges that the Autocam corporations “merely represent the business form through which the individual Plaintiffs endeavor to live their vocation as Christians in the world.” (Verif. Comp. at ¶ 33.) The Complaint explicitly and repeatedly alleges that the Plaintiffs—including Autocam—are bound by their religious convictions not to provide the drugs and services at issue here and that the HHS Mandate burdens their religion. (Id. at ¶¶ 31-41, 44, 46, 97-100, 159163.) And a corporation, which exercises religion, is protected by the RFRA.
The RFRA protects “a person’s exercise of religion.” 42 U.S.C. § 2000bb-1. Under the basic rules of construction: “In determining the meaning of any Act of Congress, . . . . the words ‘person’ and ’whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Unless the plain language excludes corporations or inclusion of corporations would be inconsistent with the statutory scheme, laws covering persons are construed to cover corporations. See Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010) (applying 1 U.S.C. § 1).
Reading the definition of person to cover corporations would be consistent with the statutory scheme because corporations already benefit from other civil rights provisions and from the First Amendment rights RFRA was designed to restore.5 See, e.g., Thinket Ink. v. Sun Microsystems, Inc., 368 F. 3d 1053, 1058-60 (9th Cir. 2004) (corporations may bring Section
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1981 actions for racial discrimination); White Mountain Apache Tribe v. Williams, 810 F.2d 844, 867 (9th Cir. 1984) (corporations may bring Section 1983 actions and qualify as “persons” under the 14th Amendment, the equal protection clause, and the due process clause). And corporations qualify as “persons” under the 14th Amendment, the equal protection clause, and the due process clause. Id. Corporations have brought free exercise cases before. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (claim involving a “notfor-profit corporation organized under Florida law”); Okleveuha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012); Mirdrash Sephardi, Inc. v. Town of Surfside, 367 F.3d 1214 (11th Cir. 2004); see also Durham & Smith, 1 Religious Organizations and the Law § 3:44 (2012) (explaining reasons religious organizations use the corporate form).
The Supreme Court has famously recognized that free-speech protection extends directly to corporations. Citizens United v. Fed Election Comm’n, 558 U.S. 310; 130 S.Ct. 876, 9000 (2010) (“The Court has . . . rejecting the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”). And the First Amendment’s various protections are cognate rights such that free speech and free exercise cannot be separated. See Thomas v. Collins, 323 U.S. 516, 530 (1945) (First Amendment rights “though not identical, are inseparable. They are cognate rights.”). In the same way that a for-profit corporation need not be organized and operated primarily for the purpose of engaging in political speech to invoke the First Amendment’s free speech protections, see First Nat’l Bank v. Bellotti, 435 U.S. 765, 784
5 As the Government recognizes, although Autocam Medical is a Limited Liability Company, the same rules apply to LLCs as corporations. Accordingly, the Plaintiffs will simply use the phrase corporations throughout this brief.
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(1978),6 a corporation need not be organized and operated for a primarily religious purpose to benefit from the protections of the Free Exercise Clause and the RFRA, see Storman’s, 586 F.3d at 1120, n.9 (“an organization that asserts the free exercise rights of its owners need not be primarily religious”).
The undisputed factual record attests that Autocam, through the actions of its owners and operators, has been exercising religion. (Verif. Comp. at ¶¶ 31-35.) Even while providing otherwise generous healthcare benefits and wages, Autocam refused to cover contraception and abortion-causing products that violated its religious beliefs and the religious beliefs under which it was operated. (Id. at ¶¶ 38-40.) As the Plaintiffs have explained, the very reason they provide generous benefits, while arranging to exclude a particular category based on a moral objection, is that the company is exercising religion. A company can exercise religion and express its religious views in the same way as it can hold political beliefs and express political positions— through the actions of its human agents and operators.
The inferences the Government offers in support of its motion are inferences drawn against the Plaintiffs, and also, insupportable. Michigan law permits corporations to engage in any lawful purpose and does not, in fact, treat the exercise of religion as a prohibited practice. MCL 450.1251 (corporations); MCL 450.4201 (LLCs). The Government seeks to avoid this fact of the matter and the factual allegations of the Complaint by focusing on the word “secular” in the Verified Complaint, which is used in contrast to the HHS Mandate’s religious employer
6 Belotti, 435 U.S. at 778 n. 14, 701-02, White v. United States, 322 U.S. 694 (1944), and Wilson v. United States, 221 U.S. 361, 382 (1911) explain the circumstances under which a constitutional right applies to corporations. Under the analysis offered by these cases, the right to exercise religion applies to corporations because it is not in the domain subject to the powers of Congress and corporate exercise of religion serves societal interest.
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exemption (see Verif. Compl. at ¶¶ 154-55) and Michigan’s corporate lawcovering expressly ecclesiastical corporations, see, e.g., MCL 450.178 et seq.; MCL 458.1 et seq.7
Here the Government seeks to use a dictionary definition of “secular” in an attempt to contradict the factual allegations in the complaint. But the dictionary definition does not even support the argument. The Government treats secular as being in conflict with religion and cites part of the dictionary definition of “secular,” but the rest of the definition gives it proper context:
a : of or relating to the worldly or temporal <secular concerns> b : not overtly or specifically religious <secular music> c : not ecclesiastical or clerical <secular courts> <secular landowners> Merriam-Webster, http://www.merriamwebster.com/dictionary/secular/. Being secular does not mean the absence of religion. Instead, a secular entity operates in the world (outside the ecclesiastical sphere), in a fashion that is not exclusively religious. A “secular landowner,” to give the example used by Merriam-Webster, is in contrast to the church itself as a landowner, and is certainly able to exercise religion. Certainly a “secular landowner” would enjoy the benefits of the First Amendment and the RFRA. Under Plaintiffs’ religion, there is nothing wrong with being “secular” or “worldly.” Quite the contrary, the whole purpose of their vocation is to practice their religion as they make their living in this world. Plaintiffs “are called to live out the teachings of Christ in their daily activity.” (Verif. Compl. at ¶ 32.) Autocam’s for-profit status is merely “the business form through which the individual Plaintiffs endeavor to live their vocation as Christians in the world.” (Id. at ¶ 33.)
7 The Government also raises a confusing and irrelevant argument about Title VII and a purported conflict between its definition of religious organizations and employment discrimination. Congress chose not to include Title VII’s definitional limits of a religious exemption when adopting the RFRA. Moreover, there is no authority for reading Title VII’s exemption language into the First Amendment or RFRA. The Government also mistakenly suggests that profit making categorically excludes religious exercise; under Title VII this is just one factor among many in determining when an organization is a “religious
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Operating in the world as a business is fully consistent with and a part of its owners’ religious practice. (Id.) Secular for-profit corporations can, and often do, engage in quintessential religious acts like tithing, supporting charities, and making a public commitment to act in accordance with a religious faith. Thus, the worldly nature of Autocam does not prevent it from exercising religion. The facts allege that Autocam practices religion precisely because its owners operate through that business form. And the RFRA protects a corporation’s exercise of religion. The HHS Mandate must, therefore, be tested under the RFRA’s strict scrutiny.
The bottom line is that the dictionary’s effort to define the terms religious and secular does not govern the Plaintiffs. And the whole point of their complaint is that they regard their entrepreneurial endeavor as a way to give glory to God.8 Consequently, even if the falsedichotomy the Government seeks to gloss onto the dictionary definitions were correct (as a matter of interpreting the dictionary), it would not control or limit the Plaintiffs’ claims.
D. The exception-riddled HHS Mandate is not justified by a compelling interest. To show a compelling interest, the Government must “specifically identify an ‘actual problem’ in need of solving,” and showing that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011). The Government is required to go beyond “broadly formulated interests” and instead specify “the asserted harm of granting specific exemptions to particular religious claimants.” Gonzales, 546 U.S., 431. This is the “focused inquiry required by the RFRA and the
corporation” for Title VII purposes. See, e.g., Leboon v. Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 226,-227 (3d Cir. 2007) (explaining nine-factor Title VII test) 8 This is consistent with the Catholic Church’s use of the word “secular.” For example, Paragraph 928 of the Catechism of the Catholic Church covers “secular institutes,” such as Opus Dei, “in which the Christian faithful living in the world strive for the perfection of charity and work for the sanctification of the world especially from within.”
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compelling interest test.” Id. at 432; see also Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 664 (1994) (government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way”).
The Government bears the burden of proof, and “ambiguous proof will not suffice.” Brown, 131 S.Ct. at 2739. As such, the Government is required to offer actual evidence. See United States v. Playboy Ent’mt Group, Inc, 529 U.S. 803, 821 (2000) (nothing that, “[w]ithout some sort of field survey, it is impossible to know how widespread the problem in fact is”). Specifically, this requires “evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program.” Gonzales, 546 U.S. at 435. And the evidence must show a compelling interest in applying the law to “the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31 (emphasis added). Even assuming that the two interests asserted by the Government—public health and gender equality—are compelling, the Government has failed to carry this burden for two key reasons.
First, the Government has no proof that Autocam’s female employees and the beneficiaries of its benefits policy have a healthcare problem that needs addressing, let alone a compelling problem. It relies on a report that uses broad terms about women in general. It offers nothing that seems to relate in any way to the health or equality of women covered by Autocam’s plans. Indeed, the evidence as alleged in the Verified Complaint says the exact opposite—Autocam has great preventative care: “Autocam's program covers one hundred percent (100%) of the cost of employees' preventive care, including health maintenance exams, including X-rays, scans, gynecological exams, and screenings, pre-natal, post-natal, and well-
See http://www.vatican.va/archive/ccc_css/archive/catechism/p123a9p4.htm. To Catholics, secular means acting out religion in the world, rather than in the Church hierarchy, not the absence of religious
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baby care.” (Verif. Comp., at ¶ 36.) Autocam also provides its employees up to $1,500 that can be used to pay for any lawful service. (Id.) The Government’s arguments below missed the mark because they did not address the situation presented by Autocam: a company that provides generous preventative benefits, generous wages, and $1,500 in dollars that employees can spend. Even if the Government can argue it has a compelling interest in coercing some employers to provide contraception, abortion-causing drugs, and related services at no cost to the employee, it does not have a compelling interest in requiring Autocam to do so.
Second, the Government cannot show that its scheme is undermined by accommodating the Plaintiffs when it has accommodated so many others. The HHS Mandate, and the ACA which applies it, are subject to numerous exceptions that cover millions of people, including:
 Individual members of a “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds in their totality, such as certain members of the Islamic faith or the Amish are exempt. 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii). But individuals and companies whose religious beliefs allow—or encourage—them to provide health insurance are not exempt from the HHS Mandate. Thus, it is essentially the basis of the religious objection and the tenants of the religion that determines whether a religious exemption applies.
 Employers with fewer than 50 full-time employees are exempt. 26 U.S.C. § 4980H(c)(2)(B)(i). But employers with more than 50 full-time employees must provide government-approved health insurance, which is subject to the HHS Mandate.
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 Non-profit employers who qualify under the exemption of a “religious employer” are exempt. 45 C.F.R. § 147.130 (a)(iv)(A) and (B). But employers who have chosen to organize their company on a for-profit basis are subject to the HHS Mandate.
 Employers with health care plans that are considered to be “grandfathered,” which, amongst meeting other criteria, have been in place and remain unchanged since March 23, 2010, are exempt. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.98151251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. But companies such as Autocam that have made plan changes after that date are subject to the HHS Mandate.
By the White House’s own numbers, the 50-employee rule essentially exempts 96% of all employers in the United States, which covers about 34 million workers.9 The exemption for grandfathered plans is even more significant. Indeed, the Government initially “exempted over 190 million health plan participants and beneficiaries” from the HHS Mandate. Newland, supra, at *7. This scheme of exceptions “completely undermines any compelling interest” behind the HHS Mandate. Newland, supra, at *7. Thus, the Government has little or no interest in applying the HHS Mandate to women who already receive generous benefits and cannot claim such interest to be compelling when so much of the country is exempted.
E. The HHS Mandate is not the least restrictive means. The fundamental question here is whether Autocam can be exempted without undermining the Government’s interest. See, e.g., United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The Supreme Court has firmly rejected the argument that making an
9 The Affordable Care Act Increases Choice and Saving Money for Small Businesses at p. 1: http://www.whitehouse.gov/files/documents/health_reform_for_small_businesses.pdf
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exemption for one group means you have to make exceptions for others as the “classic rejoinder of bureaucrats.” Gonzales, 546 U.S. at 436. Under the RFRA, the Government is required to show why exceptions cannot work for these Plaintiffs under a compelling interest test. Id. And given that Autocam provided generous benefits, complete coverage of preventative care, and employer-funded health savings accounts, the Government cannot show why an exception for these Plaintiffs would not work.
The Government points to a report that admittedly provides no evidence related to the people covered by Autocam’s health plan or health plans like Autocam’s. The Government regurgitates general statements about women not having access to such services without showing or even trying to explain how the women covered by Autocam’s plan cannot have their needs met by the $1,500 in HAS funds. At this point, the Court is reviewing the facts as alleged in the Complaint. The Plaintiffs allege that women covered by Autocam’s plan receive $1,500 towards an HSA and enjoy 100% coverage of preventative care (including gynecological exams, and screenings, pre-natal, post-natal, and well-baby care). (Verif. Compl. at ¶ 36.) These facts show that exempting Autocam from the HHS Mandate would not undermine any compelling interest.
The Government also cannot show that other alternatives would not achieve its goals. “When a plausible, less restrictive alternative is offered . . . it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals.” Playboy Entm’t Group, 529 U.S. 803, 816 (2000). There are innumerable possible schemes that could more widely distribute contraception and reduce its cost at least some of which imposes no additional cost on the Government, including: 1) providing free birth control by creation of a government-sponsored contraception insurance plan, 2) providing free birth control by direct government compensation for contraception and sterilization providers, 3) providing free birth control by a mandate on the contraception manufacturing industry itself, 4) making birth control cheaper through tax credits
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or deductions, 5) offering grants to state governments and community health centers, 6) raising taxes to fund such programs rather than requiring employers to directly provide drugs that violate their beliefs, 7) reducing the cost of contraception by reducing government regulation, or 8) requiring employers to either cover contraception in a health plan or provide unrestricted funds to employees in an HSA. The Government will not be able to respond with specifics such as numbers, costs, or anything resembling proof that the Plaintiffs’ suggestions would hurt public health or women’s equality because no such proof exists. Thus, the Government cannot survive the RFRA’s strict scrutiny.
F. The prospect of additional litigation should not sway the Court. As set forth above, the Government cannot meet the stringent requirements of the RFRA. Many of its arguments—e.g. the danger of individuals and companies being permitted to follow the dictates of their conscience in spite of a poorly-conceived regulatory regime—are policy arguments against the RFRA itself. This Court may have concern about the parade of horribles trotted out by the Government or the prospect of increased litigation under the RFRA. But the Court should not let these arguments concern it. The RFRA is a product of Congress, and if Congress does not like the outcome or conflict between the laws it passes, it can change the law. If Congress prefers the HHS Mandate over the RFRA, it can prevent the RFRA from applying. It has not done so. Furthermore, most purported religious objectors to regulations of employers and the market place would likely fail on their challenges. And the Supreme Court has rejected such slippery slope arguments in the context of the RFRA. Gonzales, 546 U.S. at 436. This case presents a unique situation where the Government lacks any compelling interest in requiring specific coverage for individuals with generous benefits, has no evidence, and has simultaneously exempted most of the country from the supposedly critical regulation. That the Government loses here does not mean it loses the
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ability to regulate employers more broadly. And that the Government is forced to respect the Plaintiffs’ religious beliefs does not mean that anyone else is forced to accept those beliefs. II. The Verified Complaint states claims under the First Amendment.
A. The HHS Mandate violates the Free Exercise Clause. Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Government argues that the HHS Mandate is generally applicable and has an incidental, as opposed to targeted, impact on the Plaintiffs’ religious practice. (Br. at 20.). But the HHS Mandate is not generally applicable. As detailed above, the law is riddled with exceptions. At least some of these exceptions are explicitly religious based and favor other religions. See 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii). Thus, certain non-grandfathered plans that are not otherwise exempt would be exempt based on religious objections. And the Government has arbitrary authority to grant waivers. (Verif. Compl. at ¶¶ 57, 101.) Simply put, the Government insists that the law is generally applicable because it applies generally to any for-profit or non-profit employers that 1) do not meet the Government’s definition of religious employers, 2) cannot claim to be grandfathered, 3) have more than 50 full-time employees, 4) are not members of certain preferred, recognized religious sects, and 5) have not obtained a waiver from the Government. That is not a generally applicable mandate. The Government’s argument that the regulations do not target a particular religion run counter to the factual allegations of the complaint. (See Br. at 20.) The Verified Complaint alleges that Defendant Sebelius told NARAL Pro-Choice America “we are at war” shortly after the comment period on the HHS Mandate closed. (Verif. Comp. at ¶ 76.) And it alleges that the Government was well aware of the religious concerns that it chose to violate with the HHS Mandate. (Id. at ¶ 75.) It is incredulous for Defendant Sebelius to insist that she is waging a war in one place while insisting the actions she has taken in support of her war were not targeted.
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And the Plaintiffs have already explained how the HHS Mandate burdens their religious exercise. Taking the allegations as true for the purpose of this motion, the Plaintiffs have stated a claim under the Free Exercise Clause.
B. The HHS Mandate violates the Establishment Clause. As the Government notes: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). And a law that prefers one religion over another is subject to strict scrutiny. Id. at 246. The HHS Mandate does just that, both in who it covers and how it permits the Government to decide who is covered. As noted by the Government’s strong resistance to this case, the HHS Mandate and the ACA law provide no religious objection for Catholics operating in the world. But individual members of a “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds in their totality, such as certain members of the Islamic faith or the Amish are exempt. 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii). Entities considered to be “religious employers” by the Government are also exempt, as the Government admits. (Br. at 22-23.) The Plaintiffs allege that the Government has unbridled discretion as to the definition of a religious employer, which the Government counters simply by saying Autocam does not meet the arbitrary definition of religious employer set by the Government. (Br. at 23.) But that argument proves too much: it is precisely this arbitrary authority possessed by the Government to define who is and who is not a religious employer, based at least in part as to how that religion operates with the broader world at large, that violates the Establishment Clause. Accordingly, the Plaintiffs have stated a claim under the Establishment Clause.
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C. The HHS Mandate violates the Free Speech Clause. The Plaintiffs agree with the Government that: “The right to freedom of speech ‘prohibits the government from telling people what they must say.’” (Br. at 24 (citing Rumsfeld v. Forum for Academic & Inst. Rights (“Fair”), 547 U.S. 47, 61 (2006))). “Some of this Court's leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.” Fair, 547 U.S. at 62; see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 575 (1995) (First Amendment protects the right “not to propound a particular point of view.”); Wooley v. Maynard, 430 U.S. 705, 715 (1977) (protects the right “to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable”); Keller v. State Bar of California, 496 U.S. 1 (1990) (government cannot compel state bar members to finance political activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (cannot require state employees to provide financial support for ideological union activities they oppose). Indeed, the Supreme Court recognizes that compelling an organization to accept a government mandate forces “the organization to send a message,” to its own people and “the world,” that the organization accepts the “conduct as a legitimate form of behavior.” Boy Scouts of America v. Dale, 530 U.S. 640, 653 (2000). The Plaintiffs factual allegations, which the Court must accept as true for the purposes of this motion, are exactly that they are being forced to say something. In no uncertain terms, the complaint alleges that the Plaintiffs will be forced to provide not only the objectionable drugs but also government-mandated “education and counseling” related to those drugs. (Verif. Compl. at ¶¶ 73, 82, 86, 98, 143, 150.) This counseling directly promotes the drugs that the Plaintiffs oppose. (Id. at ¶ 98.) Counseling and education are by their very nature inherently expressive activities. Although the Plaintiffs maintain that being forced to provide the objectionable drugs
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and services itself violates the First Amendment, counseling individuals about drugs and services that the Plaintiffs object to requires them to speak in favor of that which they oppose and undermines their ability to speak out in opposition and associate with others who share these views.
The Plaintiffs have also challenged the “unbridled discretion” under which the administration grants waivers. (Id. at ¶¶ 153-157.) Other entities have been made exempt from ACA requirements, and the government “may” grant exemptions to religious groups. 26 U.S.C. § 5000A(d)(2)(a)(i)-(ii). “The First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992). And for these and the other reasons detailed above, the HHS Mandate is unconstitutional.
CONCLUSION For these reasons, the Plaintiffs respectfully request that the Court deny the motion to dismiss.
Respectfully submitted,

Dated: March 18, 2013
Patrick T. Gillen (P#47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu

MILLER JOHNSON Counsel for Plaintiffs
/s/ Jason C. Miller Jason C. Miller (P#76236) MILLER JOHNSON Attorneys for Plaintiffs 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj@millerjohnson.com
Peter Breen* Thomas More Society Attorneys for Plaintiffs
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Case 1:12-cv-01096-RJJ Doc #53 Filed 03/18/13 Page 26 of 26 Page ID#868 29 South LaSalle St. – Suite 440 Chicago, IL 60603 Tel. 312-782-1680 tbrejcha@thomasmoresociety.org pbreen@thomasmoresociety.org *Application for admission to be filed.
24
MJ_DMS 25166511v1

 
 Case 1:12-cv-01096-RJJ Doc #58 Filed 04/01/13 Page 1 of 13 Page ID#886

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

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:12-cv-01096-RJJ

DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS

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INTRODUCTION When individuals establish a for-profit, secular company, that entity becomes subject to a host of laws and regulations designed to protect employees: from Title VII of the Civil Rights Act and the Americans with Disabilities Act (which prohibit discrimination in employment) to the Occupational Health and Safety Act (which assures safe and healthy working conditions for employees) to the Fair Labor Standards Act and the Family and Medical Leave Act (which set minimum standards for employee wages and benefits) to laws, like the one at issue here, that govern the health coverage that a company provides its employees. The government is not aware of any Supreme Court case – and plaintiffs cite none – in which a for-profit, secular company like Autocam obtained an exemption from such general laws designed to protect employees under either the Religious Freedom Restoration Act (“RFRA”) or the First Amendment. And for good reason: Granting such exemptions would have “troubling” implications – it would not only “paralyze the normal process of governing,” Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, *7 (W.D. Mich. Dec. 24, 2012) (“Op. Denying Prelim. Inj.”), mot. for inj. pending appeal denied, No. 12-2673 (6th Cir. Dec. 28, 2012), recons. denied, No. 12-2673 (6th Cir. Dec. 31, 2012 ), but also limit the protections employees of a secular company receive to only those that are consistent with the personal religious beliefs of the company’s owner(s). Because plaintiffs have failed to show that the law requires such an exemption for Autocam – a secular manufacturing company that does take an individual’s religious beliefs into account when hiring – plaintiffs’ RFRA and Free Exercise Clause claims should be dismissed. This Court should also dismiss plaintiffs’ remaining claims under the First Amendment. The preventive services coverage regulations do not violate the Free Exercise Clause because they are neutral and generally applicable: they do not target, or selectively burden, religiouslymotivated conduct. Nor do the regulations violate the Establishment Clause by preferring some religious denominations over others, or violate plaintiffs’ free speech rights. See, e.g., O’Brien v. U.S. Dept. of HHS, No. 4:12-CV-476 CEJ, 2012 WL 4481208, *7 (E.D. Mo. Sept. 28, 2012).

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ARGUMENT
I. THE COURT SHOULD DISMISS PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM
A. Plaintiffs Have Not Sufficiently Alleged A “Substantial Burden” On Their Religious Exercise
Although plaintiffs acknowledge that the “substantial burden” inquiry is ultimately a legal question, they nevertheless urge that the “facts as alleged . . . state that a substantial burden applies.” Br. Opposing Mot. to Dismiss at 7 ( “Pls.’ Br.”), ECF No. 53. As an initial matter, defendants note that, while this Court must accept as true plaintiffs’ well-pleaded factual allegations, it need not accept “the legal conclusion, cast as a factual allegation, that [plaintiffs’] religious exercise is substantially burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 ( D.C. Cir. 2008); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).1 Defendants further note that the Court’s preliminary injunction opinion essentially hewed to this approach. Without “determining the ‘substance’ and the ‘substantiality’ of the Plaintiffs’ religious beliefs,” Pls.’ Br. at 7, or denying their factual allegations, the Court examined “whether the claimed burden – no matter how sincerely felt – . . . a mounts to a substantial burden on a person’s exercise of religion.” Op. Denying Prelim. Inj., 2012 W L 6845677, at *6. The Court’s analysis – with which a Sixth Circuit motions panel agreed, and which is reflected in rulings by the Third and Tenth Circuits2 – fully supports dismissing plaintiffs’ RFRA claim.
1 The government’s proposed accommodation of the religious objections of certain non-profit religious organizations or exemption of certain religious employers is not, as plaintiffs argue, Pls.’ Br. at 6 n.3, a concession that the challenged regulations substantially burden any exercise of religion. The Supreme Court “ha[s] long said that there is room for play in the joints between [the Religion Clauses of the First Amendment],” such that “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Locke v. Davey, 540 U.S. 712, 718-19 (2004) (quotations omitted; emphasis added). 2 See Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, *8 (E.D. Pa. Jan. 11, 2013), mot. for stay pending appeal denied, No. 13-1144 (3d Cir. Feb. 7, 2013) (“Conestoga Third Circuit Order”); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1296 (W.D. Okla. Nov. 19, 2012), mot. for inj. pending appeal denied, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012) (“Hobby Lobby Tenth Circuit Order”), appl. for inj. pending appeal denied, 133 S. Ct. 641 (Dec. 26, 2012) (Sotomayor, J., in chambers).
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First, there is no substantial burden on Autocam because secular, for-profit corporations do not exercise rights under RFRA. See Defs.’ Br. in Support of Mot. to Dismiss at 6-11 (“Defs.’ Br.”), ECF No. 50. Plaintiffs cite no authority, much less from the Supreme Court, that suggests otherwise.3 See Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 733-34 (6th Cir. 2007) (under the parallel language of the Religious Land Use and Institutionalized Persons Act, “‘[t]he term “substantial burden” . . . is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden or religious exercise’” (quoting 146 Cong. Rec. S7774–01, 7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy))); id. at 736 (“Congress has cautioned that we are to interpret ‘substantial burden’ in line with the Supreme Court's ‘Free Exercise’ jurisprudence, which suggests that a “substantial burden” is a difficult threshold to cross.”); Defs.’ Br. at 7-9.4
Second, the regulations also do not substantially burden the Kennedys’ religious exercise because, as the Court has noted, the regulations apply only to the group health plan sponsored by Autocam, a l egally separate entity. See Op. Denying Prelim. Inj., 2012 W L 6845677, at *7. Plaintiffs attack a straw man when they accuse the government of arguing that individuals cannot exercise religion in their conduct of business. Pls.’ Br. at 9. When it comes to the government’s actual argument – that any burden on t he Kennedys’ religious exercise is too attenuated to be substantial, because it results from obligations that the regulations impose on a legally separate,
3 The cases plaintiffs do cite, Pls.’ Br. at 8, 11, involve individuals or non-profit, religious organizations, not secular, for-profit corporations that are legally separate from their owners like Autocam. See United States v. Lee, 455 U.S. 252 (1982) (individual member of the Old Order Amish); Braunfeld v. Brown, 366 U.S. 599 (1961) (individuals that operated stores on Sunday); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (non-profit church; Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 833 (9th Cir. 2012) (same); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1220 (11th Cir. 2004) (synagogues). Nor are plaintiffs helped by Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), Pls.’ Br. at 12, which expressly declined to decide whether “a for-profit corporation can assert its own rights under the Free Exercise Clause,” 586 F.3d at 1119. Stormans held that a particular corporation had standing to raise the rights of its owner (who was not a party). Id. at 1119-22. But this case does not present that standing question, as the Kennedys are also plaintiffs here. 4 Nor could a secular, for-profit corporation such as Autocam qualify as a religious organization for purposes of other federal laws, as plaintiff suggest. Pls.’ Br. at 13 n.7; see, e.g., Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343-44 (D.C. Cir. 2002) (organization qualifies for a religious exemption if, among other things, it is “organized as a ‘nonprofit’” and holds itself out as religious); Defs.’ Br. at 9; infra at 6-7.
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secular corporation’s group health plan, Defs.’ Br. at 11-12 – plaintiffs say little.5 “The law protects th[e] separation between the corporation and its owners for many worthwhile purposes. Neither the law nor equity can ignore the separation when assessing claimed burdens on t he individual owners’ free exercise of religion caused by requirements imposed on t he corporate entities they own.” Op. Denying Prelim. Inj., 2012 WL 6845677, at *7.
Finally, even assuming that Autocam exercises religion within the meaning of RFRA or that the legal separation created by the corporate form can be selectively pierced when the corporation or its owners want it to be, the regulations still do not substantially burden plaintiffs’ religious exercise. As this Court and others have recognized, any burden imposed by the regulations is too attenuated to satisfy RFRA’s substantial burden requirement. Id. at *6; see also, e.g., Hobby Lobby Tenth Circuit Order, 2012 WL 6930302, at *3; Conestoga Third Circuit Order at 3.
B. Even If There Is A Substantial Burden, The Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests
Although the Court need not reach the issue, given the lack of a substantial burden on religious exercise, defendants have demonstrated why the contraceptive-coverage requirement is narrowly tailored to advance compelling governmental interests in public health and gender equality. Plaintiffs argue the government has not met its burden for “two key reasons,” Pls.’ Br. at 15, ne ither persuasive. First, plaintiffs assert that defendants rely on evidence – the IOM Report – about “women in general,” rather than “the health or equality of women covered by Autocam’s plans,” id., as though the government must separately analyze the impact of and need for the regulations as to each and every employer and employee in America. But this level of
5 Plaintiffs’ assertion that it is unconstitutional not to permit the owners of a secular, for-profit corporation to impose their religious beliefs upon the benefits the company offers its employees, Pls.’ Br. at 9 & n.4, has no merit: “‘When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.’” Op. Denying Prelim. Inj., 2012 WL 6845677, at *7 (quoting Lee, 455 U.S. at 261); see also McClure v. Sports & Health Club, 370 N.W.2d 844, 853 (Minn. 1985) (“By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs.”).
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specificity would lead to an unworkable standard and would render this regulatory scheme – and
potentially any regulatory scheme challenged by religious objectors – completely unworkable. See Lee, 455 U.S. at 259-60.6 In any event, defendants have explained why a woman who wishes
to use contraceptives and who works for Autocam or a similarly-situated employer (or a woman
who is a covered spouse or dependent of an employee of such an employer) is significantly
disadvantaged when such an employer chooses to provide a plan that fails to offer contraceptive
services. See Defs.’ Br. at 17-18.
Second, plaintiffs argue that the exemption they demand would not harm the
government’s compelling interests because the regulations purportedly contain “numerous
exceptions that cover millions of people.” Pls.’ Br. at 16-17. But this is not a case where under-
inclusive enforcement of a law suggests that the government’s “supposedly vital interest” is not
really compelling. Lukumi, 508 U.S. at 546-47. Many of the “exceptions” referred to by plaintiffs
are not exceptions from the preventive services coverage regulations at all, but are instead
provisions of the Patient Protection and Affordable Care Act (“ACA”) that exclude individuals and entities from other requirements imposed by the ACA.7 Another reflects the government’s
6 In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have expanded the inquiry to all similarly situated individuals or organizations. See, e.g., Lee, 455 U.S. at 260 (considering impact on the tax system if all religious adherents – not just the plaintiff – could opt out); United States v. Oliver, 255 F .3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exception. There are no safeguards to prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Baptist Church, 899 F .2d 1389, 1398 (4th Cir. 1990); United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003). Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006), is not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accommodate a p articular claimant. See id. at 435-36. But it construed the scope of the requested exemption as encompassing all members of the plaintiff religious sect. See id. at 433; see also Wisconsin v. Yoder, 406 U.S. 205 ( 1972) (exemption encompassed all Amish children); Sherbert v. Verner, 374 U .S. 398 (1963) (exemption encompassed all individuals who had a religious objection to working on Saturdays); O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy – that is, speculation that providing an exemption to one group will lead to exemptions for other nonsimilarly situated groups. It was not an invitation to ignore the reality that an exemption for a p articular claimant might necessarily lead to an exemption for similarly situated entities. See, e.g., Israel, 317 F.3d at 772 (recognizing that granting plaintiff’s RFRA claim “would lead to significant administrative problems for the [government] and open the door to a . . . proliferation of claims”); Op. Denying Prelim. Inj., 2012 WL 6845677, at *7.
7 First, while 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized religious sect or division thereof” who, on the basis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive
(footnote continued on next page)
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attempts to balance the compelling interests underlying the challenged regulations as well as
other requirements imposed by the ACA against other significant interests supporting the
complex administrative scheme created by the ACA.8 See Lee, 455 U.S. at 259 (“The Court has
long recognized that balance must be struck between the values of the comprehensive social
security system, which rests on a complex of actuarial factors, and the consequences of allowing
religiously based exemptions.”).
The only true exemption from the regulations cited by plaintiffs is the exemption for
certain non-profit religious organizations that qualify as “religious employer[s].” Pls.’ Br. at 17.
Clearly, the government can exempt non-profit, religious institutions such as churches and their
integrated auxiliaries, see 45 C.F.R. § 147.130( a)(1)(iv)(B), and address religious objections
raised by additional non-profit, religious organizations, see 78 Fed. Reg. 8456 ( Feb. 6, 2013) ,
without also extending such measures to for-profit, secular corporations. See, e.g., Lee, 455 U.S.
services coverage regulations. See also id. § 1402(g)(1). The minimum coverage provision provides no exemption from the regulations plaintiffs challenge, as it o nly excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide recommended preventive services coverage without cost sharing. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption plaintiffs seek, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61. Exempting these discrete and “readily identifiable,” id. at 260-61, classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a woman who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,” 26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U .S.C. § 5 000A(d)(2)(B)(ii) would not utilize health coverage – including contraceptive coverage – even if it were offered.
Second, 26 U.S.C. § 4 980H9(c)(2) does not, as plaintiffs assert, exempt small employers from the challenged regulations. Small businesses that elect to offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive health services without cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose eligibility for certain tax benefits if it did not do so. See 26 U.S.C. § 45R.
8 The ACA’s grandfathering provision, 42 U.S.C. § 18011, does not have the effect of providing the type of permanent exemption that plaintiffs seek. Although grandfathered plans are not subject to certain requirements, including the requirement to cover recommended preventive health services without cost sharing, the grandfathering provision is transitional in effect, and it is expected that a majority of plans will lose their grandfathered status by the end of 2013. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010). The grandfathering provision is “a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.” Legatus v. Sebelius, Case No. 12-12061, 2012 WL 5359630, *9 (Oct. 31, 2012), appeal docketed, No. 13-1092 (6th Cir. Jan. 24, 2013). “To find the Government’s interests other than compelling only because of the grandfathering rule would perversely encourage Congress in the future to require immediate and draconian enforcement of all provisions of similar laws, without regard to pragmatic considerations, simply in order to preserve ‘compelling interest’ status.” Id.
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at 260 ( noting that “Congress granted an exemption” from social security taxes, “on religious grounds, to self-employed Amish and others”). “Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, a re available to nonprofit religious organizations but not to for-profit secular organizations.” 78 F ed. Reg. at 8462. T he religious employer exemption and proposed accommodations are consistent with this longstanding federal law. Id. And, unlike the exemption plaintiffs seek for all employers that object to the regulations on religious grounds, neither these nor the other “exceptions” referred to by plaintiffs significantly undermine the government’s interests. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1208-09 (6th Cir. 1990); 78 Fed. Reg. at 8461-62 (explaining that employees of “religious employers,” i.e. house of worship, are likely to share their employer’s beliefs); supra at nn.7, 8.
Turning to least restrictive means, defendants have demonstrated why exempting Autocam and similarly-situated companies from the regulatory requirements plaintiffs challenge “would impede the state’s objectives,” S. Ridge Baptist Church, 911 F.2d at 1206, by removing their employees (and their employees’ covered spouses and dependents) from the very protections that were intended to further the government’s compelling interests. Defs.’ Br. at 1719. Plaintiffs assert that the government should “more widely distribute contraception and reduce its cost,” such as through “creation of a government-sponsored contraception insurance plan,” “direct government compensation” for contraception providers, “a mandate on the contraception manufacturing industry itself,” “tax credits or deductions,” “grants to state governments and community health centers,” “raising taxes,” “reducing government regulation,” or “requiring employers to either cover contraception in a health plan or provide unrestricted funds to employees in an HSA.” Pls.’ Br. at 18-19. These proposals – which turn the existing employerbased system upside-down to accommodate the owners of secular, for-profit companies at enormous administrative and financial cost to the government – reflect a fundamental misunderstanding of RFRA and the “least restrictive means” test that it incorporates. That test has never been interpreted to require the government to, in effect, “subsidize private religious
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practices.” Catholic Charities of Sacramento, Inc. v. Superior Ct., 85 P .3d 67, 94 ( Cal. 2004) (rejecting challenge to a state-law requirement that certain health insurance policies cover prescription contraceptives).9
II. THE COURT SHOULD DISMISS PLAINTIFFS’ FIRST AMENDMENT CLAIMS A. The Regulations Do Not Violate The Free Exercise Clause
Defendants have already demonstrated that the preventive services coverage regulations are generally applicable because they do not selectively “impose burdens only on conduct motivated by religious belief.” Lukumi, 508 U.S. at 543 (emphasis added); Defs.’ Br. at 19-22. Plaintiffs’ contrary view confuses generally applicability for universality, a view this Court and others have rejected already. See Op. Denying Prelim. Inj., 2012 WL 6845677, at *5; Defs.’ Br. at 20 (citing cases). In any event, the categorical exceptions cited by plaintiffs, Pls.’ Br. at 20, do not show that the challenged regulations selectively burden only religious conduct because those exceptions do not themselves disfavor religion. Supra at nn.7, 8. To be sure, the “religious employer” exemption excludes certain non-profit religious organizations from the contraceptivecoverage requirement, but the existence of that exemption cuts against plaintiffs’ claim that regulations selectively burden only religiously-motivated conduct. “It is just not true . . . that the burdens of the [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
As for neutrality, plaintiffs identify nothing in the regulations’ text or effect to suggest that their “object . . . i s to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533, 535. 10 Nor could plaintiffs do so. “The regulations were
9 In addition, plaintiffs’ challenge is to regulations promulgated by defendants, not to the ACA itself. But it is the ACA that requires that recommended preventive services be covered without cost-sharing through the existing employer-based system. See H.R. Rep. No. 111-443, pt. II, at 984-86. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives the statute would prevent them from doing so. 10 The allegations plaintiffs reference, Pls.’ Br. at 20-21, are irrelevant. The government’s subjective intent is not an element of a claim under the Free Exercise Clause. See, e.g., Grossbaum v. Indianapolis-Marion Cnty. Bldg. Auth., 100 F.3d 1287, 1292-94 & n.3 (7th Cir. 1996) (“The subjective motivations of government actors should . . . not be confused with what the Supreme Court referred to, in a Free Exercise Clause case, as the ‘object’ of a law.”); see
(footnote continued on next page)
8

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passed, not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 2012 WL 4481208, at *7 (dismissing similar claim).
B. The Regulations Do Not Violate The Establishment Clause Plaintiffs’ cursory Establishment Clause arguments fail. See Pls.’ Br. at 21. Plaintiffs incorrectly call 26 U.S.C. § 5000A(d)(2)(A) an exemption from the contraceptive-coverage requirement. The exemption for individuals from the minimum coverage provision under § 5000A(d)(2)(A) has nothing to do w ith plaintiffs’ claim that the contraceptive-coverage requirement on group health plans violates the Establishment Clause. See also supra at n.7. Similarly, plaintiffs do not state a claim by questioning the government’s “authority” to “define” a “religious employer” in the context of creating a religious accommodation. Pls.’ Br. at 21. “Accommodations of religion are possible because the legislative line-drawing to which the plaintiffs object, between the religious and the secular, is constitutionally permissible.” O’Brien, 2012 WL 4481208, at *10 (dismissing similar claim); Conestoga, 2013 WL 140110, at *15; see, e.g., Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 666 (1970) (upholding property tax exemptions for real property owned by non-profit, religious organizations and used for religious worship).11
C. The Regulations Do Not Violate The Free Speech Clause The preventive services coverage regulations do not compel any speech, any subsidy of a particular message, or any expressive conduct. Defs.’ Br. at 24; Op. Denying Prelim. Inj., 2012 WL 6845677, at *8. P laintiffs’ response reveals that their free speech claim is based on a fundamental misunderstanding of the regulations. Contrary to plaintiffs’ assertion, the regulations do not require Autocam to subsidize patient education and counseling that “directly
also Lukumi, 508 U.S. at 558 (Scalia, J., concurring in part and concurring in the judgment) (“The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted.”); id. at 533-35. 11 The definition of “religious employer” is consistent with longstanding practice, supra at 6-7, and uses well established criteria to determine eligibility. See, e.g., O’Brien, 2012 WL 4481208, at *9 (“[W]hile the Establishment Clause prohibits denominational preferences, it does not prohibit the government from distinguishing between religious organizations based upon structure and purpose when granting religious accommodations.”). Autocam clearly does not qualify for the exemption because it fails the requirement that it b e a nonprofit organization as described in section 6033 of the Internal Revenue Code. 45 C.F.R. § 147.130(a)(1)(iv)(B)(4).
9

Case 1:12-cv-01096-RJJ Doc #58 Filed 04/01/13 Page 11 of 13 Page ID#896
promotes the drugs that the Plaintiffs oppose.” Pls.’ Br. at 22. Rather, the regulations require that employer health plans include coverage for “patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited Mar. 27, 2013). The regulations do not purport to regulate the content of the education or counseling provided – that is between the patient and her health care provider. Therefore, this case does not involve the sort of “political and ideological causes” at issue in the compelledsubsidy cases cited by plaintiffs, Keller v. State Bar of Cal., 496 U.S. 1, 5 (1990) and Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977). Those cases do not stand for the proposition that an employer can refuse to provide health coverage for medical services because, during the course of a medical visit, a health care provider may say something with which the employer disagrees. Indeed, taken to its logical conclusion, Plaintiffs’ theory would preclude virtually all government efforts to regulate health coverage, as a medical visit invariably involves communication between patient and health care provider, and there may be many instances where the entity providing coverage disagrees with the content of this communication.12
CONCLUSION For the reasons above and in defendants’ opening brief, the Court should dismiss this case for failure to state a claim upon which relief can be granted.13 Respectfully submitted this 1st day of April, 2013,
STUART F. DELERY Acting Assistant Attorney General
12 Plaintiffs’ “unbridled discretion” theory is also baseless. Once again, plaintiffs rely on 26 U.S.C. § 5000A(d)(2), which is irrelevant here. See supra at n.7; id. at 9. And the lone case cited by plaintiffs is inapposite. See Forsyth Cnty. v. Nationalist Movement, 505 U .S. 123 ( 1992) (addressing prior restraints on speech in licensing/permit schemes). To the extent plaintiffs assert an unbridled discretion theory against the “religious employer” exemption, defendants have already explained why it lacks merit. See Defs.’ Br. at 22-23. 13 In their opposition, plaintiffs request oral argument on defendants’ motion to dismiss. Defendants do not believe oral argument is necessary but do not oppose it if the Court believes it would be helpful.
10

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IAN HEATH GERSHENGORN Deputy Assistant Attorney General PATRICK A. MILES, JR. United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendants
11

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CERTIFICATE OF SERVICE I hereby certify that on April 1, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI

 
 Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 1 of 20 Page ID#905

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: September 17, 2013

Ms. Brigitte Amiri ACLU 125 Broad Street, 18th Floor New York, NY 10004
Ms. Miriam J. Aukerman American Civil Liberties Union Fund of Michigan West Regional Office, 1514 Wealthy, S.E, Suite 242 Grand Rapids, MI 49506
Ms. Lisa Schiavo Blatt Arnold & Porter 555 Twelfth Street, N.W. Washington, DC 20004
Mr. Dorinda Bordlee Mr. Edward L. Metzger III Ms. Nike Nikas Ms. Catherine W. Short Adams, Stepner, Woltermann & Dusing P.O. Box 861 Covington, KY 41012
Mr. John J. Bursch Mr. Bernard Eric Restuccia Office of the Michigan Attorney General P.O. 30217 Lansing, MI 48909
Ms. Kimberlee Wood Colby Center for Law & Religious Freedom 8001 Braddock Road, Suite 302 Springfield, VA 22151
Mr. Charles E. Davidow Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W. Washington, DC 20006

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 2 of 20 Page ID#906
Ms. Deborah Jane Dewart 620 E. Sabiston Drive Swansboro, NC 28539
Mr. Noel J. Francisco Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001
Mr. Patrick Thomas Gillen Fidelis Center for Law and Policy 1025 Commons Circle Naples, FL 34119
Ms. Ayesha N. Khan Ms. Caitlin Eagen OConnell Mr. Gregory M. Lipper Americans United for Separation of Church and State 1301 K Street, NW, Suite 850 Washington, DC 20005
Ms. Alisa B. Klein Mr. Mark B. Stern U.S. Department of Justice Civil Division, Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Robb S. Krueger Kreis, Enderle, Hudgins & Borsos P.O. Box 4010 Kalamazoo, MI 49003
Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005
Mr. Jason Charles Miller Miller Johnson 250 Monroe Avenue, N.W., Suite 800 Grand Rapids, MI 49503

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 3 of 20 Page ID#907
Mr. Frederick Dickson Nelson Office of the Ohio Attorney General 30 E. Broad Street, 17th Floor Columbus, OH 43215
Ms. Martha Jane Perkins National Health Law Program 211 N. Columbia Street Chapel Hill, NC 27514
Mr. Bruce Harvey Schneider Stroock, Stroock & Lavan 180 Maiden Lane New York, NY 10038
Mr. Jay A. Sekulow American Center for Law & Justice 1000 Regent University Drive Robertson Hall Suite 422 Virginia Beach, VA 23467-0000
Ms. Mailee Rebecca Smith Americans United for Life 655 Fifteenth Street, N.W., Suite 410 Washington, DC 20005
Mr. Michael Jay Steinberg ACLU Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201
Re: Case No. 12-2673, Autocam Corporation, et al v. Kathleen Sebelius, et al Originating Case No. : 1:12-cv-01096
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 4 of 20 Page ID#908

cc: Ms. Tracey Cordes Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 5 of 20 Page ID#909

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 13a0278p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

AUTOCAM CORPORATION; AUTOCAM MEDICAL, LLC; JOHN KENNEDY; PAUL KENNEDY; JOHN KENNEDY IV; MARGARET

X -

KENNEDY; THOMAS KENNEDY,

-

Plaintiffs-Appellants, ,>

-

v.

-

-

KATHLEEN SEBELIUS, in her official capacity -

as Secretary of Health and Human Services; -

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; THOMAS E. PEREZ, in

-

his official capacity as Secretary of Labor;

-

UNITED STATES DEPARTMENT OF LABOR;

-

JACOB LEW, in his official capacity as Secretary of the Treasury; UNITED STATES

-

DEPARTMENT OF THE TREASURY,

-

Defendants-Appellees. N

No. 12-2673

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:12-cv-01096—Robert J. Jonker, District Judge.

Argued: June 11, 2013

Decided and Filed: September 17, 2013 Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*

_________________

COUNSEL
ARGUED: Patrick T. Gillen, FIDELIS CENTER FOR LAW AND POLICY, Naples, Florida, for Appellants. Alisa B. Klein, UNITED STATES DE PARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Patrick T. Gillen, FIDELIS CENTER FOR LAW AND POLI CY, Naples, Florida, Jason C. Miller, MILLER JOHNSON, Grand Rapids, Michigan, for Appellants. Alisa B. Klein, Mark B. Stern, UNITED STATES DEPARTMENT OF J USTICE, Washington, D.C., for Appellees.

*The Honorable Denise Page Hood, United States Di strict Judge for the Eastern District of Michigan, sitting by designation.

1

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No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 2

Jay Alan Sekulow, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C.,

Deborah J. Dewart, LIBERTY, LIFE AND LAW FOUNDATION, Swansboro, North

Carolina, Edward L. Metzger III,ADAMS, STEPNER, WOLTERMANN & DUSING,

PLLC, Covington, Kentucky, Catherine W. Short, LIFE LEGAL DEFENSE

FOUNDATION, Ojai, California, Nikolas T. Nikas, Dorinda C. Bordlee, BIOETHICS

DEFENSE FUND, Scottsdale, Arizona, Mailee R. Smith, AMERICANS UNITED FOR

LIFE, Washington, D.C., B. Eric Restuccia, OFFICE OF THE MICHI

GAN

ATTORNEY GENERAL, Lansing, Michigan, Frederick D. Nelson, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, Kimberlee Wood Colby, CENTER

FOR LAW AND RELIGI OUS FREEDOM CHRISTIAN LEGAL SOCIETY,

Springfield, Virginia, Noel J. Franci sco, JONES DAY, W ashington, D.C., Robb S.

Krueger, KREIS, ENDERLE, HUDGINS& BORSOS, P.C., Kalamazoo, Michigan, Lisa

S. Blatt, ARNOLD & PORTER LLP, W ashington, D.C., Bruce H. Schneider,

STROOCK & STROOCK & LAVAN LLP, New Yokr, New York, Martha Jane Perkins,

NATIONAL HEALTH LAW PROGRAM, Carrboro, No rth Carolina, Charles E.

Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington,

D.C., Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New

York, New York, Daniel Mach, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, Washington, D.C., Michael J. Steinb erg, Miriam Aukerman,

AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan,

Ayesha N. Khan, Gregory Lipper, Caitlin E. O’Connell, AMERICAN UNITED FOR

SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amici Curiae.

_________________

OPINION _________________

JULIA SMITH GIBBONS, Circuit Judge. Autocam Corporation and Autocam Medical, LLC (collectively, “Autocam”) are for-profit, secular corporations engaged in high-volume manufacturing for the automotive and medical industries. The companies are owned and controlled by members of the Kennedy family, all of whomare practicing Roman Catholics. Pursuant to regulations im plementing the Patient Protecti on and Affordable Care Act of 2010 (“ACA”), Pub. L. No. 111-148, 124 Stat. 119, Autocam’s health care plan is required to cover, without cost-sharing, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling” for female employees enrolled in its health plan. See Health Res. & Servs. Admin, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited August 5, 2013); 77 Fed. Reg. 8725-01 (Feb. 15, 2012) (codified at 45 C.F.R. § 147.130(a)(1)(iv)).

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Autocam and the Kennedys claim that compliance with this directive—popularly known as “the m andate”—will force them to violate the teachings of the Kennedys’ church, but failure to comply with it will result in significant fi nes against Autocam. They sued the Cabinet departm ents and secretaries responsible for im plementing the ACA’s mandatory coverage requirements on a variety of constitutional, statutory, and procedural grounds, and moved for a preliminary injunction that would relieve Autocam of its duty to provide the disputed coverage to its employees. The district court denied the motion. On appeal, Autocam and the Kennedys argue that they have a strong likelihood of success on thei r claim that the mandate violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb. Our sist er circuits that have considered whether for-profit corporations may be exempted from compliance with the mandate under RFRA have split on the proper answer to the question1. For the reasons that follow, we dismiss the claims of the individual plaintiffs on standing grounds and otherwise affirm the judgment of the district court.
I.
The Kennedy f amily members named in the com plaint own “a controlling interest” in the two corporate entities that comprise Autocam. John Kennedy serves as Autocam’s CEO and president a nd is primarily responsible for “setting . . . policies governing the conduct of all phases” of Autocam’s business. The two companies have 1,500 employees in fourteen facilities worldwide, including 661 employees in the United States. The Kennedys “believe that they arecalled to live out the teachings of Christ in their daily activity and witness to the truthof the Gospel by treating others in a manner that reflects their commitment to human dignity,” which includes their busines dealings. They characterize Autocam as a for-profit, secular corporation and “the business form through which [they] endeavor to live their vocation as Christians in the world.” One

1Compare Hobby Lobby Stores, Inc. v. Sebelius, --- F.3d ----, 2013 WL 3216103 (10th Cir. June 27, 2013 (holding that plaintiffs demonstrated a likelihood of success on the merits of their RFRA claims and remanding for consideration of the remaining preliminary injunction factors by the district court)with Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., --- F.3d ----, 2013 WL 3845365 (3rd Cir. July26, 2013) (affirming district court’s judgment denying a preliminary injunction on both Free Exercise Clause and RFRA grounds).

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of the ways that the Kennedys believe they manifest this commitment is by providing their employees with health coverage. Autocam is “self-insured and provide[s] health benefits to [its] em ployees by virtue of a jointly administered benefits plan which features a group insurance plan used to provide benefits to full-time employees.”
The Kennedys claimthat the same religious beliefs that motivate them to provide Autocam employees with health coverage also limit the scope of the coverage they are able to provide. They accept their chur ch’s teaching that artificial contraception and sterilization are immoral. They also believe that they become morally responsible for the use of contraception by others when they “directly pay for the purchase of drugs and services . . . in violation of [their] beliefs.”This teaching is sometimes referred to by the plaintiffs as “material cooperation.” In applying these teachings to their ownership and operation of Autocam, the Kennedys believe that they cannot direct their closely held company’s health insurance plan to “ provide, fund, or participate in health care insurance that covers artificial contraception, includi ng abortifacient contraception, sterilization, and related education and counseling.” The plaintiffs “do not seek to control what an employee or his or her dependants do with the wages and healthcare dollars” they provide because they do not consider themselves morally responsible for the choices of employees in the way plaintiffs believe they are responsible when they provide insurance coverage for services they find morally objectionable.
If required to comply with the mandate, Autocam’s health plan would have “to directly pay for t he purchase of drugs and services” that the Kennedys find objectionable. The Kennedys believe that compliance with this law would constitute impermissible “material cooperation.” But failure to comply with the mandate would lead to serious financial consequences. The ACA’s primary enforcement mechanism for bringing employers into compliance with the mandate is a “tax” on the employer when its health plan fails to meet the requirements of the ACA. 26 U.S.C. § 4980D(a). The amount of additional “tax” is “$100 for each day in the noncom pliance period with respect to each individual to whom such failure relates.” Id. § 4980D(b)(1). I f it chooses not to comply with the mandate, Autocam estimates that it will be assessed fines

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of $19 million per year. The Kennedys also lalege that directing Autocamto drop health care coverage entirely is not an option because (1) they believe their faith obligates them to provide health benefits in a manner consistent with their belief s; and (2) Autocam would still face substanti al financial penalties if it chose to drop coverage entirely because it is required to provide health insurance to its employees due to the company’s size. Id. § 4980H.
II.
On the government’s motion, we asked for briefing on a variety of jurisdictional questions. These questions fell into roughly two categories: the Article III standing of the plaintiffs to assert RFRA claims, and the effect of the Anti-Injunction Act, 26 U.S.C. § 7421(a) (“AIA”), on this suit. After a reviewof these issues, weagree with the parties that the AIA is not an obstacle to exercising jurisdiction and that Autocam has Article III standing to assert RFRA claims. As to the Kennedys, we agree with the government that they lack standing as individuals to bring RFRA claims arising from an obligation on their closely-held corporation. Accordingly, their claims must be dismissed for lack of subject-matter jurisdiction.
A.
The plaintiffs and the governm ent agree that the AIA does not preclude the plaintiffs from seeking to enjoin the ACA mandate at this time. That shared conclusion is sound. The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). This means parties seeking to challenge the “assessment or collection of [a] tax” must pay the tax a nd sue for a refund afterwards. Nat’l Fed’n of Indep. Bus. v. Sebelius , 132 S. Ct. 2566, 2582 (2012). This suit is not precluded by the AIA because it is not intended to “restrain[]” the IRS’s efforts to “assess[] or collect[]” taxes. The plaintiffs seek to enjoin a part of the coverage rqeuirements imposed by the mandate, not the IRS’s mechanism for collecting “tax” from noncompliant employers.

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Page 6

Such suits are common in other regulatory contexts. For instance, if a regulated party violates EPA regulations regarding diesel fuels, that party is assessed a “penalty” that is treated as a “tax” for AIA purposes. See 26 U.S.C. § 6720A(a), 6671( a). Nonetheless, pre-enforcement challenges to these regulations are routine and courts have never applied the AIA to bar such suits.See, e.g., Nat’l Petrochemical & Refiners Ass’n v. E.P.A., 287 F.3d 1130 (D.C. Cir. 2002) (considering the merits of an administrative challenge to an EPA regulation). Because t he plaintiffs seek to enjoin the legal obligation created by the mandate, rather than enjoin enforcement or collection of taxes by the IRS, we agree that the AIA does not bar a RFRA challenge to the mandate. See also Hobby Lobby Stores, Inc. v. Sebeliu,s--- F.3d ----, 2013 WL 3216103, at *7–8 (10th Cir. 2013).
B.
“Article III standing requires a litigant to have suffered an injury-in-fact, fairly traceable to the defendant’s allegedly unlawful conduct, and likely to be redressed by the requested relief.” Nat’l Rifle Ass’n v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997). The parties agree that Autocam has standing to challenge the m andate in its corporate capacity, and we concur in t hat conclusion. Autocam “face[s] an im minent loss of money, traceable to the contraceptive-cove rage requirement,” and it “would receive redress if a court holds the contraceptive- coverage requirement unenforceable as to them.” Hobby Lobby, 2013 WL 3216103, at *6.
By contrast, the parties do not agree regarding the standing of the Kennedys to assert a RFRA claim arising from a legal obligation on their closely held com pany. Generally, shareholders of a corporation cannotbring claims intended to redress injuries to a corporation, even when the corporation is closely held.Franchise Tax Bd. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990);Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 602–03 (6th Cir. 1988). W e agree with the governm ent that the shareholder standing rule prevents the Kennedys from bringing a RFRA claim arising from a legal obligation on Autocam.

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As a threshold matter, the Kennedys argue that the shareholder-standing rule is not applicable in RFRA cases. RFRA pr ovides that “[s]tanding to assert a claim or defense . . . shall be governed by the general rules of standing under article III of the Constitution.” 42 U.S.C. § 2000bb-1(c). The Kennedys claim that this language is sufficient to negate any standing rules beyond the irreducible constitutional minimum of injury-in-fact, traceability, and redressability required by Article III in RFRA cases.

We agree with the government that Congress did not remove prudential standing

limitations when it enacted RFRA. “Congresslegislates against the background of [the

Supreme Court’s] prudential standing doctrine, which applies unless it is expressly

negated.” Bennett v. Spear, 520 U.S. 154, 163 (1997). RFRA m akes no mention of

prudential standing and does not state that Articl e III constitutes the exclusive set of

requirements for standing in RFRA cases. At best, the statute is am biguous as to

whether prudential standing applies, and therefore, the statute does not uns eat the

presumption that Congress legislates with prudential standing rules in mind. We also

find persuasive the D.C. Circuit’s conclusion, based on its analysis of RFRA’

s

legislative history, that Congress intended thestatutory language in question to reinforce,

rather than change, the status quo for standing in Free Exercise Clause cases prior to

RFRA. Jackson v. District of Columbia, 254 F.3d 262, 266–67 (D.C. Cir. 2001).

Accordingly, we hold that Congress did not eliminate prudential-standing restrictions

when it enacted RFRA. See also Hobby Lobby, 2013 WL 3216103, at *39 (Bacharach,

J., concurring).

Because RFRA does not elim inate the shareholder-standing rule, we m ust consider whether it prevents the Kennedys fr om bringing a RFRA claim in their individual capacities. Although the Kennedys concede that the sharehoeldr standing rule would generally bar their individua l capacity claims, they argue that their claim s fall under an exception to this rule that applieswhen shareholders allege “cognizable injury . . . that is distinct from the harm suffered by [the corporati on].” Potthoff v. Morin, 245 F.3d 710, 718 (8th Cir. 2001);see also Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006) (noting that shareholders with “‘ a direct, personal interest in a cause of

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action’” may bring suit “‘even if the corporation’s rights are also implicated’” (quoting Franchise Tax Bd., 493 U.S. at 336. The Kennedys assret that if Autocamcomplies with the mandate, it will only be because they havedirected Autocam to comply by violating their religious beliefs. If they do not direct Autocam to comply with the mandate, the value of their closely held company will be significantly diminished. They claim that the harm this dilemma creates is sufficiently “distinct” from the harm to Autocam to circumvent the shareholder-standing rule.
We are not persuaded that the dilemma the Kennedys pose can be separated from the alleged harm to Autocam. “[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privil eges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). The Kennedys’ actions with respect to Autocam are not actions taken in an individual capacity, but as officers and directors of the corporation. As suc h, the Kennedys are “entrust[ed] . . . with the management of [Autocam’s] affairs,” and the law “impose[s] upon themfiduciary duties requiring the utmost good faith whenever they deal with the corporation they serve.” Thomas v. Satfield Co., 108 N.W.2d 907, 911 (Mich. 1961). “[T]he [Kennedys’] injury stems derivatively from their fiduciary duties under [Michigan] law to advance the conflicting financial and religious interests of [Autocam],” and cannot fairly be calssified as a harm distinct from t he one suffered by Autocam. See Hobby Lobby, 2013 WL 3216103, at *41 (Bacharach, J., concurring).
For much the same reasons, we rejectthe Kennedys’ argument that Autocamcan assert the Kennedys’ RFRA claims on their behalf on a “pass through” theory. The Ninth Circuit has recognized on tw o prior occasions that f or-profit corporations can assert claims under the Free Exercise Clause on be half of thei r owners when the corporations behave as “an extension of the beliefs” of the natural persons who own and direct it. Stormans, Inc. v. Selecky , 586 F.3d 1109, 1120 (9 th Cir. 2009); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619–20 (9th Cir. 1988). But this approach seems to abandon corporate law doctrine at the point it matters most. “The corporate

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form offers several advantages ‘not the least ofwhich was limitation of liability,’ but in return, the shareholder must give up some prerogatives, ‘including that of direct legal action to redress an injury to himas primary stockholder in the business.’” Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., --- F.3d ----, 2013 WL 3845365, at *6 (3d Cir. 2013) (quoting Kush v. Am. States Ins. Co., 853 F.2d 1380, 1384 (7th Cir. 1988)). We are withoutauthority to ignore the choice the Kennedys made to create a separate legal entity to operate their business.
We acknowledge that “there is a natural inclination for the owners of [closelyheld] companies to elide the distinction between them selves and the com panies they own. But there is a distinction, and it matters in important respects.” Grote v. Sebelius, 708 F.3d 850, 857 (7th Cir. 2013) (Rovner, J., dsisenting). The decision to comply with the mandate falls on Autocam, not the Kennedys. For this reason, the Kennedys cannot bring claims in their individual capacities under RFRA, nor can Autocam assert the Kennedys’ claims on their behalf . Accordingly, we will rem and the case with instructions to dismiss the Kennedys’ individual claims.
III.
A.
We now turn to the m erits of Autocam’s request for a prelim inary injunction. This court reviews the denial of a prelim inary injunction for an abuse of discretion, examining findings of fa ct for clear error and legal conclusions de novo. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 540 (6th Cir. 2007). The reviewing court looks to the same four factors the district court considered: likelihood of success on the merits, irreparable harm to the movant in the injunction’s absence, harm to others as a result of the injunction’s issuance, and the public interest. Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). “[T]he plaintiff bears the burden of establishing his entitlement to a preliminary injunction.” Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009).

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 14 of 20 Page ID#918

No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 10

Because RFRA claim s are, as a proced ural matter, very sim ilar to First Amendment claims, “the likelihood of success on the m erits often will be the determinative factor” in analyzing whe ther the district court should have issued the preliminary injunction. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 430 (2006) (“Congress’ s express decision to legislate the com pelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test, including at the prelim inary injunction stage.”). Since “likelihood of success” is a legal que stion that this court reviews de novo, the effective standard of review for a denial of a preliminary injunction in this posture is also de novo. Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012).
B.
In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause of the FirstAmendment does not enjoin legislatures from passing “a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that [a person’s] religion prescribes (or proscribes).’” 494 U.S. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment)). Congress responded toSmith by enacting RFRA, which President Clinton signed into law in 1993. In the text of the statute, Congress noted its concern that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. §2000bb(a)(2). Its stated purposes in passing RFRA were “to restore tehcompelling interest test” for free-exercise cases that prevailed prior to Smith and “to provide a claim or defense to persons whose religious exercise is substantially burdened by governm ent.” Id. § 2000bb(b)(1)–(2) (citing Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972)). To that end, RFRA requires that government action “not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Id. § 2000bb-1(a). Congress defined “exercise of religion” broadly to

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No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 11

encompass “any exercise of religion, whether or not com pelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7); see also id. § 2000bb-2(4) (incorporating § 2000cc-5(7) into RFRA).
RFRA provides that “[a] person whose religious exercise has be en burdened . . . may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a governm ent,” subject to the requirements of Article III standing. Id. § 2000bb-1(c). R FRA claims proceed in two steps. First, the plaintif f must make out a prima facie case by establishing Article III standing and showing that the law in question “would (1) substantiallyburden (2) a sincere (3) religious exercise.” O Centro Espirita, 546 U.S. at 428. If the plaintiff makes out a prima facie case, it falls to the government to “demonstrate[] that application of the burden to the person (1) is in furtherance of a com pelling governmental interest; and (2) is the least restrictive means of furthering that com pelling governmental interest.” Id. § 2000bb-1(b). The government carries the burdens of both produc tion and persuasion when it seeks to justify a substantial burden on a sincere religious practice. Id. § 2000bb-2(3).
C.
RFRA affords a cause of action to any “person whose religious exercise has been burdened.” 42 U.S.C. § 2000bb-1(c). The govermn ent argues that Autocam’s claim fails at the outset because Autocam is not a “person” capable of “religious exercise” in the sense RFRA intended. This is a matter of first impression in our court and the subject of a recent split among our sister circuits. Compare Hobby Lobby, 2013 WL 3216103, at *9 (holding “as a matter of statutory interpretation . . . Congress did not exclude forprofit corporations from RFRA’s protections”) with Conestoga, 2013 WL 3845365, at *8 (“Since [a for-profit, secular corporation] cannot exercise religion, it cannot assert a RFRA claim.”). In this case, we agree with the governm ent that Autocam is not a “person” capable of “religious exercise” as intended by RFRA and affirm the district court’s judgment on thi s basis. I n so holding, we do not reach the governm ent’s arguments that the mandate fails to impose a substantial burden on Autocam or that the mandate can be justified under RFRA’s strict scrutiny test.

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 16 of 20 Page ID#920

No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 12

Congress did not define the term“person” when it enacted RFRA, so our analysis begins with the Dictionary Act, which provides default definitions for many commonly used terms in the U.S. Code. According to the Dictionary Act, “unless the context indicates otherwise . . . the words ‘per son’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock com panies, as well as individuals.” 1 U.S.C. § 1. The relevant “context” courts should look to when construing terms found in the Dictionary Act is “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional ActsR.”owland v. Cal. Men’s Colony, Unit II Men’s Advisory Counci,l506 U.S. 194, 200 (1993). When considering RFRA, that “context” inc ludes “the body of free exercise case law that existed at the tim e of RFRA’s passage,” which Congress explicitly invoked in the statute’s text. Hobby Lobby, 2013 WL 3216103, at *45 (Briscoe, C.J., concurring in part and dissenting in part). The statute being construed only has to “indicate” a definition of the contested termcontrary to the baseline provided by the Dictionary Act, rather than “require” or “necessitate” such a result. Rowland, 506 U.S. at 200–01 (“[A] contrary ‘indication’ may raise a specter short of inanity, and with something less than syllogistic force.”).
Looking to RFRA’s relevant context, we find strong indications that Congress did not intend to include corporations prim arily organized for secular, profit- seeking purposes as “persons” under RFRA. Again, Congress’s express purpose in enacting RFRA was to restore Free Exercise Clauseclaims of the sort articulated inSherbert and Yoder, claims which were fundamentally personal. 42 U.S.C. § 2000bb(b)(1); Yoder, 406 U.S. at 207 (Am ish parents objecting to com pulsory schooling laws); Sherbert, 374 U.S. at 399–401 (Seventh-Day Adventist denied unem ployment compensation benefits after she refused her employer’s request to work on a Saturday). Congress did not intend to expand the scope of the Free Exercise Clause . See Vill. of Bensenville v. Fed. Aviation Admin ., 457 F.3d 52, 62 (D.C. Cir . 2006) (“RFRA was not m eant to ‘expand, contract or alter the ability of a clami ant to obtain relief in a manner consistent with the Suprem e Court’s fr ee exercise jurisprudence under the com pelling

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 17 of 20 Page ID#921

No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 13

governmental interest test prior toSmith.’” (quoting S. Rep. No. 103–111, at 12 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1902)).
Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the grihts the Free Exercise Clause protected prior to Smith. “[D]uring the 200-year span between the adoption of the First Aemndment and RFRA’s passage, the Supreme Court consistently treated free exercise rights as confined to individuals and non-profit religious organizations.” Hobby Lobby, 2013 W L 3216103, at *45 (B riscoe, C.J., concurring in part and dissenting in part); see also Conestoga, 2013 WL 3845365, at *5 (“[W]e are not aware of any case preceding the commencement of litigation about t he [m]andate[] in which a for-profit, secular corporation was itself found to have free exercise rights.”). While the Supreme Court has recognized the rights of sole proprietorsunder the Free Exercise Clause during this period, it has never recognized similar rights on behalf of corporations pursuing secular ends for profit. United States v. Lee, 455 U.S. 252, 254 (1982) (Amish farmer objecting to the imposition of Social Security taxes); Braunfeld v. B rown, 366 U.S. 599, 601 (1961) (Jewish m erchants objecting to laws requiring them to close their stores on Sunday). Moreover, the Supr eme Court has observed that the purpose of the Free Exercise Clause “is to secure religious liber ty in the individual by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223 (1963) (emphasis added); see also Conestoga, 2013 WL 3845365, at *5 (“[W]e simply cannot understand how a for-pro fit, secular corporation–apart from its owners–can exercise religion.”).
We recognize that many religious groups organi zed under the corporate form have made successful Free Exercise Clause or RFRA claim s, and our decision today does not question those decisions. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (plaintiff was “a not-for-profit corporation organized under Florida law”); O Ce ntro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (affirming RFRA claim by a New Mexico nonprofit corporation), aff’d, 546 U.S. 418 (2006). Furthermore, we acknowledge that our

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No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 14

sister circuits have held that on very rare occasions, a “corporate entit[y] which [is] organized expressly to pursue religious ends . . . may have cognizable religious liberties independent of the people who animate them, even if they are profit seeking.” Grote, 708 F.3d at 856 (Rovner, J., dissenting); see also Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) (granting a preliminary injunction on the basis of RFRA to a for-profit Christian bookseller that was closely held by a non-profit religious entity and several trusts, all ofwhich were organized around the same religious beliefs). But we need not “draw the conclsuion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.” Conestoga, 2013 WL 3845365, at *5. The absence of any authority for the latter proposition suggests that Congress did not adopt it when it enacted RFRA.
Our interpretation is also supported by RFRA’s legislative histor y. W hen enacting RFRA, Congress specifical ly recognized that individuals and religious organizations enjoy free exercise rights under the First Amendment and, by extension, RFRA. See, e.g., Religious Freedom Restoration Act of 1993, S. Rep. No. 103–111, at 7 (1993), reprinted in 1993 U.S.S.C.A.N. 1892, 1897 (“The extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional dem ocracy of the individual to government and to God.” (emphasis added) (quoting Church of the Lukumi Babalu Aye, 508 U.S. at 577 (Souter, J., concurring in part and concurring in the judgment))); id. at 12 (“[T]he courts have long adjudicated cases determ ining the appropriate relationship between religious organizations and governm ent.”); see also Hobby Lobby, 2013 W L 3216103, at *46 (Briscoe, C.J., concurring in part and dissenting in part) (examining RFRA’s legislative history). In contrast, the legislative history makes no mention of for-profit corporations. This is a sufficient indication that Congress did not intend the term“person” to cover entities like Autocamwhen it enacted RFRA.

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No. 12-2673

Autocam Corp., et al.v. Sebelius, et al.

Page 15

Autocam’s attempt to fill this void by relying on freedom of speech cases, most notably Citizens United v. Federal Election Commission , 558 U.S. 310 (2010), is unavailing. In Citizens United, the Court “recognized that First Amendment protection extends to corporations” and collected a significant num ber of cases recognizing t his rule. 558 U.S. at 342. But these cases all arose unde r the Free Speech Clause. Conestoga, 2013 WL 3845365, at *3. No analogous body of precedent e xists with regard to the rights of secular, for-prof it corporations under the Free Exercise Clause prior to the enactment of RFRA. The Free Exercise Clause and Free Speech Clause of the First Amendment have historically beeninterpreted in very different ways. Id. at *6 (tracing the differences in the Court’s treatment of these clauses). Therefore, the Court’s recognition of rights for corporations likeAutocam under the Free Speech Clause nearly twenty years after RFRA’s enactment does not require the conclusion that Autocam is a “person” that can exercise religion for purposes of RFRA.
We agree with the governm ent that Autocam has not carried i ts burden of demonstrating a strong likelihood of success on the merits in this action. Accordingly, we need not consider the remaining preliminary injunction factors in order to conclude that the district court’s decision to deny the relief sought by Autocam was proper.
IV.
For these reasons, we affirm the district court’s denial of Autocam’s motion for a preliminary injunction and remand the case with instructions to dismiss the Kennedys’ RFRA claims due to a lack of jurisdiction.

Case 1:12-cv-01096-RJJ Doc #61 Filed 09/17/13 Page 20 of 20 Page ID#924

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 12-2673
AUTOCAM CORPORATION; AUTOCAM MEDICAL, LLC; JOHN KENNEDY; PAUL KENNEDY; JOHN KENNEDY IV; MARGARET KENNEDY; THOMAS KENNEDY,
Plaintiffs-Appellants,

FILED
Sep 17, 2013
DEBORAH S. HUNT, Clerk

v.

KATHLEEN SEBELIUS, in her official capacity as Secretary of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; THOMAS E. PEREZ, in his official capacity as Secretary of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB LEW, in his official capacity as Secretary of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants-Appellees.

Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s denial of Autocam’s motion for preliminary injunction is AFFIRMED, and the case is REMANDED to the district court with instructions to dismiss the Kennedys’ Religious Freedom Restoration Act claims due to a lack of jurisdiction.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 1:12-cv-01096-RJJ Doc #63 Filed 09/27/13 Page 1 of 2 Page ID#926

IN TI IE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al, Plaintiffs,
vs. KATHLEEN SEBELIUS, et al,
Defendants.

Case No. 12-cv-01096 Honorable Robert J. Jonker

*** ORAL ARGUMENT REQUESTED *** MOTION TO STAY CASE
1. This case presents matters of exceptional importance. Similar cases are being litigated around the country; a circuit split already exists; and the United States Solicitor General has petitioned for certiorari in a similar case, labeling the question presented as one of exceptional importance.
2. Given the circuit split and the petition from the Solicitor General, it is highly likely that the issues before the Court will be resolved, in one fashion or another, by the United States Supreme Court.
3. The Plaintiffs here are preparing to petition for certiorari to the United States Supreme Court and have already moved for a stay of the Mandate in the United States Court of Appeals for the Sixth Circuit. See Fed. R. App. P. 41 (d)(2).
4. Until the Sixth Circuit releases the mandate, this Court lacks jurisdiction to decide issues related to those on appeal. See United States v. Campbell, 168 F. 3d 263, 266 n.3 (6th Cir. 1999) (quotation omitted).

Case 1:12-cv-01096-RJJ Doc #63 Filed 09/27/13 Page 2 of 2 Page ID#927

5.

Even i f the Sixth Circuit issues the Mandate, this Court should stay this case until

receiving guidance from the United States Supreme Court.

6. For the reasons stated in the response to this Court's show cause order, filed

simultaneously herewith, Plaintiffs request that the Court stay this case until the Supreme Court

disposes of the Plaintiffs' petition for certiorari.

7. Statement of Conferral: Plaintiffs' Counsel has conferred with opposing counsel

and is authorized to state that the Defendants' take no position on this motion.

Dated: September 27,2013

Respectfully submitted,

Patrick T. Gillen (P#47456) Fidelis Center for Law and Policy CatholicVote Legal Defense Fund Attorney for Plaintiffs 1025 Commons Circle Naples, FL 34119 (734) 355-4728 ptgillen@avemarialaw.edu

/s/ Jason C. Miller Jason C. Miller (P#76236) MILLER JOHNSON Attorneys for Plaintiffs 250 Monroe Avenue, N.W., Suite 800 PO Box 306 Grand Rapids, Michigan 49501-0306 (616) 831-1700 millerj @millerj ohnson. com
Peter Breen* Thomas More Society Attorneys for Plaintiffs 29 South LaSalle St. - Suite 440 Chicago, IL 60603 Tel. 312-782-1680 pbreen@thomasmoresociety.org * Application for admission to be filed.

MJ DMS 25745397v 1

 
 Case 1:12-cv-01096-RJJ Doc #65 Filed 09/30/13 Page 1 of 3 Page ID#936

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al.,

Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

CASE NO. 1:12-CV-1096 HON. ROBERT J. JONKER

Defendants. __________________________________/

ORDER

This matter is before the Court on the Defendants’ Motion to Dismiss (docket # 49). The

motion has been fully briefed. In addition, on September 17, 2013, the United States Court of

Appeals issued its Opinion in Autocam Corporation v. Sebelius, __ F.3d __, Case No. 12-2673 (6th

Cir. Sept. 17, 2013). The Opinion affirmed this Court’s denial of Plaintiffs’ Motion for a

Preliminary Injunction in that case on grounds that would seem to require immediate dismissal of

the claims of the individual plaintiffs in this case for lack of standing, and to provide a basis for

granting the Defendants’ pending Motion to Dismiss all of the counts in this case asserted by the

corporate Plaintiffs. The Court invited the parties to show cause (docket # 62) why the Court should

not apply the reasoning of the Court in Autocam by dismissing the claims of the individual Plaintiffs

in this case for lack of standing, and by granting the Defendants’ Motion to Dismiss all claims

Case 1:12-cv-01096-RJJ Doc #65 Filed 09/30/13 Page 2 of 3 Page ID#937
asserted by the corporate Plaintiffs.1 Defendants have not responded. Plaintiffs have responded with a Motion to Stay the Case (docket # 63).
Plaintiffs assert that because the mandate in the Autocam decision has not yet issued, the Court lacks jurisdiction to consider the substantive merits of the case. Generally, “an effective notice of appeal divests the Court of jurisdiction over the matter forming the basis for the appeal.” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F2d. 585, 588 (6th Cir. 1987). Here, the matter forming the basis for the appeal was the Court’s denial of Plaintiffs’ motion for preliminary injunction. Until the mandate issues, that divests the Court of jurisdiction over the preliminary injunction motion. “However, ‘an appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits.’” Zundel v. Holder, 687 F.3d 271, 282 (6th Cir. 2012) (quoting Moltan v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995)). Indeed, soon after Plaintiffs filed their interlocutory appeal in this case, the parties tendered a joint motion to stay proceedings in this Court (docket # 46), apparently in recognition that without a stay order, ordinary case management deadlines would remain in place during the pendency of the interlocutory appeal.
Plaintiffs also contend that the Court should stay the case on prudential grounds because the Supreme Court is likely to resolve a Circuit split on issues presented in this case. The Court agrees that the Supreme Court is likely to act, but that does not persuade the Court that it should stay these proceedings, in light of the clear guidance from our Circuit on the merits of the case. When the
1Plaintiffs earlier sought dismissal without prejudice of their Counts VI (First Amendment – Expressive Association) and Counts IX-XII (Administrative Procedures Act) under FED. R. CIV. P. 41(a) (docket # 48).
2

Case 1:12-cv-01096-RJJ Doc #65 Filed 09/30/13 Page 3 of 3 Page ID#938

Supreme Court rules – assuming it does, as seems likely – the ordinary judicial process will provide an appropriate pathway for any necessary relief.
For these reasons, the Court concludes that dismissal of the case is appropriate. ACCORDINGLY, IT IS ORDERED: 1. Plaintiffs’ Counts VI and IX-XII are DISMISSED WITHOUT PREJUDICE under
FED. R. CIV. P. 41(a). 2. Plaintiffs’ Motion to Stay (docket # 63) is DENIED. 3. The claims of the individual Plaintiffs in Counts I-V, VII, and VIII are DISMISSED
for lack of standing under the reasoning of the Court of Appeals in Autocam. 4. Defendants’ Motion to Dismiss (docket # 49) is GRANTED as to the corporate
Plaintiffs’ claims in Counts I-V, VII, and VIII based on the reasoning of the Court of Appeals in Autocam. Judgment will enter accordingly.

Dated: September 30, 2013

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

3

 
 Case 1:12-cv-01096-RJJ Doc #66 Filed 09/30/13 Page 1 of 1 Page ID#939

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AUTOCAM CORPORATION, et al.,

Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

CASE NO. 1:12-CV-1096 HON. ROBERT J. JONKER

Defendants. __________________________________/

JUDGMENT

Based on the Order of the Court (docket # 65), Judgment is entered in favor of Defendants

and against Plaintiffs Autocam Corporation and Autocam Medical, LLC, dismissing Counts I - V,

VII, and VIII for failure to state a claim, and Counts VI and IX-XII without prejudice under Rule

41(a). Judgment is further entered dismissing the claims of the individual Plaintiffs in Counts I-V,

VII, and VIII for lack of standing.

Dated: September 30, 2013

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

 
 Case 1:12-cv-01096-RJJ Doc #69 Filed 10/22/13 Page 1 of 1 Page ID#945

Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

October 17, 2013

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Sixth Circuit 524 Potter Stewart Courthouse 100 East Fifth Street Cincinnati, OH 45202

FILED
Oct 21, 2013
DEBORAH S. HUNT, Clerk

Re: Autocam Corporation, et al. v. Kathleen Sebelius, Secretary of Health and Human Services, et al. No. 13-482 (Your No. 12-2673)

Dear Clerk:
The petition for a writ of certiorari in the above entitled case was filed on October 15, 2013 and placed on the docket October 17, 2013 as No. 13-482.

Sincerely,
Scott S. Harris, Clerk
by
Jacob C. Travers Case Analyst

 
 Case 1:12-cv-01096-RJJ Doc #76 Filed 01/05/15 Page 1 of 2 Page ID#1058

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

____________________________________

)

AUTOCAM CORPORATION, et al.

)

)

Plaintiffs,

)

)

v.

)

Case No. 1:12-cv-01096-RJJ

)

SYLVIA M. BURWELL, et al.

)

)

Defendants.

)

____________________________________)

[PROPOSED] 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, 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 plaintiff Autocam Medical, LLC, to

provide its employees with health coverage for contraceptive methods,

sterilization procedures, and related patient education and counseling to which

plaintiff objects 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

Case 1:12-cv-01096-RJJ Doc #76 Filed 01/05/15 Page 2 of 2 Page ID#1059

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

Contraceptive Coverage Requirement

against plaintiff Autocam Medical, LLC, its employee health plan(s), the group health coverage

provided in connection with such plan(s), and/or plaintiff’s health insurance issuers and/or third-

party administrators with respect to plaintiff’s health plan(s); and it is further

ORDERED that judgment is entered in favor of plaintiff and against defendants on

plaintiff’s claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and

it is further

ORDERED that all other claims against Defendants are DISMISSED; and it is further

ORDERED that pursuant to Local Civ. R. 54.1, the Parties will meet and confer to reach

agreement on attorneys’ fees and costs. The Parties will file a joint status report, including a

recommendation for further proceedings, by no later than January 30, 2014. If there is no

resolution of the attorneys’ fees and costs matter, plaintiff may file a motion for attorneys’ fees

and costs within thirty days of January 30, 2014, pursuant to Fed.R.Civ.P. 54; and it is further

ORDERED that this Injunction and Judgment does not apply with respect to any changes

in statute or regulation that are enacted or promulgated after this date, and nothing herein

prevents plaintiffs from filing a new civil action to challenge any such future changes.

Date: _J_a_n_u_a_ry__5_, 2_0_1_5_

_/_s_/ _R_o_b_e_rt_J_._J_o_n_ke_r______________ ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:12-cv-01096-RJJ

Autocam Corporation et al v. Sebelius et al Assigned to: Chief Judge Robert J. Jonker Case in other court: the Sixth Circuit, 12-02673
the Sixth Circuit, 13-02316 U.S. Supreme Court, 13-00482 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/08/2012 Date Terminated: 01/05/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

plaintiff Autocam Corporation

represented by Patrick T. Gillen Fidelis Center for Law and Policy 1025 Commons Center Naples, FL 34119 (734) 355-4728 Email: ptg.gillen@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason C. Miller Miller Johnson PLC (Grand Rapids) 250 Monroe Ave., NW, Ste. 800 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1794 Email: millerj@millerjohnson.com ATTORNEY TO BE NOTICED

plaintiff Autocam Medical, LLC

represented by Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED

plaintiff

John Kennedy
plaintiff Paul Kennedy
plaintiff John Kennedy, IV
plaintiff Margaret Kennedy
plaintiff Thomas Kennedy

represented by Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick T. Gillen (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jason C. Miller (See above for address) ATTORNEY TO BE NOTICED

V. defendant Kathleen Sebelius Secretary of the United States Department of Health and Human Services
defendant

represented by Michelle Bennett U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20530 (202) 305-8902 Email: Michelle.Bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick U.S. Department of Justice (CIV-Fed Programs Branch) 20 Massachusetts Ave., NW, Rm. 7214 Washington, DC 20530 (202) 305-8573 Email: benjamin.l.berwick@usdoj.gov ATTORNEY TO BE NOTICED
Jacek Pruski U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20530 (202) 616-2035 Email: jacek.pruski@usdoj.gov ATTORNEY TO BE NOTICED

United States Department of Health and Human Services
defendant Hilda L. Solis named as Hilda Solis; Secretary of the United States Department of Labor
defendant United States Department of Labor
defendant

represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick (See above for address) ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick (See above for address) ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick (See above for address) ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Timothy Geithner Secretary of the United States Department of the Treasury
defendant United States Department of Treasury
amicus American Civil Liberties Union

represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick (See above for address) ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin L. Berwick (See above for address) ATTORNEY TO BE NOTICED
Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
represented by Brigitte Adrienne Amiri American Civil Liberties Union 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2633 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg ACLU Fund of Michigan (Detroit) 2966 Woodward Ave. Detroit, MI 48201-3035 (313) 578-6814 Email: msteinberg@aclumich.org LEAD ATTORNEY

amicus American Civil Liberties Union Fund of Michigan
amicus Bill Schuette
amicus Life Legal Defense Foundation

ATTORNEY TO BE NOTICED
Miriam J. Aukerman ACLU of Michigan 1514 Wealthy St., SE, Ste. 242 Grand Rapids, MI 49506 (616) 301-0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED
represented by Brigitte Adrienne Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by B. Eric Restuccia MI Dept Attorney General (Appellate) Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 373-4875 Email: restucciae@michigan.gov ATTORNEY TO BE NOTICED
represented by Michael S. McElwee Varnum Riddering Schmidt & Howlett LLP (Grand Rapids) Bridgewater Place 333 Bridge St., NW

amicus Bioethics Defense Fund

P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6827 Email: msmcelwee@varnumlaw.com ATTORNEY TO BE NOTICED
represented by Michael S. McElwee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/08/2012
10/08/2012
10/08/2012 10/09/2012 10/09/2012
10/09/2012 10/09/2012

# Docket Text
1 COMPLAINT (Verified Complaint) against All Defendants filed by Margaret Kennedy, John Kennedy, Thomas Kennedy, Autocam Medical, LLC, Autocam Corporation, Paul Kennedy, John Kennedy, IV(Miller, Jason) (Entered: 10/08/2012)
FILING FEE PAID re 1 by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, Margaret Kennedy, Paul Kennedy, Thomas Kennedy, John Kennedy, IV in the amount of $350, receipt number 0646-2380599 (Miller, Jason) (Entered: 10/08/2012)
2 PROPOSED SUMMONS to be issued re 1 (Miller, Jason) (Entered: 10/08/2012)
3 NOTICE that this case has been assigned to Judge Robert J. Jonker ; with NOTICE OF DEFICIENCY re corporate disclosure statement (gjf) (Entered: 10/09/2012)
SUMMONS NOT ISSUED as to 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 ; summons for each defendant not provided (gjf) (Entered: 10/09/2012)
4 PROPOSED SUMMONS to be issued re 1 (Miller, Jason) (Entered: 10/09/2012)
5 CORPORATE DISCLOSURE STATEMENT by Autocam Corporation (Miller, Jason) Modified text on 10/10/2012 (gjf). (Entered: 10/09/2012)

10/09/2012 10/10/2012
10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/10/2012 10/11/2012 10/11/2012

6 CORPORATE DISCLOSURE STATEMENT by Autocam Medical, LLC identifying Corporate Parent Autocam Medical Device Holdings, LLC, Other Affiliate Autocam Corporation for Autocam Medical, LLC (Miller, Jason) (Entered: 10/09/2012)
SUMMONS NOT ISSUED as to 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 ; summons for Solis contained incorrect spelling and summons for U.S. Attorney General not submitted (gjf) (Entered: 10/10/2012)
7 PROPOSED SUMMONS to be issued re 1 (Miller, Jason) (Entered: 10/10/2012)
SUMMONS ISSUED as to 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, U.S. Attorney and U.S. Attorney General (gjf) (Entered: 10/10/2012)
8 MOTION for preliminary injunction by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy; (Miller, Jason) (Entered: 10/10/2012)
9 BRIEF in support of MOTION for preliminary injunction 8 filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Exhibit A)(Miller, Jason) (Entered: 10/10/2012)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Jacek Pruski 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 (Pruski, Jacek) (Entered: 10/10/2012)
10 MOTION for order Setting Brief Telephonic Status Conference by 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; (Pruski, Jacek) (Entered: 10/11/2012)
11 RESPONSE TO MOTION for order Setting Brief Telephonic Status Conference 10 filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) (Entered: 10/11/2012)

10/12/2012 11/07/2012
11/08/2012 11/09/2012 11/09/2012 11/09/2012 11/09/2012 11/14/2012
11/14/2012 11/14/2012

12 ORDER denying 8 motion for preliminary injunction; dismissing as moot 10 motion for status conference; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 10/12/2012)
13 UNOPPOSED MOTION for leave to file excess pages by 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; (Attachments: # 1 Exhibit Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction, # 2 Proposed Order)(Pruski, Jacek) (Entered: 11/07/2012)
14 MOTION AND BRIEF for amicus curiae status by movant ACLU and ACLU Fund of Michigan (Attachments: # 1 Exhibit A)(Aukerman, Miriam) Modified text and add filer on 11/9/2012 (gjf). (Entered: 11/08/2012)
15 (DISREGARD) ORDER granting 13 motion for leave to file excess pages ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) Modified on 11/9/2012 per instruction from RJJ chambers (gjf). (Entered: 11/09/2012)
16 ORDER granting 13 motion for leave to file excess pages ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 11/09/2012)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Michael J. Steinberg on behalf of movant American Civil Liberties Union Fund of Michigan (Steinberg, Michael) (Entered: 11/09/2012)
17 RESPONSE in opposition to MOTION for preliminary injunction 8 filed 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 (gjf) (Entered: 11/13/2012)
18 UNOPPOSED MOTION for leave to file Reply Brief in Excess of 10 Pages by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy; (Attachments: # 1 Exhibit A)(Miller, Jason) (Entered: 11/14/2012)
19 RESPONSE TO UNOPPOSED MOTION for leave to file excess pages 13 filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) (Entered: 11/14/2012)
20 ORDER granting 18 motion for leave to file reply brief in excess of 10 pages ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 11/14/2012)

11/14/2012 11/14/2012 11/14/2012 11/14/2012 11/15/2012 11/21/2012 12/04/2012 12/04/2012
12/10/2012 12/12/2012

21 ORDER granting 14 motion for amicus curiae status ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 11/14/2012)
22 NOTICE OF MOTION HEARING regarding document number 8 : motion hearing is set for 12/17/2012 at 03:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 11/14/2012)
24 REPLY to response to motion 8 with exhibits 1 & 2 filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (gjf) (Entered: 11/15/2012)
25 RESPONSE in opposition to MOTION for preliminary injunction 8 (amicus curiae brief) filed by American Civil Liberties Union, American Civil Liberties Union Fund of Michigan (gjf) (Entered: 11/15/2012)
23 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 12/17/2012 at 3:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; status report due by 12/11/2012 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 11/15/2012)
26 MOTION for leave to file Attorney General Bill Schuette's Amicus Brief in Support of Plaintiffs' Motion for Preliminary Injunction by amicus Bill Schuette; (Attachments: # 1 Attorney General Bill Schuette's Amicus Brief in Support of Plaintiff's Motion for Preliminary Injunction)(Restuccia, B.) (Entered: 11/21/2012)
27 ORDER re 8 ; additional issues parties should be prepared to address at the hearing set for 12/17/2012 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 12/04/2012)
28 CONSENT MOTION for extension of time to file response/reply re 1 Plaintiffs' Complaint by 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; (Attachments: # 1 Proposed Order)(Pruski, Jacek) (Entered: 12/04/2012)
29 NOTICE re 8 Supplemental Authority Related to Motion for Preliminary Injunction by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Miller, Jason) (Entered: 12/10/2012)
30 JOINT STATUS REPORT (Miller, Jason) (Entered: 12/12/2012)

12/12/2012 12/13/2012 12/13/2012 12/13/2012 12/14/2012 12/17/2012 12/17/2012 12/19/2012

31 MOTION for leave to file a Brief Amicus Curiae In Support of Plaintiffs' Motion for Preliminary Injunction with brief in support by amicus Life Legal Defense Foundation and Bioethics Defense Fund; (Attachments: # 1 Amicus Brief)(McElwee, Michael) Modified text and add filer on 12/13/2012 (gjf). (Entered: 12/12/2012)
32 ORDER granting 26 motion for leave to file; granting 28 motion for extension of time to file response/reply ; granting 31 motion for leave to file ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 12/13/2012)
33 RESPONSE in support of MOTION for preliminary injunction 8 (document named as amicus brief in support of motion for preliminary injunction) filed by Bill Schuette (gjf) (Entered: 12/14/2012)
34 RESPONSE in support of MOTION for preliminary injunction 8 (document named as amicus curiae brief in support of motion for preliminary injunction) filed by Bioethics Defense Fund, Life Legal Defense Foundation (gjf) (Entered: 12/14/2012)
35 NOTICE re 29 Response to Plaintiffs' Supplemental Authority by 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 (Attachments: # 1 Exhibit Order in Korte v. HHS)(Pruski, Jacek) (Entered: 12/14/2012)
36 BRIEF in support of MOTION for preliminary injunction 8 Plaintiffs' Supplemental Brief on Anti-Injuction Act Supporting Motion for Preliminary Injunction filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Jason) (Entered: 12/17/2012)
37 MINUTES of motion hearing re 8 MOTION for preliminary injunction filed by Thomas Kennedy, John Kennedy, IV, Autocam Medical Device Holdings, LLC, Autocam Corporation, Autocam Medical, LLC, Margaret Kennedy, Paul Kennedy, John Kennedy held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, ymc) (Entered: 12/18/2012)
38 TRANSCRIPT of Plaintiffs' Motion for Preliminary Injunction held 12/17/2012 before Judge Robert J. Jonker; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no

12/21/2012 12/21/2012 12/21/2012 12/21/2012
12/24/2012 12/26/2012 12/26/2012 12/28/2012

Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 3/19/2013 ; redaction request due 1/9/2013 (Court Reporter: Trexler, Glenda (517)819-0396) (Entered: 12/19/2012)
39 NOTICE re 8 Notice of Supplemental Authority by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Exhibit 1)(Miller, Jason) (Entered: 12/21/2012)
40 SUPPLEMENTAL BRIEF on harm supporting MOTION for preliminary injunction 8 filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Exhibit A)(Miller, Jason) Modified text on 12/26/2012 (gjf). (Entered: 12/21/2012)
(NON-DOCUMENT) ATTORNEY APPEARANCE of 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 (Bennett, Michelle) (Entered: 12/21/2012)
41 SUPPLEMENTAL BRIEF re MOTION for preliminary injunction 8 by 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 (Attachments: # 1 Exhibit 1: Tenth Circuit Hobby Lobby Decision)(Pruski, Jacek) Modified text on 12/26/2012 (gjf). (Entered: 12/21/2012)
42 OPINION AND ORDER denying 8 motion for preliminary injunction ; signed by Judge Robert J. Jonker (Jonker, Robert) (Entered: 12/24/2012)
43 NOTICE OF APPEAL re 42 by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) (Entered: 12/26/2012)
APPEAL FEE PAID re 43 by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy in the amount of $455, receipt number 0646-2449176 (Miller, Jason) (Entered: 12/26/2012)
44 ORDER of USCA re appeal 43 ; denying motion for miscellaneous relief; granting motion expedite case; The clerk shall expedite this appeal for briefing and submission ; no mandate to issue (mkc) (Entered: 12/31/2012)

12/31/2012 12/31/2012 01/03/2013
01/16/2013 02/05/2013 02/15/2013 02/15/2013
02/22/2013 03/05/2013
03/18/2013

45 ORDER of USCA re appeal 43 ; denying motion to reconsider previous order (mkc) (Entered: 01/02/2013)
CASE NUMBER 12-2673 assigned by the Sixth Circuit to appeal 43 (mkc) (Entered: 01/14/2013)
46 JOINT MOTION to stay district court proceedings pending appeal by 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; (Attachments: # 1 Proposed Order)(Pruski, Jacek) (Entered: 01/03/2013)
47 ORDER denying 46 motion to stay; Rather than stay proceedings entirely, the Court will extend deadline for Defendants to respond to Plaintiffs' complaint to 2/15/2013 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 01/16/2013)
48 NOTICE of Dismissal of Plaintiff's Counts VI and IX - XII by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) (Entered: 02/05/2013)
49 MOTION to dismiss for failure to state a claim by 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; (Pruski, Jacek) (Entered: 02/15/2013)
50 BRIEF in support of MOTION to dismiss for failure to state a claim 49 filed 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 (Attachments: # 1 Exhibit 1 - Conestoga Third Circuit Order)(Pruski, Jacek) Modified text on 2/19/2013 (gjf). (Entered: 02/15/2013)
51 ORDER of USCA re appeal 43 ; ordered that the motion of amicus Family Trust Foundation of Kentucky to withdraw motion to file amicus brief is granted (gjf) (Entered: 02/22/2013)
52 MOTION for leave to file Motion for Leave to Serve First Written Discovery on Defendants by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy; (Attachments: # 1 Exhibit 1)(Miller, Jason) (Entered: 03/05/2013)
53 RESPONSE TO MOTION to dismiss for failure to state a claim 49 (document named as Brief Opposing Motion to Dismiss) filed by Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) Modified text on 3/19/2013 (gjf). (Entered: 03/18/2013)

03/19/2013
03/22/2013 03/28/2013 04/01/2013 04/01/2013 04/03/2013 05/03/2013 09/17/2013
09/18/2013 09/27/2013 09/27/2013
09/30/2013

54 RESPONSE in opposition to MOTION for leave to file Motion for Leave to Serve First Written Discovery on Defendants 52 filed 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 (Pruski, Jacek) (Entered: 03/19/2013)
55 ORDER of USCA re appeal 43 ; granting motion to withdraw motion to file an amici brief (gjf) (Entered: 03/22/2013)
56 ORDER of USCA re appeal 43 ; granting motion for an extension to file amici brief (gjf) (Entered: 03/28/2013)
57 ORDER of USCA re appeal 43 ;amici's motion to file a substitute brief is granted (gjf) (Entered: 04/01/2013)
58 REPLY to response to motion 49 to dismiss filed 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 (Pruski, Jacek) (Entered: 04/01/2013)
59 ORDER of USCA re appeal 43 granting motion to change argument date; Oral argument will be set for 06/11/13 with the time and place to be determined (jem) (Entered: 04/04/2013)
60 ORDER of USCA re appeal 43 ; ordered that the motion to file a supplemental brief is granted (gjf) (Entered: 05/03/2013)
61 OPINION AND JUDGMENT of USCA re appeal 43 ; ordered that the district court's denial of Autocam's motion for preliminary injunction is affirmed and the case is remanded to the district court with instructions to dismiss the Kennedys' Religious Freedom Restoration Act claims due to a lack of jurisdiction; mandate to issue (gjf) Modified text on 9/17/2013 (gjf). Modified text on 9/19/2013 (gjf). (Entered: 09/17/2013)
62 ORDER: parties may show cause by September 27, 2013 and motion for leave to serve written discovery (#52) is denied ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 09/18/2013)
63 MOTION to stay Case by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy; (Miller, Jason) (Entered: 09/27/2013)
64 NOTICE re 62 Response to Order to Show Cause by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Attachments: # 1 Attachment U.S. Court of Appeals for the 10th Circuit Order)(Miller, Jason) (Entered: 09/27/2013)
65 ORDER: Plaintiffs' Counts VI and IX-XII are DISMISSED WITHOUT PREJUDICE; Plaintiffs' Motion to Stay 63 is DENIED; claims of the

09/30/2013
10/02/2013 10/02/2013 10/04/2013 10/09/2013 10/22/2013 07/01/2014
08/04/2014 12/02/2014 12/11/2014

individual Plaintiffs in Counts I-V, VII, and VIII are DISMISSED; Defendants' Motion to Dismiss 49 is GRANTED as to the corporate Plaintiffs' claims in Counts I-V, VII, and VIII; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 09/30/2013)
66 JUDGMENT in favor of Defendants and against Plaintiffs Autocam Corporation and Autocam Medical, LLC, dismissing Counts I - V, VII, and VIII for failure to state a claim, and Counts VI and IX-XII without prejudice under Rule 41(a). Judgment is further entered dismissing the claims of the individual Plaintiffs in Counts I-V, VII, and VIII for lack of standing ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 09/30/2013)
67 NOTICE OF APPEAL re 66 by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy (Miller, Jason) (Entered: 10/02/2013)
APPEAL FEE PAID re 67 by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy in the amount of $455, receipt number 0646-2699370 (Miller, Jason) (Entered: 10/02/2013)
CASE NUMBER 13-2316 assigned by the Sixth Circuit to appeal 67 (mkc) (Entered: 10/15/2013)
68 ORDER of USCA re appeal 43 staying the mandate to allow time to file a petition for a writ of certiorari ; mandate to issue (ald) Modified text on 7/2/2014 (jlg). (Entered: 10/09/2013)
69 LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed by plaintiff Autocam Corporation on 10/15/2013 and assigned case number 13-482 re Notice of Appeal 43 (gjf) (Entered: 10/22/2013)
70 LETTER from Supreme Court of the United States that the petition for writ of certiorari is granted; the judgment is vacated and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____ (2014) re Notice of Appeal 43 (jlg) (Entered: 07/02/2014)
71 SUPREME COURT JUDGMENT re appeal 67 The judgment of the above court is vacated with costs, and the case is remanded to the United States Court of Appeals for the Sixth Circuit (dfw) (Entered: 08/05/2014)
72 ORDER of USCA re appeal 67 granting motion to withdraw as counsel by Jason Charles Miller (jlg) (Entered: 12/02/2014)
73 ORDER of USCA re appeal 67 , 43 granting motion to consolidate, granting motion to withdraw as counsel and granting motion to remand

12/18/2014 12/19/2014
01/05/2015 01/29/2015
01/30/2015 02/25/2015
04/17/2015

case; all other motions are denied as moot ; mandate to issue (ns) (Entered: 12/18/2014)
74 MANDATE of USCA re appeal 67 , 43 (ns) (Entered: 12/19/2014)
75 MOTION for permanent injunction by plaintiffs Autocam Corporation, Autocam Medical, LLC, John Kennedy, John Kennedy, IV, Margaret Kennedy, Paul Kennedy, Thomas Kennedy; (Attachments: # 1 Proposed Order)(Gillen, Patrick) (Entered: 12/19/2014)
76 ORDER granting 75 Motion for Permanent Injunction and Judgment ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 01/05/2015)
77 JOINT STATUS REPORT submitted for filing by 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 (Pruski, Jacek) (Entered: 01/29/2015)
78 ORDER directing another Joint Status Report by February 27, 2015 and issuing a May 27, 2015 filing deadline ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 01/30/2015)
79 JOINT STATUS REPORT submitted for filing by 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 (Pruski, Jacek) (Entered: 02/25/2015)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Benjamin L. Berwick 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 (Berwick, Benjamin) (Entered: 04/17/2015)

 
 12-2673 Docket

2/19/13 3:33 PM

General Docket United States Court of Appeals for the Sixth Circuit

Court of Appeals Docket #: 12-2673 Nature of Suit: 3440 Civil Rights: Other Autocam Corporation, et al v. Kathleen Sebelius, et al Appeal From: Western District of Michigan at Grand Rapids Fee Status: fee paid

Docketed: 12/26/2012

Case Type Information: 1) Civil 2) Private 3) Federal Question

Originating Court Information: District: 0646-1 : 1:12-cv-01096 Trial Judge: Robert J. Jonker, U.S. District Judge Date Filed: 10/08/2012 Date Order/Judgment: 12/24/2012

Date NOA Filed: 12/26/2012

Prior Cases: None

Current Cases: None

AUTOCAM CORPORATION Plaintiff - Appellant
AUTOCAM MEDICAL, LLC Plaintiff - Appellant
file:///Users/wyattfore/Desktop/06_12-2673_Docket.htm

Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained] Fidelis Center for Law and Policy 1025 Commons Circle Naples, FL 34119
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] Miller Johnson Firm: 616-831-1700 250 Monroe Avenue, N.W. Suite 800 Grand Rapids, MI 49503
Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained]

Page 1 of 14

12-2673 Docket
JOHN KENNEDY Plaintiff - Appellant
PAUL KENNEDY Plaintiff - Appellant
JOHN KENNEDY, IV Plaintiff - Appellant
MARGARET KENNEDY Plaintiff - Appellant
THOMAS KENNEDY
file:///Users/wyattfore/Desktop/06_12-2673_Docket.htm

(see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)
Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained] (see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)
Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained] (see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)
Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained] (see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)
Patrick Thomas Gillen Direct: 734-355-4728 [COR LD NTC Retained] (see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)
Patrick Thomas Gillen

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Plaintiff - Appellant

v.

Direct: 734-355-4728 [COR LD NTC Retained] (see above)
Jason Charles Miller Direct: 616-831-1700 [COR NTC Retained] (see above)

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services
Defendant - Appellee

Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] U.S. Department of Justice Civil Division, Appellate Section Room 7235 Firm: 202-514-3547 950 Pennsylvania Avenue, N.W. Washington, DC 20530

Mark B. Stern Direct: 202-514-5089 [COR NTC Government] U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
Defendant - Appellee

Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] (see above)

Mark B. Stern Direct: 202-514-5089 [COR NTC Government] (see above)

HILDA L. SOLIS, names as Hilda Solis; Secretary of the United States Department of Labor
Defendant - Appellee

Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] (see above)

Mark B. Stern Direct: 202-514-5089 [COR NTC Government]

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UNITED STATES DEPARTMENT OF LABOR Defendant - Appellee
TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury
Defendant - Appellee
UNITED STATES DEPARTMENT OF TREASURY
Defendant - Appellee
------------------------------

(see above)
Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] (see above)
Mark B. Stern Direct: 202-514-5089 [COR NTC Government] (see above)
Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] (see above)
Mark B. Stern Direct: 202-514-5089 [COR NTC Government] (see above)
Alisa B. Klein Direct: 202-514-1597 [COR LD NTC Government] (see above)
Mark B. Stern Direct: 202-514-5089 [COR NTC Government] (see above)

2/19/13 3:33 PM

LIBERTY, LIFE AND LAW FOUNDATION Amicus Curiae
STATE OF MICHIGAN Amicus Curiae

Deborah Jane Dewart Direct: 910-326-4554 [COR LD NTC Retained] Law Office 620 E. Sabiston Drive Swansboro, NC 28539
Bernard Eric Restuccia, Assistant Attorney General [COR LD NTC Retained] Office of the Michigan Attorney General Appellate Division P.O. Box 30217 Lansing, MI 48909

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John J. Bursch [NTC Retained] Office of the Michigan Attorney General 525 W. Ottawa Street 7th Floor Law Building Lansing, MI 48909

STATE OF OHIO Amicus Curiae

Frederick Dickson Nelson Direct: 614-728-4947 [COR LD NTC Retained] Office of the Ohio Attorney General Firm: 614-466-8980 30 E. Broad Street 17th Floor Columbus, OH 43215

ASSOCIATION OF GOSPEL RESCUE MISSIONS Kimberlee Wood Colby

Amicus Curiae

Direct: 703-642-1070

[COR LD NTC Retained]

Center for Law & Religious Freedom

Firm: 703-642-1070

8001 Braddock Road

Suite 302

Springfield, VA 22151

PRISON FELLOWSHIP MINISTRIES Amicus Curiae

Kimberlee Wood Colby Direct: 703-642-1070 [COR LD NTC Retained] (see above)

ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL
Amicus Curiae

Kimberlee Wood Colby Direct: 703-642-1070 [COR LD NTC Retained] (see above)

NATIONAL ASSOCIATION OF EVANGELICALS ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Amicus Curiae

Kimberlee Wood Colby Direct: 703-642-1070 [COR LD NTC Retained] (see above)

PATRICK HENRY COLLEGE Amicus Curiae

Kimberlee Wood Colby Direct: 703-642-1070 [COR LD NTC Retained] (see above)

INSTITUTIONAL RELIGIOUS FREEDOM

Kimberlee Wood Colby

ALLIANCE AND CHRISTIAN LEGAL SOCIETY Direct: 703-642-1070

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Amicus Curiae

[COR LD NTC Retained] (see above)

AMERICAN CENTER FOR LAW & JUSTICE Amicus Curiae

Jay A. Sekulow Direct: 757-226-2489 [COR LD NTC Retained] American Center for Law & Justice 1000 Regent University Drive Robertson Hall Suite 422 Virginia Beach, VA 23467-0000

ASSOCIATION OF AMERICAN PHYSICIANS & Mailee Rebecca Smith

SURGEONS

Direct: 202-289-1478

Amicus Curiae

[COR LD NTC Retained]

Americans United for Life

655 Fifteenth Street, N.W.

Suite 410

Washington, DC 20005

AMERICAN ASSOCIATION OF PRO LIFE OBSTETRICIANS & GYNECOLOGISTS
Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

CHRISTIAN MEDICAL ASSOCIATION Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

CATHOLIC MEDICAL ASSOCIATION Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

NATIONAL CATHOLIC BIOETHICS CENTER Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

PHYCICIANS FOR LIFE Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

NATIONAL ASSOCIATION OF PRO LIFE NURSES
Amicus Curiae

Mailee Rebecca Smith Direct: 202-289-1478 [COR LD NTC Retained] (see above)

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BIOETHICS DEFENSE FUND Amicus Curiae
LIFE LEGAL DEFENSE FOUNDATION Amicus Curiae
BREAST CANCER PREVENTION INSTITUTE Amicus Curiae

Edward L. Metzger, III [COR LD NTC Retained] Adams, Stepner, Woltermann & Dusing Firm: 859-394-6200 P.O. Box 861 Covington, KY 41012
Dorinda Bordlee [COR NTC Retained] Adams, Stepner, Woltermann & Dusing Firm: 859-394-6200 P.O. Box 861 Covington, KY 41012
Nike Nikas [COR NTC Retained] Adams, Stepner, Woltermann & Dusing Firm: 859-394-6200 P.O. Box 861 Covington, KY 41012
Catherine W. Short [COR NTC Retained] Adams, Stepner, Woltermann & Dusing Firm: 859-394-6200 P.O. Box 861 Covington, KY 41012
Edward L. Metzger, III [COR LD NTC Retained] (see above)
Dorinda Bordlee [COR NTC Retained] (see above)
Nike Nikas [COR NTC Retained] (see above)
Catherine W. Short [COR NTC Retained] (see above)
Edward L. Metzger, III [COR LD NTC Retained] (see above)

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DIOCESE OF GRAND RAPIDS Amicus Curiae

Dorinda Bordlee [COR NTC Retained] (see above)
Nike Nikas [COR NTC Retained] (see above)
Catherine W. Short [COR NTC Retained] (see above)
David T. Raimer [NTC Retained] Jones Day Firm: 202-879-3939 51 Louisiana Avenue, N.W. Washington, DC 20001

2/19/13 3:33 PM

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AUTOCAM CORPORATION; AUTOCAM MEDICAL, LLC; JOHN KENNEDY; PAUL KENNEDY; JOHN KENNEDY, IV; MARGARET KENNEDY; THOMAS KENNEDY
Plaintiffs - Appellants
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA L. SOLIS, names as Hilda Solis; Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF TREASURY
Defendants - Appellees
------------------------------
LIBERTY, LIFE AND LAW FOUNDATION; STATE OF MICHIGAN; STATE OF OHIO; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRIES; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; NATIONAL ASSOCIATION OF EVANGELICALS ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; PATRICK HENRY COLLEGE; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; AMERICAN CENTER FOR LAW & JUSTICE; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PRO LIFE OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; PHYCICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION; BREAST CANCER PREVENTION INSTITUTE; DIOCESE OF GRAND RAPIDS
Amici Curiae

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12/26/2012
3 pg, 13.09 KB

Civil Case Docketed. Notice filed by Appellants Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy, Mr. Paul Kennedy and Mr. Thomas Kennedy. Transcript needed: y. (LS)

12/26/2012

The case manager for this case is: Louise Schwarber. (LS)

12/26/2012
1 pg, 77.18 KB

APPEARANCE filed for Appellees Mr. Timothy Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor and United States Department of Treasury by Abby C. Wright. Certificate of Service: 12/26/2012. (ACW)

12/26/2012
1 pg, 12.98 KB

APPELLANT APPEARANCE filed by Attorney Patrick T. Gillen for Appellants Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy [Computer problems; filed by csmgr]. (LS)

12/26/2012
1 pg, 13.29 KB

APPELLANT APPEARANCE filed by Attorney Mr. Jason Charles Miller for Appellants Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy. [Computer problems; filed by csmgr.] (LS)

12/26/2012
1 pg, 18.63 KB

CIVIL APPEAL STATEMENT OF PARTIES AND ISSUES filed by Attorney Mr. Jason Charles Miller for Appellants Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy. Certificate of Service:12/26/2012. [Computer problems; filed by csmgr.] (LS)

12/26/2012

CORPORATE DISCLOSURE STATEMENT filed by Attorney Mr. Jason

1 pg, 18.29 KB Charles Miller for Appellants Autocam Corporation. Certificate of Service:

12/26/2012. [Computer problems; filed by csmgr.] (LS)

12/26/2012

CORPORATE DISCLOSURE STATEMENT filed by Attorney Mr. Jason

1 pg, 18.68 KB Charles Miller for Autocam Medical, LLC. Certificate of Service: 12/26/2012.

[Computer problems; filed by csmgr.] (LS)

12/26/2012
91 pg, 3.44 MB

EMERGENCY Appellant MOTION for Injunction Pending Appeal filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy for . Certificate of service: 12/26/2012. [Computer problems; filed by csmgr.] (LS)

12/26/2012
4 pg, 31.96 KB

Appellant MOTION filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy expedite case. Certificate of service: 12/26/2012. [Computer problems; filed by csmgr.] (LS)

12/27/2012

RESPONSE in opposition filed regarding a motion for miscellaneous relief,

68 pg, 499.64 KB [4761546-2]; previously filed by Mr. Jason Charles Miller in 12-2673. Response

from Attorney Ms. Abby Christine Wright for Appellees United States

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Department of Health and Human Services, United States Department of Treasury, United States Department of Labor, Kathleen Sebelius, Mr. Timothy Geithner and Hilda L. Solis Certificate of Service:12/27/2012. (ACW)

12/28/2012

TRANSCRIPT ORDER FORM filed by Mr. Jason Charles Miller for Autocam

1 pg, 48.51 KB Corporation, et al. Transcript on file in district court. (LS)

12/28/2012

BRIEFING LETTER SENT setting briefing schedule: appellant brief due

5 pg, 17.77 KB 02/11/2013; appellee brief due 03/14/2013. (LS)

12/28/2012
5 pg, 129.22 KB

ORDER filed denying motion for injunction penindg appeal [4761546-2] filed by Mr. Jason Charles Miller; granting motion expedite case [4761553-2] filed by Mr. Jason Charles Miller. The clerk shall expedite this appeal for briefing and submission. Karen Nelson Moore, John M. Rogers (Dissenting) and Richard Allen Griffin, Circuit Judges. (LS)

12/30/2012
0 pg, 0 KB

PETITION for rehearing before original panel filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy. Certificate of Service: 12/30/2012. [DISREGARD - coounsel to refile using the path: Motion/Stipulation >> motion >> Court/Clerk Decisions >> reconsider pervious order.]--[Edited 12/31/2012 by LS] (JCM)

12/31/2012
0 pg, 0 KB

MOTION filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy to stay injunction pending appeal. Certificate of Service: 12/31/2012. [DISREGARD - counsel to refile using the path: Motion/Stipulation >> motion >> Court/Clerk Decisions >> reconsider pervious order.]--[Edited 12/31/2012 by LS] (JCM)

12/31/2012
0 pg, 0 KB

ADDITIONAL CITATION filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy. Certificate of Service: 12/31/2012. [DISREGARD - counsel to include in motion to reconsider; does not conform to FRAP 28(j).] (JCM)

12/31/2012

MOTION filed by Mr. Jason Charles Miller for Autocam Corporation, Autocam

37 pg, 375.85 KB Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy, Mr. John Kennedy, IV,

Ms. Margaret Kennedy and Mr. Thomas Kennedy to reconsider order dated

12/28/2012. Certificate of Service: 12/31/2012. (JCM)

12/31/2012

ORDER filed denying motion to reconsider previous order [4763270-2] filed by

2 pg, 97.21 KB Mr. Jason Charles Miller. Karen Nelson Moore, John M. Rogers (Dissenting)

and Richard Allen Griffin, Circuit Judges. (LS)

01/15/2013
1 pg, 77.27 KB

APPEARANCE filed for Appellees Mr. Timothy Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor and United States Department of Treasury by Alisa B. Klein. Certificate of Service: 01/15/2013. (ABK)

01/15/2013

APPEARANCE filed for Appellees Mr. Timothy Geithner, Kathleen Sebelius,

1 pg, 77.23 KB Hilda L. Solis, United States Department of Health and Human Services, United

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States Department of Labor and United States Department of Treasury by Mark B. Stern. Certificate of Service: 01/15/2013. (MBS)

02/01/2013

AMICUS APPEARANCE filed by Attorney Ms. Deborah Jane Dewart for Amicus Curiae Liberty, Life and Law Foundation. (LS)

02/11/2013

APPELLANT BRIEF filed by Mr. Jason Charles Miller for Autocam

48 pg, 179.95 KB Corporation, Autocam Medical, LLC, Mr. John Kennedy, Mr. Paul Kennedy,

Mr. John Kennedy, IV, Ms. Margaret Kennedy and Mr. Thomas Kennedy.

Certificate of Service:02/11/2013. Argument Request: requested. (JCM)

02/12/2013
2 pg, 46.95 KB

APPEARANCE filed for Amici Curiae Association of Christian Schools International, Association of Gospel Rescue Missions, Institutional Religious Freedom Alliance and Christian Legal Society, National Association of Evangelicals Ethics & Religious Liberty Commission of the Southern Baptist Convention, Patrick Henry College and Prison Fellowship Ministries by Kimberlee Wood Colby. Certificate of Service: 02/12/2013. (KWC)

02/13/2013

APPEARANCE filed for Amicus Curiae American Center For Law & Justice by

1 pg, 28.61 KB Jay Alan Sekulow. Certificate of Service: 02/13/2013. (JAS)

02/14/2013

APPEARANCE filed for Amicus Curiae State of Ohio by Frederick D. Nelson.

1 pg, 76.98 KB Certificate of Service: 02/14/2013. (FDN)

02/15/2013

AMICUS BRIEF filed by Mr. Jay A. Sekulow for American Center For Law &

53 pg, 273.96 KB Justice. Certificate of Service:02/15/2013. (JAS)

02/15/2013

APPEARANCE filed for Amici Curiae Bioethics Defense Fund, Breast Cancer

1 pg, 22.39 KB Prevention Institute and Life Legal Defense Foundation by Edward L. Metzger

III. Certificate of Service: 02/15/2013. (ELM)

02/15/2013

AMICUS BRIEF filed by Ms. Deborah Jane Dewart for Liberty, Life and Law

45 pg, 101.45 KB Foundation. Certificate of Service:02/15/2013. (DJD)

02/15/2013

APPEARANCE filed for Amicus Curiae State of Michigan by B. Eric

1 pg, 68.43 KB Restuccia. Certificate of Service: 02/15/2013. (BER)

02/15/2013
1 pg, 76.92 KB

APPEARANCE filed for Amici Curiae American Association of Pro Life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Catholic Medical Association, Christian Medical Association, National Association of Pro Life Nurses, National Catholic Bioethics Center and Phycicians for Life by Mailee R. Smith. Certificate of Service: 02/15/2013. (MRS)

02/18/2013

APPEARANCE filed for Amici Curiae Bioethics Defense Fund, Breast Cancer

3 pg, 150.94 KB Prevention Institute and Life Legal Defense Foundation by Dorinda C. Bordlee

Nikolas T. Nikas Catherine W. Short. Certificate of Service: 02/18/2013. (ELM)

02/18/2013

AMICUS BRIEF filed by Mr. Edward L. Metzger, III for Bioethics Defense

44 pg, 356.39 KB Fund, Life Legal Defense Foundation and Breast Cancer Prevention Institute.

Certificate of Service:02/18/2013. (ELM)

02/19/2013

AMICUS BRIEF filed by Ms. Mailee Rebecca Smith for American Association

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40 pg, 282.13 KB of Pro Life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Christian Medical Association, Catholic Medical Association, National Catholic Bioethics Center, Phycicians for Life and National Association of Pro Life Nurses. Certificate of Service:02/19/2013. (MRS)

02/19/2013

AMICUS BRIEF filed by Mr. Bernard Eric Restuccia for State of Michigan.

44 pg, 324.24 KB Certificate of Service:02/19/2013. (BER)

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Page 14 of 14

 
 Autocam Corp. v. Sebelius
United States Court of Appeals for the Sixth Circuit December 28, 2012, Filed No. 12-2673
Reporter: 2012 U.S. App. LEXIS 26736

AUTOCAM CORPORATION, et al., Plaintiffs- Opinion

Appellants, v. KATHLEEN SEBELIUS, Secre-

tary of the United States Department of Health ORDER and Human Services, et al., Defendants-Appel-

lees.

Autocam Corporation, Autocam Medical, and

their owners appeal the denial of a preliminary

Prior History: Autocam Corp. v. Sebelius, 2012 injunction in their action before the district

U.S. Dist. LEXIS 184093 (W.D. Mich., Dec. 24, court challenging the implementation of the con-

2012)

traception-coverage provisions in the Patient

Protection [*2] and Affordable Care Act, Pub.

Counsel: [*1] For CYRIL B. KORTE, JANE E. L. No. 111-148, 124 Stat. 119 (2010), as

KORTE, KORTE AND LUITJOHAN CON- amended by the Health Care and Education Rec-

TRACTORS, INCORPORATED, Plaintiffs - onciliation Act, Pub. L. No. 111-152, 124

Appellants: Edward Lawrence White, Attorney, Stat. 1029 (2010) (the ʺ″ACAʺ″), under the Free AMERICAN CENTER FOR LAW & JUSTICE, Exercise Clause of the First Amendment and

Ann Arbor, MI.

the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb, et seq . (ʺ″RFRAʺ″). The plain-

For KATHLEEN SEBELIUS, in her official tiffs move for an injunction pending appeal

capacity as the Secretary of the United States and to expedite the appeal.

Department of Health and Human Services,

UNITED STATES DEPARTMENT OF THE Federal Rule of Appellate Procedure 8(a)(2) au-

TREASURY, TIMOTHY F. GEITHNER, in his thorizes us to grant an injunction pending ap-

official capacity as the Secretary of the United peal. ʺ″In granting such an injunction, the Court

States Department of the Treasury, UNITED is to engage in the same analysis that it does

STATES DEPARTMENT OF LABOR, HILDA in reviewing the grant or denial of a motion for

L. SOLIS, in her official capacity as Secretary of a preliminary injunction.ʺ″ Id. The relevant fac-

the United States Department of Labor, tors are: ʺ″(1) whether the movant has shown

UNITED STATES DEPARTMENT OF a strong likelihood of success on the merits; (2)

HEALTH & HUMAN SERVICES, Defendants - whether the movant will suffer irreparable

Appellees: Bradley Phillip Humphreys, DE- harm if the injunction is not issued; (3) whether

PARTMENT OF JUSTICE, Civil Division, Fed- the issuance of the injunction would cause suberal Programs Branch, Washington, DC; Alisa B. stantial harm to others; and (4) whether the

Klein, Attorney, DEPARTMENT OF JUSTICE, public interest would be served by issuing the in-

Civil Division, Appellate Staff, Washington, junction.ʺ″ Overstreet v. Lexington-Fayette Ur-

DC.

ban Cnty. Gov’t , 305 F.3d 566, 573 (6th Cir.

2002); see also Baker v. Adams Cnty./Ohio Val-

Judges: Before: MOORE, ROGERS, and GRIF- ley Sch. Bd ., 310 F.3d 927, 928 (2002).

FIN, Circuit Judges. ROGERS, J., dissenting.

To demonstrate [*3] a likelihood of success on

appeal, ʺ″[i]t is not enough that the chance of

success on the merits be better than negli-

2012 U.S. App. LEXIS 26736, *3

gible.ʺ″ Nken v. Holder , 556 U.S. 418, 434, 129 Overstreet v. Lexington-Fayette Urban Cnty.

S. Ct. 1749, 173 L. Ed. 2d 550 (2009) (inter- Gov’t , 305 F.3d 566, 578 (6th Cir. 2002). But,

nal quotation marks and citation omitted). In- as discussed above, it is not clear that the con-

stead, ʺ″[m]ore than a mere possibility of re- traceptive requirement violates the plaintiffs’

lief is required.ʺ″ Id. (internal quotation marks constitutional rights. And purely monetary

and citation omitted).

damages generally do not warrant an injunc-

The Supreme Court has never considered similar RFRA or free-exercise claims. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 184 L. Ed. 2d 448, 2012 WL 6698888 (2012). But, applying a more demanding standard, it denied an injunction pending appeal in a case involving similar issues. Id. No circuit court has considered these claims. Although no dis-

tion. Id . at 578-79. Further, the district court noted that the contraceptive requirement was codified as a tax, which if it is, would bar its preliminary [*5] or permanent enjoinment. 26 U.S.C. § 7421(a); see also Nat’l Fed’n of Indep. Bus. v. Sebelius , 132 S. Ct. 2566, 2583, 183 L. Ed. 2d 450 (2012). The remaining factors do not weigh in favor of either side.

trict court has issued a final decision on these is- The plaintiffs also move to expedite the ap-

sues, the district courts that have considered

peal. The appeal focuses on purely legal issues

whether to grant a preliminary injunction on that have already been briefed below. Fur-

similar claims have issued conflicting deci- ther, the district court’s decision on appeal con-

sions. Compare Korte , 2012 U.S. Dist.

flicts with another district court’s decision in

LEXIS 177101, 2012 WL 6553996, at *6-11 (de- this circuit. See Legatus v. Sebelius , No. 12-

nying a preliminary injunction), Hobby Lobby 12061, 2012 U.S. Dist. LEXIS 156144, 2012

Stores, Inc. v. Sebelius , 870 F. Supp. 2d 1278, WL 5359630, at *6-13 (E.D. Mich. Oct. 31,

1290-96 (W.D. Okla. 2012) (same), with Tyn- 2012) (granting a preliminary injunction on

dale House Publishers, Inc. v. Sebelius , No. 12 similar issues). Under these circumstances, it is

-1635, 2012 U.S. Dist. LEXIS 163965, 2012

prudent to expedite consideration of the is-

WL 5817323, at *10-18 (D.D.C. Nov. 16, 2012) sues on appeal.

(granting a preliminary injunction), Legatus v.

Sebelius , No. 12-12061, 2012 U.S. Dist. LEXIS The motion for an injunction pending appeal is

156144, 2012 WL 5359630, at *6-13 (E.D. Mich. Oct. 31, 2012) [*4] (same), and New-

DENIED. The motion to expedite the appeal is GRANTED, and the clerk shall expedite this

land v. Sebelius , No. 1:12-cv-1123, 2012 U.S. appeal for briefing and submission.

Dist. LEXIS 104835, 2012 WL 3069154, at *5-8

(D. Colo. July 27, 2012) (same). Certainly,

Dissent by: ROGERS

the divergence of opinion by the district courts

establishes the possibility of success on the

Dissent

merits. But, in light of the lower court’s rea-

soned opinion in this case and the Supreme ROGERS, J., dissenting.

Court’s recent denial of an injunction pending

appeal in Hobby Lobby, the plaintiffs have

I would grant the injunction pending appeal,

not demonstrated more than a possibility of re- for the following reasons.

lief. See Winter v. Natural Res. Def. Council,

Inc ., 555 U.S. 7, 22, 129 S. Ct. 365, 172 L. Ed. There is a reasonable likelihood of success on

2d 249 (2008) (parsing the meaning of

the merits for the plaintiffs in this case on their

ʺ″likelyʺ″ relative to the ʺ″irreparable harmʺ″ re- RFRA claim, essentially for the reasons given

quirement for issuance of a preliminary injunc- in Tyndale House Publishers, Inc. v. Sebelius ,

tion).

No. 12-1635, 2012 U.S. Dist. LEXIS 163965,

2012 WL 5817323, at *10-18 (D.D.C. Nov. 16,

The denial of an injunction can ʺ″cause irrepa- 2012). See also [*6] Newland v. Sebelius , No.

rable harm if the claim is based upon a viola- 1:12-cv-1123, 2012 U.S. Dist. LEXIS 104835,

tion of the plaintiff’s constitutional rights.ʺ″

2012 WL 3069154, at *5-8 (D. Colo. July

2012 U.S. App. LEXIS 26736, *6

27, 2012).

where the Government has apparently not ap-

pealed or [*7] requested a stay in a similar case in

Both RFRA and the applicable standard for a which a preliminary injunction was en-

preliminary injunction in this case require in tered. Legatus v. Sebelius , No. 12-12061, 2012

some sense a balancing between the burden

U.S. Dist. LEXIS 156144, 2012 WL 5359630, at

on the religious conscience of plaintiffs and the *6-13 (E.D. Mich. Oct. 31, 2012). Also, we are

interests furthered by the regulation in ques-

not informed that the Government has

tion. Plaintiffs assert that it would violate their sought or obtained a stay in two other very simi-

sincere religious beliefs to direct the com-

lar cases where a preliminary injunction has

pany that they control to cut checks to pay di- been entered ( Tyndale, supra; and Newland, su-

rectly for contraceptive services. They are

pra). Moreover, the interests of the employ-

okay, however, with giving discretionary health- ees in obtaining contraceptive services do not

care money to their employees, who may

appear weighty in the context of this case, where

then choose to buy such services. If walking such services can be paid for through indi-

this fine line is sincerely accepted as a condi- vidual health care accounts provided by the em-

tion for salvation, it is not up to the govern- ployer.

ment to say that the line is too fine. Lots of re-

ligious lines are fine. Of course government is The burden on the plaintiffs, assuming their sin-

not bound by every religious fine line. But

cerity, is in contrast large. It is that they must

RFRA requires that the government interest be take a chance on huge fines or act contrary to

strong before forcing people to cross the

their conscience.

line. For these reasons, I would grant the injunction

At this stage of this litigation, the government against the enforcement of the regulation in

interest does not appear particularly weighty. Ar- question pending appeal. Because the majority

guments about the government’s interest in

denies the injunction pending appeal, I agree

the consistent application of the law lack force that the appeal should be expedited.

 
 http://www.supremecourt.gov/orders/courtorders/070114zr_eeam.pdf, redacted to include only Hobby Lobby related orders

(ORDER LIST: 573 U. S.)

TUESDAY, JULY 1, 2014

CERTIORARI -- SUMMARY DISPOSITIONS

13-482 13-567

AUTOCAM CORPORATION, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014). GILARDI, FRANCIS A., ET AL. V. DEPT. OF H&HS, ET AL.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit For
further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

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13-591

EDEN FOODS, INC., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit For further consideration in light of Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014).

2

CERTIORARI DENIED

13-915 13-919 13-937

DEPT. OF H&HS, ET AL. V. GILARDI, FRANCIS A., ET AL. BURWELL, SEC. OF H&HS, ET AL. V. NEWLAND, WILLIAM, ET AL. BURWELL, SEC. OF H&HS, ET AL. V. KORTE, CYRIL B., ET AL.
The petitions for writs of certiorari are denied.

4