Case 2:13-cv-15487 Document 28 Filed 07/26/13 Page 1 of 16 PageID #: 271

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

JOSEPH B. HOLLAND, JR.; and JOE HOLLAND CHEVROLET, INC., a West Virginia Corporation,
Plaintiffs,
v.

Civil Action No. 2:13-cv-15487

THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THE UNITED STATES DEPARTMENT OF LABOR; SETH D. HARRIS, in his official capacity as Acting Secretary ofthe United States Department of Labor; THE UNITED STATES DEPARTMENT OF THE TREASURY; and JACOB LEW, in his official capacity as Secretary of the United States Department of the Treasury,
Defendants.
AMENDED COMPLAINT
COME NOW the Plaintiffs, Joseph B. Holland, Jr. ("Mr. Holland") and Joe Holland
Chevrolet, Inc. ("Holland Chevrolet"), by and through their undersigned counsel, and state the
following as their Amended Complaint against the Defendants:

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I. NATURE OF THE CASE 1. Plaintiffs challenge the constitutionality and lawfulness of certain provisions of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148, 124 Stat. 119 (2010)
(codified as amended in scattered sections of the U.S. Code), the Health Care and Education
Reconciliation Act (Pub. L. 111-152, 124 Stat. 1029 (2010) (codified as amended in scattered
sections of the U.S. Code), and certain provisions of the regulations promulgated under said Acts and found in Title 45 of the Code of Federal Regulations (collectively the "ACA"). The
challenged statutes and regulations require Holland Chevrolet to provide group health insurance coverage to its employees for drugs that induce abortion ("abortifacient drugs" 1 ) and
contraceptive counseling, education, and other information concerning the availability of
abortifacient drugs (hereafter "abortion-related counseling"). Collectively, the challenged
statutes and regulations are referred to herein as the "Abortifacient Requirement." The Plaintiffs
do not oppose all types of contraception.
2. Plaintiffs believe that the Abortifacient Requirement imposes an unjustifiable,
substantial burden upon their exercise of religion in direct violation of the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C §§ 2000bb et seq., and constitutes a substantial and
1 There is disagreement regarding the use of the term "abortifacient" as it pertains to the ACA. The U.S. Food and Drug Administration ("FDA") define abortifacients as drugs or devices that cause or may cause the death of a human embryo or fetus after implantation in the uterus. U.S. Food and Drug Administration: Approved Methods of Birth Control, www.consciencelaws.org (last visited July 16, 2013). The FDA defines "embryocides" as drugs or devices that cause or may cause the death of a human embryo before implantation in the uterus. /d. The Plaintiffs' religious belief is that human life begins at conception, before the embryo is implanted in the uterus. Therefore, Plaintiffs believe that causing the death of a human embryo before it is implanted in the embryo constitutes abortion. To be true to Plaintiffs' religious beliefs, and to be consistent with the terminology used in other court decisions addressing challenges to the Abortifacient Requirement, Plaintiffs will refer to drugs that cause the death of a human embryo at any time after conception, including before the embryo is implanted in the uterus, as abortifacients. The Plaintiffs do not oppose all forms of contraception, such as contraceptive drugs and devises that prevent fertilization. The Plaintiffs oppose only drugs that kill human embryos (abortifacients).
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indefensible violation of their First Amendment rights to freedom of religion, free speech, and freedom of association.
3. Plaintiffs seek declaratory and injunctive relief from the Defendants' enforcement of the Abortifacient Requirement. Plaintiffs do not have an adequate remedy at law.
II. JURISDICTION AND VENUE 4. This action arises under the Constitution and laws of the United States. The United States District Court for the Southern District of West Virginia has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 5. Venue is in the United States District Court for the Southern District of West Virginia pursuant to 28 U.S.C. § 1391(b)(2) because this is the judicial district in which a substantial part of the events or omissions giving rise to the claims occur.
III. IDENTIFICATION OF PARTIES 6. Mr. Holland is a United States citizen and a resident of Kanawha County, West Virginia. 7. Mr. Holland is president of Holland Chevrolet and chairman of its board of directors. He is actively involved in the day-to-day management of Holland Chevrolet and owns 91% of the company's stock. The remaining 9% of the stock is held in trust by the Joseph B. Holland, Sr., Trust, of which Mr. Holland is the Trustee. 8. Holland Chevrolet is a closely held West Virginia corporation established by Mr. Holland's now deceased father in 1964. 9. Holland Chevrolet is engaged in the business of selling and servicing motor vehicles, with its principal place of business in South Charleston, West Virginia.
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10. The Defendants are Executive Branch agencies of the United States government and appointed officials of those agencies responsible for implementing and enforcing the Contraceptive Coverage Mandate.
11. Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services ("HHS") and is sued in her official capacity only.
12. Seth D. Harris is the Acting Secretary of the United States Department of Labor ("DOL") and is sued in his official capacity only.
13. Jacob Lew is the Secretary of the United States Department of the Treasury ("the Treasury") and is sued in his official capacity only.
14. HHS, DOL, and the Treasury each have responsibilities for promulgating regulations implementing the ACA and for administering and enforcing its provisions, including the Contraceptive Coverage Mandate.
IV. STATEMENT OF FACTS A. Plaintiffs' religious beliefs and practices.
15. Mr. Holland experienced a religious conversion in 1996 when he became a believing and practicing born-again Christian.
16. As a devoted born-again Christian, Mr. Holland is resolved to conduct all aspects of his life, including his management of Holland Chevrolet, in accordance with God's Word.
17. In observation of his sincere religious beliefs, Mr. Holland attends multiple weekly worship services at the Maranatha Fellowship Church; participates in a weekly men's group Bible study; frequently conducts the informal prayer meeting held every Monday morning at Holland Chevrolet; supports youth ministries such as the Silver Ring Ministry, which promotes pre-marital sexual abstinence; participates in the Life Chain, a pro-life religious ministry; delivers religious readings on Christian radio; is Chairman of the fund-raising
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committee for the local chapter of the Fellowship of Christian Athletes; and supports other religious organizations such as the Campus Crusade for Christ and Promise Keepers.
18. One of Mr. Holland's sincerely held religious beliefs is that all human life is sacred to its Creator and that it is profoundly immoral to procure, facilitate, fund, or endorse abortions.
19. Mr. Holland regards it as his religious duty to operate Holland Chevrolet in conformity with his religious beliefs. In Mr. Holland's view, his right to the free exercise of religion should not be limited by the form in which he elects to do business.
20. Holland Chevrolet, as a cognizable legal person, conducts itself in accordance with the same religious principles that animate its president, chairman of the board, and principal stockholder.
21. In observation of the Fourth Commandment to "Remember the Sabbath day and keep it holy," Holland Chevrolet is closed on Sundays.
22. One of Holland Chevrolet's employees serves as a company chaplain who is available to employees for counseling, prayer, and support during difficult and challenging times.
23. Holland Chevrolet's website emphasizes as part of the corporation's mission statement the duty "to glorify and honor God by being faithful stewards for all that is entrusted to us." http://joeholland.com/mission.shtml (last visited July 22, 2013).
24. Holland Chevrolet's signage and other business imagery feature in their design the ichthus (the ancient symbol of the Christian faith).
25. All employees of Holland Chevrolet are free to attend the weekly Monday morning prayer meeting during regular work hours.
26. The Plaintiffs believe that Holland Chevrolet should serve as a form of religious
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Case 2:13-cv-15487 Document 28 Filed 07/26/13 Page 6 of 16 PageID #: 276
ministry to its employees, customers, and community by conducting its business in accordance with God's word.
27. The Plaintiffs believe that this ministry is undermined by their compliance with the Abortifacient Requirement, and that compliance with the Abortifacient Requirement violates God's Word and contravenes the message of their ministry.
28. The Plaintiffs believe that the Bible is the inspired, infallible, and authoritative WordofGod.
29. The Plaintiffs believe that the Bible reveals the principles by which God expects human beings to conduct themselves in all aspects of their lives, including their jobs and business dealings.
30. The Plaintiffs believe that God commands respect for the sanctity of all human life, including the unborn.
31. The Plaintiffs believe that according to God's Word, human life begins at conception, and that all human life must be treated with dignity, respect, and protection from the moment of conception onward.
32. The Plaintiffs believe, based on the teachings of the Bible generally and the Sixth Commandment in particular ("Thou Shalt Not Kill"), that God abhors and condemns the intentional destruction of human life.
33. The Plaintiffs believe that it violates the Sixth Commandment for them to procure, facilitate, endorse, fund, or engage abortions.
34. The Plaintiffs' sincerely held religious beliefs condemn their providing coverage for the abortifacient drugs and abortion-related counseling required by the Abortifacient Requirement.
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B. The ACA, Abortifacient Requirement, and Holland Chevrolet.

35. The ACA was adopted in March 2010.

36. Under the ACA, employers with more than 50 full-time employees are required to

provide a certain minimum level of health insurance coverage to their employees. 26 U.S.C. §

4980H.

37. Holland Chevrolet has approximately 150 full-time employees.

38. The ACA specifically requires non-grandfathered and non-exempt group health

insurance plans to cover certain preventive health services at no cost to the insured. 42 U.S.C. §

300gg-13(a)(4).

39. Regulations promulgated by HHS pursuant to the ACA specify that the required

preventive health coverage must include all FDA-approved contraceptive methods. 77 Fed. Reg.

8725 (Feb. 15, 2012); see also 45 C.P.R.§ 147.130.

40. The contraceptive methods approved by the FDA include abortifacients such as

the "Plan B" and "Next Choice" drugs (commonly referred to as the "morning after pill") and

"ella" (commonly referred to as the "week after pill"), which is similar to the abortion drug RU-

486.

ld.; Office of Women's Health, FDA, Birth Control Guide,

http://www.fda.gov/downloads/forconsumerslbyaudience/forwomen/freepublications/ucm33645

l.pdf (last visited July 23, 2013); HRSA Guidelines, http://www.hrsa.gov/womensguidelines

(last visited July 23, 2013).

41. The Abortifacient Requirement also requires group health care plans to pay for

the provision of counseling, education, and the dissemination of information concerning

contraception (including information regarding abortifacient drugs) to all female beneficiaries

who are capable of bearing children. !d.

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42. HHS has adopted regulations providing an exemption from the Abortifacient Requirement employers with 50 or fewer full-time employees, non-profit religious employers, and certain other "grandfathered" plans. See 45 C.F.R. § 147.131; 78 Fed. Reg. 39873 -74 (July 3, 2013); 45 C.F.R. § 147.190. These exemptions exclude millions of employees from the Abortifacient Requirement.
43. The Abortifacient Requirement applies to group health insurance plans beginning with the first plan year after August 1, 2012. 77 Fed. Reg. 8725-26.
44. Violations of the Abortifacient Requirement subject employers to financial penalties including a $100 per day, per employee tax. 42 U.S.C. § 300gg-22; see also 26 U.S.C. § 4980H (imposing assessable payments on employers who fail to provide the health care coverage as required by the ACA and employers who fail to provide "affordable" health care coverage as required by the ACA).
45. Violation of the ACA may also trigger a range of enforcement mechanisms that exist under ERISA, including civil actions by the Secretary of Labor or by plan participants and beneficiaries, which could entail additional penalties. 29 U.S.C §§ 1003(a), 1132.
46. Consistent with their religious beliefs, Plaintiffs have provided and wish to continue providing a generous group health care plan ("the "Plan") to the employees of Holland Chevrolet.
47. The Abortifacient Requirement applies to the Plan beginning July 1, 2013, because Holland Chevrolet (i) has more than 50 full-time employees, (ii) does not qualify as a religious employer, and (iii) is not entitled to the grandfather exemption because the Plan's current $5,000 deductible represents a $2,000 increase of the deductible in effect on March 23, 2010.
48. There has been considerable confusion regarding whether Holland Chevrolet's
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group health care plan ("the Plan") provides coverage for the abortifacient drugs and abortion-
related counseling included in the Abortifacient Requirement. Plaintiffs initiated this litigation
and moved the Court for a temporary restraining order and preliminary injunction with the
understanding that the Plan does not cover the objectionable drugs and counseling. Thereafter,
the Plaintiffs' insurer reported that the current Plan does in fact cover abortifacient drugs, and
that the Plan covered these drugs prior to July 1, 2013, whereupon the Plaintiffs filed a motion
disclosing this new information to the Court and withdrawing their motion for a temporary
restraining order and preliminary injunction.2
49. The Abortifacient Requirement unlawfully and unconstitutionally coerces the
Plaintiffs to violate their sincerely held religious beliefs.
50. The Plaintiffs' compliance with the Abortifacient Requirement causes a
substantial burden on the Plaintiffs' exercise of religion and causes irreparable harm to the
Plaintiffs by forcing them to abandon or act in derogation of their religious beliefs by providing
insurance coverage for abortifacients and abortion-related counseling.
51. Cancelling their employee group health care plan in order to avoid compliance
with the Abortifacient Requirement, and thereby avoid violating their religious beliefs, may
expose the Plaintiffs to statutory penalties under the ACA. See 26 U.S.C. § 4980H.
2 It is easy to be confused regarding the various abortifacients since some are available over-the-counter and others require a prescription. For example, there are two types of "Plan-B" drugs: the original Plan-B (two-dose regimen) and the new Plan-B One Step (one-dose regimen). The brand name Plan-B drugs are manufactured by Teva Pharmaceuticals. There are also generic versions of both Plan-B drugs. Special FDA rules define the availability of the brand name Plan-B drugs manufactured by Teva. Until recently, women under age 17 needed a prescription for Plan-B drugs, brand name & generic. In April 2013, the FDA approved the brand name Plan-B One Step for nonprescription use by girls as young as 15. On June 20, 2013, the FDA announced that it would no longer prohibit the sale of the brand name Plan-B One Step over-the-counter to women of any age. Currently, women of .!!ill'. age can buy the brand name Plan-B One Step over-the-counter. On the other hand, women under age 17 cannot purchase the generic one-dose drug (i.e., Next Choice One Dose) with or without a prescription, & women under age 17 must have a prescription to purchase the generic two-dose version of Plan-B. See http://www.npr.org/blogs/health/2013/07/24/205182187/plan-b-to-hit-shelves-protected-from-generics (last visited July 23, 2013). In addition to the Plan B drugs, there is the abortifacient drug with the brand name ella. Ella requires a prescription. Plaintiffs oppose all abortifacient drugs including, but not limited to, the brand name Plan B drugs, the generic Next Choice One Step, and ella. Plaintiffs do not oppose contraceptive drugs and methods that do not kill human embryos before or after implantation in the uterus.
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52. Any alleged interest the Defendants have in providing access to the abortifacients and abortion-related counseling required by the Abortifacient Requirement is not a compelling interest of the highest order.
53. The Defendants' interest in providing the abortifacients and abortion-related counseling required by the Abortifacient Requirement can be advanced through other measures that are more narrowly tailored and do not substantially burden the Plaintiffs' exercise of religion.
54. Without declaratory and injunctive relief as requested herein, the Plaintiffs will suffer irreparable harm as a result of their coerced compliance with the Abortifacient Requirement in violation of their sincere and held religious beliefs. The Plaintiffs have no adequate remedy at law.
COUNT I Violation of the Religious Freedom Restoration Act
42 u.s.c. § 2000bb
55. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Amended Complaint.
56. The Plaintiffs engage in the exercise of religion within the meaning of RFRA. 57. The Plaintiffs believe that the Abortifacient Requirement requiring them to provide insurance coverage for abortifacients and abortion-related counseling is sinful and contrary to their sincerely held religious beliefs. 58. The Abortifacient Requirement imposes a substantial burden on the Plaintiffs' exercise of religion because it forces the Plaintiffs to provide coverage under their employee health insurance plan for abortifacients and abortion-related counseling in violation of their religious beliefs.
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59. The Abortifacient Requirement chills and deters the Plaintiffs' religious exercise within the meaning of RFRA.
60. The Abortifacient Requirement furthers no compelling governmental interest by forcing the Plaintiffs' compliance with the mandate.
61. The Abortifacient Requirement is not the least restrictive, narrowly tailored means by which the Defendants may satisfy any interest they may have in providing abortifacients and abortion-related counseling as defined by the Abortifacient Requirement.
62. The Defendants' exemption of many employers and millions of employees from the Abortifacient Requirement contravenes any claim by the Defendants that the Abortifacient Requirement to further a compelling interest of the highest order.
63. The Defendants' exemption of certain groups from the Abortifacient Requirement together with their failure to accommodate the Plaintiffs' religious beliefs, is highly selective, arbitrary, and discriminatory.
64. The Abortifacient Requirement violates RFRA. COUNT II
Violation of the Free Exercise Clause of the First Amendment to the United States Constitution
65. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Amended Complaint.
66. The Plaintiffs' sincerely held religious beliefs prohibit them from providing the insurance coverage required by the Abortifacient Requirement.
67. The Plaintiffs engage in the exercise of religion within the meaning of the Free Exercise Clause of the First Amendment.
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68. The Abortifacient Requirement imposes substantial burdens on the Plaintiffs' exercise of religion and coerces them to abandon or act in derogation of their sincerely held religious beliefs.
69. The Abortifacient Requirement chills and deters the Plaintiffs' religious exercise within the meaning of the Free Exercise Clause.
70. The Abortifacient Requirement violates Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
COUNT III Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 71. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Amended Complaint. 72. The Plaintiffs wish to exercise their free speech rights to express a consistent religious-based pro-life message to their employees, their customers, their business associates and contacts, and the community in which they do business. 73. The Abortifacient Requirement unconstitutionally burdens the Plaintiffs' rights to speak or not to speak in accordance with their religious beliefs and to advance the truth as they see it. 74. The Abortifacient Requirement forces the Plaintiffs to endorse speech that contravenes their sincere and deeply held religious beliefs and the religious values that they strive to promote in their business. 75. The Abortifacient Requirement forces the Plaintiffs to support the Defendant's definition of abortion as occurring only after implantation of the embryo in the uterus and the Defendants' viewpoint about the morality of abortion-related activities.
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76. The Abortifacient Requirement imposes a requirement on the Plaintiffs to support conduct that substantially burdens and undermines the Plaintiffs' ability effectively to express and advocate their own contrary views.
77. The Defendants are requiring the Plaintiffs to convey one message when they comply with the Abortifacient Requirement, while the Plaintiffs are conveying another message when they speak out against abortion, which is to the detriment of the credibility Plaintiffs' free speech. Such fractured messaging makes the Plaintiffs appear inconsistent, equivocal, or hypocritical and impairs the Plaintiffs' message.
78. The speech compelled by the Abortifacient Requirement furthers no compelling governmental interest by forcing the Plaintiffs compliance.
79. The Abortifacient Requirement is not the least restrictive, narrowly tailored means by which the Defendants may satisfy any interest they have in providing abortifacients and abortion-related counseling as defined by the Abortifacient Requirement.
80. The Abortifacient Requirement violates the Plaintiffs' rights to speak freely and to refrain from compelled speech secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
COUNT IV Violation of the Right to Freedom of Association under the First Amendment
to the United States Constitution 81. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Amended Complaint. 82. Individuals have a right to associate and promote a particular belief. This right is known as the right of expressive association and is protected by the First Amendment to the United States Constitution.
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83. The Abortifacient Requirement imposes an unconstitutional burden on the Plaintiffs' right of expressive association by compelling the Plaintiffs to support, subsidize, or fund activities that are contrary to the Plaintiffs sincere religious beliefs.
84. The burden imposed by the Abortifacient Requirement on the Plaintiffs' right of expressive association furthers no compelling governmental interest and is not the least restrictive, narrowly tailored means by which the Defendants may satisfy any interest they have in providing abortifacients and abortion-related counseling as defined by the Abortifacient Requirement.
85. The Abortifacient Requirement violates the Plaintiffs' right of expressive association secured to them by the First Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Joseph B. Holland, Jr. and Joe Holland Chevrolet, Inc., pray for the following relief: A. That this Court enter a judgment pursuant to 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1 declaring the Abortifacient Requirement and its application to the Plaintiffs to be a violation of their rights as protected by RFRA and the Free Exercise, Free Speech, and Free Association Clauses of the First Amendment to the United States Constitution; C. That this Court enter a permanent injunction prohibiting the Defendants from applying and enforcing the Abortifacient Requirement so as to substantially burden the Plaintiffs' religious beliefs and free exercise of religion in violation of RFRA and the United States Constitution, and prohibiting the Defendants from continuing to discriminate illegally against the Plaintiffs by requiring them to comply with the Abortifacient Requirement;
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D. That this Court award the Plaintiffs costs and reasonable attorneys' fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); and
E. That this Court grant all such other and further relief as maybe proper and just.
JOSEPH B. HOLLAND, JR. JOE HOLLAND CHEVROLET, INC. By Counsel Is/ Allen R. Prunty Kent J. George (WV Bar #4842) William C. Porth (WV Bar #2943) Allen R. Prunty (WV Bar #2989) Brian E. Calabrese (WV Bar #12028) ROBINSON & MCELWEE, PLLC 700 Virginia Street, East- Suite 400 Charleston, West Virginia 25301 and Jeffrey C. Mateer Texas State Bar No. 13185320 Hiram S. Sasser, III Texas State Bar No. 24039157 LffiERTY INSTITUTE 2001 W. Plano Parkway, Suite 1600 Plano, Texas 75075 Jeremiah G. Dys (WV Bar #9998) The Family Policy Council ofWV P.O. Box 566 Charleston, WV 25322
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CERTIFICATE OF SERVICE
I, Allen R. Prunty, counsel for Plaintiffs Joseph B. Holland, Jr., and Joe Holland
Chevrolet, Inc., hereby certify that on the 26th day of July, 2013, I filed the foregoing Amended Complaint with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to Michelle Renee Bennett and Stephen M. Horn, counsel for Defendants, and Sarah Austin Rogers, counsel for Amicus Curiae ACLU of West Virginia Foundation; and, further, I certify that I served a true and correct copy of the foregoing Motion upon the following counsel of record by United States Mail, first class postage prepaid, on the 26th day of July, 2013:
Daniel Mach ACLU Foundation 915 15th Street- 6th Floor Washington, DC 20005 Counsel for American Civil Liberties Union Foundation
Jennifer Lee ACLU Foundation 125 Broad Street- 18th Floor New York, NY 10004 Counsel for American Civil Liberties Union Foundation
Is! Allen R. Prunty Allen R. Prunty (WV Bar# 2989)

 
 Case 2:13-cv-15487 Document 31 Filed 08/23/13 Page 1 of 3 PageID #: 305

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

__________________________________________

)

JOSEPH B. HOLLAND, JR., and

)

JOE HOLLAND CHEVROLET, INC.,

)

a West Virginia Corporation,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF LABOR; SETH D. HARRIS, )

in his official capacity as Acting Secretary of the )

United States Department of Labor; UNITED

)

STATES DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official capacity as

)

Secretary of the United States Department of the )

Treasury,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 2:13-cv-15487

DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants hereby move to dismiss this action. The grounds for this motion are set forth in the accompanying memorandum. Respectfully submitted this 23rd day of August, 2013,

IAN
R. United JENNIFER

STUART F. DELERY Assistant Attorney General
HEATH GERSHENGORN Deputy Assistant Attorney General
BOOTH GOODWIN II States Attorney
RICKETTS Director

Case 2:13-cv-15487 Document 31 Filed 08/23/13 Page 2 of 3 PageID #: 306

SHEILA Deputy
Trial United Civil
Attorneys

M. LIEBER Director

s/Stephen M. Horn

_

Assistant United States Attorney

WV State Bar No. 1788

United States Attorney’s Office

P.O. Box 1713

Charleston, WV 25326

Phone: 304-345-2200

Fax: 304-347-5443

E-mail: steve.horn@usdoj.gov

_s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050)
Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov

for Defendants.

Case 2:13-cv-15487 Document 31 Filed 08/23/13 Page 3 of 3 PageID #: 307
CERTIFICATE OF SERVICE I hereby certify that on August 23, 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/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney

 
 Case 2:13-cv-15487 Document 32 Filed 08/23/13 Page 1 of 23 PageID #: 331

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

__________________________________________

)

JOSEPH B. HOLLAND, JR., and

)

JOE HOLLAND CHEVROLET, INC.,

)

a West Virginia Corporation,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF LABOR; SETH D. HARRIS, )

in his official capacity as Acting Secretary of the )

United States Department of Labor; UNITED

)

STATES DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official capacity as

)

Secretary of the United States Department of the )

Treasury,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 2:13-cv-15487

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT

Case 2:13-cv-15487 Document 32 Filed 08/23/13 Page 2 of 23 PageID #: 332
Plaintiffs – a for-profit automobile dealership and its owner – seek an exemption from regulations that are intended to help ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. The regulations 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). As relevant here, except as to group health plans of certain non-profit religious employers, 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. Plaintiffs claim that their sincerely held religious beliefs prohibit them from providing health coverage for certain contraceptive services.
All of plaintiffs’ claims should be dismissed for failure to state a claim upon which relief may be granted. Plaintiffs’ challenge rests largely on the theory that a for-profit, secular corporation can exercise religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be. 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 are binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261 (1982). Nor can the owner of a for-profit, secular corporation eliminate the legal separation provided by the corporate form, which he has chosen because it benefits him, to impose his personal religious beliefs on the corporate entity’s employees. To hold otherwise would permit for-profit, secular companies and their owners to become laws unto themselves. Because there are an infinite variety of alleged religious beliefs, such companies and their owners could claim countless exemptions from an untold number of general commercial laws designed to protect against unfair discrimination in the workplace and to protect the health and well-being of individual employees and their families. Such a system would not only be unworkable, it would

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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 free exercise rights and dismiss this case.
BACKGROUND Before 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 largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM REP.”), available at http://www.nap.edu/catalog.php?record_id=13181. Section 1001 of the ACA, which includes the preventive services coverage provision 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). Because there were no existing HRSA guidelines relating to preventive care and screening for women, HHS tasked the Institute of Medicine (IOM) with developing recommendations to implement the requirement to provide preventive services for women. IOM REP. at 2.1 After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, well-woman visits; breastfeeding support; domestic violence screening; and, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with
1 IOM, which was established by the National Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv.
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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).2 FDA, Birth Control Guide, available at http://www.fda.gov/forconsumers/ byaudience/forwomen/ucm118465.htm. IOM determined that coverage, without cost-sharing, for these contraceptive 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.
On August 1, 2011, HRSA adopted IOM’s recommendations, subject to an exemption relating to certain religious employers. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/. The religious employer exemption, as amended by regulations issued on June 28, 2013, extends to any organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. See 78 Fed. Reg. 39,870, 39,896 (July 2, 2013).3
STANDARD OF REVIEW Defendants move to dismiss the case under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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).
2 Although plaintiffs describe Plan B and Ella as abortion-causing drugs, Am. Compl. ¶ 40, these drugs are not abortifacients within the meaning of federal law, as plaintiffs seem to acknowledge, id. at 2 n.1. See, e.g., 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (“Emergency contraceptive pills are not effective if the woman is pregnant[.]”); 45 C.F.R. § 46.202(f); Liberty Univ. v. Lew, 2013 WL 3470532, at *19 n.11 (4th Cir. July 11, 2013).
3 The government recently issued final rules that establish accommodations for non-profit religious organizations that object to contraceptive coverage on religious grounds. 78 Fed. Reg. 39,870.
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ARGUMENT I. THE COURT SHOULD DISMISS PLAINTIFFS’ RELIGIOUS FREEDOM
RESTORATION ACT CLAIM A. The Regulations Do Not Substantially Burden Any Exercise Of Religion By
A For-Profit, Secular Company And Its Owner Under the Religious Freedom Restoration Act (“RFRA”), Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1), 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). For several reasons, plaintiffs cannot show that the challenged regulations substantially burden any exercise of religion, and thus cannot succeed on their RFRA claim. First, Chevrolet is not an individual or a “religious organization,” and thus cannot engage in the “exercise religion,” under RFRA. Second, because the regulations apply only to the company, and not to its owner, the religious exercise of Mr. Holland is not substantially burdened. And third, any burden imposed by the regulations is attenuated and thus cannot be substantial.
1. There is no substantial burden on Chevrolet because a for-profit, secular company does not exercise religion
Plaintiffs’ contention that Chevrolet “exercise[s] . . . religion” within the meaning of RFRA, 42 U.S.C. § 2000bb-1(b), cannot be reconciled with the corporation’s status as a secular company. The terms “religious” and “secular” are antonyms; a “secular” entity is defined as “not overtly or specifically religious.” See Merriam-Webster’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.
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Cir. 2002); Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 83 (D.D.C.
2002), aff’d, 333 F.3d 156 (D.C. Cir. 2003). Numerous courts have rejected RFRA challenges nearly identical to Chevrolet’s on this basis.4
Chevrolet is plainly secular. The company’s pursuits and products are not religious; it is a
for-profit corporation that sells and services automobiles. Am. Compl. ¶ 9. Plaintiffs do not
allege that the corporation was organized for carrying out a religious purpose or that its Articles
of Incorporation articulate any religious purpose. Nor does the corporation assert that it employs
persons of a particular faith. Although defendants do not question the sincerity of Mr. Holland’s
religious beliefs, the sincere religious beliefs of a corporation’s owner do not make the
corporation religious. Otherwise, every corporation with a religious owner – no matter how
secular the corporation’s purpose – would be considered religious, which would dramatically
expand the scope of RFRA and the Free Exercise Clause. See Grote v. Sebelius, 708 F.3d 850,
856-58 (7th Cir. 2013) (Rovner, J., dissenting) (describing the potential consequences of such an
expansion); see also Autocam Corp. v. Sebelius, 2012 WL 6845677, at *7-8 (W.D. Mich. Dec.
24, 2012).
The government is aware of no case in which a secular, for-profit employer like
Chevrolet ultimately prevailed on a RFRA claim. Because Chevrolet is a secular employer, it is
not entitled to the protections of the Free Exercise Clause or RFRA. This is because, although the
4 See Conestoga Wood Specialities Corp. v. HHS, 2013 WL 3845365, at *5 (3d Cir. July 26, 2013) (“[W]e are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.”); Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103, at *45 (10th Cir. June 27, 2013) (Briscoe, C.J., concurring in part and dissenting in part) (“[D]uring the 200–year span between the adoption of the First Amendment and RFRA’s passage, the Supreme Court consistently treated free exercise rights as confined to individuals and non-profit religious organizations.”); Eden Foods, Inc. v. Sebelius, 2013 WL 1190001, at *4 (E.D. Mich. Mar. 22, 2013); Gilardi v. Sebelius, 2013 WL 781150, at *6-8 (D.D.C. Mar. 3, 2013), appeal docketed sub nom. Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 3, 2013); Briscoe v. Sebelius, 2013 WL 755413, at *4-5 (D. Colo. Feb. 27, 2013); Conestoga Wood Specialities Corp. v. Sebelius, 917
F. Supp. 2d 394, 406-08 (E.D. Pa. 2013); Korte v. HHS, 912 F. Supp. 2d 735, 743-44 (S.D. Ill. 2012).
By contrast, nearly every court to have ruled against defendants in a similar case has bypassed the question of whether a for-profit, secular corporation can exercise religion under RFRA. See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 114 (D.D.C. 2012). But see Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013).
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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) (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); Anselmo v. Cnty. of Shasta, 873 F. Supp. 2d 1247, 1255 (E.D. Cal. 2012). Because RFRA incorporates Free Exercise jurisprudence, the same logic applies. See Holy Land Found., 333 F.3d at 167. In short, only a religious organization can “exercise religion” under RFRA.
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 such as Chevrolet cannot permissibly discriminate on the basis of religion in hiring or firing employees or otherwise establishing the terms and conditions of 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.” Id. § 2000e-1(a). It is clear that Chevrolet does not qualify as a “religious corporation.” See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007); Spencer v. World Vision, Inc., 633 F.3d 723, 734, 748 (9th Cir. 2011).
It would be extraordinary to conclude that Chevrolet is not a “religious corporation” under Title VII (and it clearly is not) and thus cannot discriminate in employment on the basis of religion, 42 U.S.C. § 2000e-1(a), but nonetheless “exercise[s] . . . religion” within the meaning of RFRA, id. § 2000bb-1(b). Such a conclusion would allow a secular corporation to impose its owner’s religious beliefs on its employees in a way that denies those employees the protection of
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general laws designed to protect their health and well-being. A host of laws and regulations would be subject to attack. Moreover, any secular corporation 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.
It is significant that Mr. Holland elected to organize Chevrolet 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 & 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 owner’s personal religious beliefs on its employees by refusing to cover certain contraceptive services. Lee, 455 U.S. at 261.
2. The regulations do not substantially burden Mr. Holland’s religious exercise because the regulations apply only to Chevrolet, a separate and distinct legal entity
The regulations also do not substantially burden Mr. Holland’s religious exercise. By their terms, the regulations apply to group health plans and health insurance issuers. See, e.g., 45 C.F.R. § 147.130. Mr. Holland is neither. Nonetheless, Mr. Holland claims that the regulations substantially burden his religious exercise because the regulations require the group health plan sponsored by his for-profit secular company to provide health insurance that includes certain contraceptive coverage. But a plaintiff cannot establish a substantial burden on his religious
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exercise by invoking this type of trickle-down theory. Indeed, cases that find a substantial burden uniformly involve a direct burden on the plaintiff rather than a burden imposed on another, legally separate, entity. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993); Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009).
Mr. Holland’s theory boils down to the claim that what’s done to the corporation (or group health plan sponsored by the corporation)5 is also done to its owner. But, as a legal matter, that is simply not so. Mr. Holland has chosen to enter into commerce and elected to do so by establishing a for-profit, secular corporation, which is a separate legal entity, unique from its officers, directors, and shareholders. Laya v. Erin Homes, Inc., 352 S.E.2d 93, 97 (W. Va. 1986). 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). As a West Virginia corporation, Chevrolet has broad powers to conduct business, acquire property, and enter into contracts, among others. See W. Va. Code § 31D-3-302. The company’s owners in turn are generally not liable for the corporation’s debts. Laya, 352 S.E.2d at 97. 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, 533 U.S. at 163.
“It is considered a fundamental rule that [a] shareholder – even the sole shareholder – does not have standing to assert claims alleging wrongs to the corporation.” Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) (quotations omitted). Mr. Holland “‘may not move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.’” Potthoff v. Morin, 245 F.3d 710, 717 (8th Cir. 2001). “So long as the business’s liabilities are not [Mr. Holland’s] liabilities –
5 The attenuation here is in fact twice removed, as a group health plan is a legally separate entity from the company that sponsors it. 29 U.S.C. § 1132(d).
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which is the primary and ‘invaluable privilege’ conferred by the corporate form, Torco Oil Co. v.
Innovative Thermal Corp., 763 F. Supp. 1445, 1451 (N.D. Ill. 1991) (Posner, J., sitting by
designation) – neither are the business’s expenditures [Mr. Holland’s] own expenditures.” Grote,
708 F.3d at 858 (Rovner, J., dissenting). The money used to pay for health coverage under
Chevrolet’s group health plan “belongs to the company, not to [Mr. Holland].” Id. Mr. Holland
should not be permitted to eliminate the legal separation between the corporation and its owner
only when it suits him to impose his personal religious beliefs on the corporate entity’s group
health plan or its employees. See Smith Setzer, 20 F.3d at 1317-18 (refusing to “discard the
separate entity doctrine” because doing so would “vitiate the established rule against corporate
standing in its entirety, while disregarding settled theory of corporate law”). For this reason, numerous courts have rejected RFRA challenges nearly identical to Mr. Holland’s claim.6
A contrary view would expand RFRA’s scope in an extraordinary way. All corporations
act through human agency; but that cannot mean that any legal obligation imposed on a
corporation is also the obligation of the owners or that the owners’ and corporation’s rights and
responsibilities are coextensive. If that were the rule, any of the millions of shareholders of
publicly traded companies could assert RFRA claims on behalf of those companies and thereby
impose the owners’ or shareholders’ beliefs on the companies’ employees in a way that deprives
6 See Conestoga, 2013 WL 3845365, at *8 (rejecting owners’ RFRA claim because the contraceptive coverage requirement “does not impose any requirements on the [owners]. Rather, compliance is placed squarely on [the company],” – “a distinct legal entity that has legally distinct rights and responsibilities”); MK Chambers Co. v. HHS, 2013 WL 1340719, at *4 (E.D. Mich. Apr. 3, 2013); Eden Foods, 2013 WL 1190001, at *4; Gilardi, 2013 WL 781150, at *4-5, 9-10; Briscoe, 2013 WL 755413, at *5-6; Conestoga, 917 F. Supp. 2d at 408-09; Autocam, 2012 WL 6845677, at *7; Korte, 912 F. Supp. 2d at 748; Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1293-96 (W.D. Okla. 2012), reversed on other grounds, 2013 WL 3216103 (10th Cir. June 27, 2013).
On the other hand, the courts to have ruled against defendants in cases similar to this one have uniformly ignored or disregarded the legal separation between corporations and their owners. A company and its owners, however, cannot be treated as alter-egos for some purposes and not others; if the corporate veil is pierced, it is pierced for all purposes. See, e.g., Conestoga, 2013 WL 3845365, at *8 (“as the [owners] have decided to utilize the corporate form, they cannot move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms.” (quotation omitted); Nautilus Ins. Co. v. Reuter, 537 F.3d 733, 738 (7th Cir. 2008); Korte, 912 F. Supp. 2d at 748; Autocam, 2012 WL 6845677, at *7 (“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.”); Conestoga, 917 F. Supp. 2d at 408; Grote, 708 F.3d 850, 856 (Rovner, J., dissenting).
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those employees of legal rights they would otherwise have, such as by discriminating against the company’s employees on the basis of religion in establishing the terms and conditions of employment notwithstanding the limited religious exemption that Congress established under Title VII. 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 employment, 42 U.S.C. § 2000e-1(a).
3. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden
Although the regulations do not require Chevrolet or its owner to provide contraceptive services directly, plaintiffs’ complaint appears to be that, through Chevrolet’s health plan and the benefits it provides to employees, plaintiffs will facilitate conduct (the use of certain contraceptives) that they find objectionable. But this complaint has no limits. A company provides numerous benefits, including a salary, to its employees and by doing so in some sense facilitates whatever use its employees make of those benefits. But the owner has no right to control the choices of his company’s employees, who may not share his religious beliefs, when making use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
The challenged regulations result in only an indirect and de minimis impact on Chevrolet and its owner. “A series of events must first occur before the actual use of [contraception] would come into play.” Conestoga, 917 F. Supp. 2d at 414-15, aff’d on other grounds, 2013 WL 3845365. “These events include: the payment for insurance to a group health insurance plan that will cover contraceptive services (and a wide range of other health care services); [contraception] must be made available to [the company’s] employees through a pharmacy or other healthcare facility; and a decision must be made by [an employee] and her doctor, who may or may not choose to avail themselves of these services.” Id. at 415. In short, “[t]he burden of which
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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 . . . subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion.” O’Brien v. HHS, 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012). Such an indirect and de minimis impact, which is no greater than the company’s payment of salaries to its employees that those employees can also use to purchase contraceptives, does not rise to the level of a substantial burden. See Conestoga, 917 F. Supp. 2d at 414; Grote, 708 F.3d at 861 (Rovner, J., dissenting) (“To the extent this burdens the Grotes’ religious interests, it is worth considering whether the burden is different in kind from the burden of knowing that an employee might be using his or her Grote Industries paycheck (or money in a health care reimbursement account) to pay for contraception him or herself.”); Autocam, 2012 WL 6845677, at *6 (W.D. Mich.) (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”).
Indeed, “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.” O’Brien, 894 F. Supp. 2d at 1159. RFRA “is not a means to force one’s religious practices upon others. [It] does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.” Id. For these reasons, any burden imposed by the challenged regulations is not substantial within the meaning of RFRA.7
7 See also Grote, 708 F.3d 850 (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001, at *4; Annex Med., Inc. v. Sebelius, 2013 WL 101927, at *4-5 (D. Minn. Jan. 8, 2013), appeal pending, No. 131118 (8th Cir. Jan. 11, 2013); Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 950-52 (S.D. Ind. 2012), appeal pending, No. 13-1077 (7th Cir. Jan. 9, 2013).
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B. Even If There Were A Substantial Burden On Religious Exercise, The Regulations Survive Strict Scrutiny

1. inte

The regulations significantly advance compelling governmental rests in public health and gender equality

“[T]he 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, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th

Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this compelling interest. The 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. 41,726, 41,733 (July 19, 2010);

see also 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012). “By 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.

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 v. United States Jaycees, 468 U.S. 609, 626 (1984), 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.” Thus, “[a]ssuring women

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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 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); IOM REP. at 19-20. 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, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
Of course, the government’s interest in ensuring access to contraceptive services is particularly compelling for women employed by companies that want to eliminate such coverage, like Chevrolet. Taking into account the “particular claimant whose sincere exercise of religion is [purportedly] being substantially burdened,” O Centro, 546 U.S. at 420, exempting Chevrolet and other similar companies from the obligation of their health plans to cover contraceptive services without cost-sharing would remove its 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 violence to the rationale on which the benefit is dispensed in the first instance.”). Plaintiffs’ desire not to provide a health plan that permits Chevrolet’s employees to exercise their own
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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 its owner’s 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”).
Plaintiffs claim that the interests underlying the regulations cannot be considered compelling when millions of people are exempted from the regulations at the moment. See Am. Compl. ¶¶ 42, 62. But this is not a case where underinclusive enforcement of a law suggests that the government’s “supposedly vital interest” is not really compelling. Lukumi, 508 U.S. at 54647. First, 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 – specifically, the interest in spreading the benefits of the ACA 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). This incremental transition does nothing to call into question the compelling interests furthered by the regulations. 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 75 Fed. Reg. 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 from the regulations that 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 offers no support for such an untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T]he grandfathering rule seems to be a reasonable plan for instituting an incredibly complex
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health care law while balancing competing interests.”), appeal docketed, No. 13-1092 (6th Cir. Jan. 24, 2013).
Second, 26 U.S.C. § 4980H(c)(2) does not exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. 46,621, 46,622 n.1 (Aug. 3, 2011). 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. See 26 U.S.C. § 4980H(c)(2). Small businesses that choose to offer nongrandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing.
The only true exemption from the regulations is the exemption for religious employers. 78 Fed. Reg. at 39,896. But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874.
The same is not true for Chevrolet, which cannot discriminate based upon religious beliefs in hiring, and therefore almost certainly employs many individuals who do not share Mr. Holland’s religious beliefs. If courts were to grant plaintiffs’ request to extend the protections of RFRA to any employer whose owners or shareholders object to 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
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every conceivable religious preference,” Braunfeld v. Brown, 366 U.S. 599, 606 (1961), 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 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. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003).

2. The regulations are the least restrictive means of advancing the

governm

ent’s compelling 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, e.g., United States v.

Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). The government is not required “to do the

impossible – refute each and every conceivable alternative regulation scheme.” Id. at 1289.

Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.

In their withdrawn motion for a preliminary injunction, plaintiffs vaguely proposed “tax

credits, deductions, or other similar tax incentives” as a purportedly less restrictive means of

achieving the government’s compelling interests. But, just because plaintiffs can imagine an

entirely new legislative scheme does not make that scheme a feasible less restrictive means. See

Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir.

1999). As an initial matter, defendants lack statutory authority to implement plaintiffs’ proposal.

The ACA requires that recommended preventive services be covered without cost-sharing through the

existing employer-based system, and thus, defendants are constrained by statute from adopting plaintiffs’

non-employer-based alternative.

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Moreover, plaintiffs in effect 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 scheme. 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 Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 947 (1st Cir. 1989); Graham, 822 F.2d at 852. Plaintiffs’ alternative would impose considerable new costs and other burdens on the government and would otherwise be impractical. See United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life, 885 F.2d at 947.
Nor would plaintiffs’ proposed alternative be equally effective in advancing the government’s compelling interests. Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to utilize the existing employer-based system. See generally H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). The anticipated benefits of the challenged regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost sharing, 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’ alternative, on the other hand, has none of these advantages. It would require women to pay out of pocket for their care in the first instance and would not benefit women who do not have sufficient income to be required to file a tax return. Thus, it is less likely to achieve the compelling interests furthered by the regulations, and therefore does not represent a reasonable less restrictive means. II. THE COURT SHOULD DISMISS PLAINTIFFS’ FREE EXERCISE CLAIM
Plaintiffs’ free exercise claim fails at the outset because, as explained above, a for-profit, secular employer like Chevrolet does not engage in any exercise of religion protected by the First
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Amendment. But even if it did, the regulations are neutral laws of general applicability and therefore do not violate the Free Exercise Clause. That was precisely the holding of nearly every court to address this claim.8
The Supreme Court has made clear that a law that is neutral and generally applicable does not run afoul of 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. Emp’t Div., Dep’t of Human Res. Of Or. v. Smith, 494 U.S. 872, 879 (1990). “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at 533. A neutral law has as its purpose something other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive services coverage regulations are neutral and generally applicable. “The regulations were 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, 894 F. Supp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medicine that the purpose of the [regulations] is not to target
8 See MK Chambers, 2013 WL 1340719, at *5; Eden Foods, 2013 WL 1190001, at *5; Briscoe, 2013 WL 755413, at *6-7; Conestoga, 917 F. Supp. 2d at 409-10; Grote, 914 F. Supp. 2d at 952-53; Autocam, 2012 WL 6845677, at *5 (W.D. Mich.); Korte, 912 F. Supp. 2d at 744-47; Hobby Lobby, 870 F. Supp. 2d at 1289-90, rev’d on other grounds, 2013 WL 3216103; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87 (same). But see Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, 2013 WL 838238, at *24-26 (W.D. Penn. Mar. 6, 2013).
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religion, but instead to promote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53 (S.D. Ind. 2012).
The regulations, moreover, do not pursue their purpose “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach without regard to whether the conduct was religiously motivated” was generally applicable). The regulations apply to all non-grandfathered health plans that do not qualify for the religious employer exemption or the accommodations for certain non-profit religious organizations. Thus, “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) (quotation omitted); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5. Thus, plaintiffs’ free exercise claim fails.9
III. THE COURT SHOULD DISMISS PLAINTIFFS’ FREE SPEECH AND EXPRESSIVE ASSOCIATION CLAIMS Plaintiffs’ free speech claim fares no better, as every court to address this claim has
rejected it.10 The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the challenged regulations do not require plaintiffs – or any other person, employer, or entity – to say anything. Nor is the conduct required by the regulations “inherently expressive,” id. at 66, such that it is entitled to First Amendment protection. See, e.g., Autocam, 2012 WL 6845677, at *8 (“Including contraceptive coverage in a health care plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Giving or receiving health care is not a statement in the same sense as wearing a black armband or burning an American flag.” (internal citations omitted)). Finally, the regulations “do not require funding of
9 Even if the regulations were not neutral or generally applicable, they would not violate the Free Exercise Clause because they satisfy strict scrutiny. See supra.
10 See MK Chambers, 2013 WL 1340719, at *6; Briscoe, 2013 WL 755413, at *8; Conestoga, 917 F. Supp. 2d at 418-19; Grote, 914 F. Supp. 2d at 954-55; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465.
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one defined viewpoint.” O’Brien, 894 F. Supp. 2d at 1166. The regulations require that employers offer a health plan that includes coverage for contraceptive services and “patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. See HRSA Guidelines, supra. The regulations do not purport to regulate the content of the education or counseling provided or require utilization of any particular services – that is between the patient and her health care provider. Taken to its logical conclusion, “plaintiffs’ theory would mean that an employer’s disagreement with the subject of a discussion between an employee and her physician would be a basis for precluding all government efforts to regulate health coverage.” O’Brien, 894 F. Supp. 2d at 1166. The regulations govern conduct, not speech, and thus, plaintiffs’ free speech claim fails.
Plaintiffs’ expressive association claim is similarly flawed. The regulations do not interfere in any way with the composition of Chevrolet’s workforce. Compare 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); Roberts, 468 U.S. at 623 (concluding statute that forced group to accept women against its desires was subject to strict scrutiny). The regulations do not force Chevrolet to hire employees it does not wish to hire (although Title VII prohibits the company from religious discrimination in hiring because it is not a religious corporation). Mr. Holland and Chevrolet, moreover, are free to associate to voice their disapproval of the use of contraception and the regulations. Even 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. The preventive services coverage regulations do not even implicate plaintiffs’ right. See Diocese of Albany, 859 N.E. 2d at 465 (upholding similar state law because it “does [not] compel [plaintiffs] to associate, or prohibit them from associating, with anyone”).
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Respectfully submitted this 23rd day of August, 2013,

IAN R. United JENNIFER SHEILA Deputy
Trial United Civil
Attorneys

STUART F. DELERY Assistant Attorney General

HEATH GERSHENGORN Deputy Assistant Attorney General

BOOTH GOODWIN II States Attorney

RICKETTS Director

M. LIEBER Director

s/Stephen M. Horn

_

Assistant United States Attorney

WV State Bar No. 1788

United States Attorney’s Office

P.O. Box 1713

Charleston, WV 25326

Phone: 304-345-2200

Fax: 304-347-5443

E-mail: steve.horn@usdoj.gov

_s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050)
Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov

for Defendants.

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Case 2:13-cv-15487 Document 32 Filed 08/23/13 Page 23 of 23 PageID #: 353 CERTIFICATE OF SERVICE
I hereby certify that on August 23, 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/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney
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 Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 1 of 18 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

JOSEPH B. HOLLAND, JR.; and JOE HOLLAND CHEVROLET, INC., a West Virginia Corporation,
Plaintiffs,
v.

Civil Action No. _2_:__1_3_-_c_v__-_15487

THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THE UNITED STATES DEPARTMENT OF LABOR; SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor; THE UNITED STATES DEPARTMENT OF THE TREASURY; and JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury,
Defendants.
VERIFIED COMPLAINT
COME NOW the Plaintiffs, Joseph B. Holland, Jr. (“Mr. Holland”) and Joe Holland
Chevrolet, Inc. (“Holland Chevrolet”), by and through their undersigned counsel, and state their
Complaint against the Defendants as set forth below.
INTRODUCTION
This is an action seeking declaratory and injunctive relief to protect the Plaintiffs from
certain unlawful and unconstitutional requirements of the Patient Protection and Affordable Care
Act of 2010 (Pub. L. 111-148, 124 Stat. 119 (2010)), the Health Care and Education
Reconciliation Act (Pub. L. 111-152, 124 Stat. 1029 (2010)), and certain provisions of the

{R0811635.1}

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 2 of 18 PageID #: 2
implementing regulations found in Title 45 of the Code of Federal Regulations (collectively “the ACA”) that force Holland Chevrolet to include in their group health insurance plan coverage for drugs that induce abortion (“abortifacient drugs”) and contraceptive counseling, which includes discussion of the use and availability of abortifacient drugs (referred to hereafter as “abortionrelated counseling”) (collectively “the Government Mandate”). This Mandate deprives Plaintiffs of their fundamental right to practice their sincere and deeply held religious beliefs as protected by the First Amendment of the United States Constitution and the Religious Freedom Restoration Act, 42 U.S.C §§ 2000bb et seq.(“RFRA”) and violates their First Amendment rights to freedom of speech and freedom of association.
IDENTIFICATION OF PARTIES 1. Mr. Holland is a United States citizen and a resident of Kanawha County, West Virginia. 2. Holland Chevrolet is a West Virginia corporation with its principal place of business located in South Charleston, West Virginia. It is a closely-held corporation engaged primarily in the business of selling and servicing motor vehicles. 3. Holland Chevrolet is a C-Corporation. Mr. Holland owns 91% of Holland Chevrolet’s stock and the remaining stock is held in trust by the Joseph B. Holland, Sr. Trust, of which Mr. Holland is Trustee. 4. Holland Chevrolet provides group medical insurance coverage to approximately 150 full-time employees. 5. Mr. Holland is president of Holland Chevrolet and chairman of its board of directors. Accordingly, Mr. Holland would be responsible for implementing Holland Chevrolet’s compliance with the Government Mandate.
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6. The Defendants are Executive Branch agencies of the United States government and appointed officials of those agencies responsible for implementing and enforcing the Government Mandate.
7. Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”) and is sued in her official capacity only.
8. Seth D. Harris is the Acting Secretary of the United States Department of Labor (“DOL”) and is sued in his official capacity only.
9. Jacob J. Lew is the Secretary of the Department of the Treasury (“the Treasury”) and is sued in his official capacity only.
10. HHS, DOL, and the Treasury each have responsibilities for promulgating regulations implementing the ACA and for administering and enforcing its provisions, including the Government Mandate.
JURISDICTION AND VENUE 11. This action arises under the Constitution and laws of the United States. The United States District Court for the Southern District of West Virginia has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1346 and 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 12. Venue is in the United States District Court for the Southern District of West Virginia pursuant to 28 U.S.C. §1391. A substantial part of the events or omissions giving rise to the claim occurred in this district and the Plaintiffs are located in this district.
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NATURE OF THE CASE 13. This is an action seeking declaratory and injunctive relief from the Defendants’ violations of RFRA and the First Amendment to the United States Constitution (collectively, “the Applicable Laws”). 14. The Defendants have violated or will violate the Applicable Laws by implementing the ACA in ways that coerce the Plaintiffs to abandon or act in derogation of their sincere and most deeply held religious beliefs. 15. Mr. Holland is a believing and practicing born-again Christian. He is resolved, as a matter of religious belief, to conduct all aspects of his life, including the management of Holland Chevrolet, in accordance with God’s Word. One of Mr. Holland’s sincerely held religious beliefs is that all innocent human life is sacred to its Creator and that it is profoundly immoral to procure, facilitate, fund, or endorse any form of abortion. 16. In Mr. Holland’s ownership and management of Holland Chevrolet, he regards it as his religious duty to operate the business in conformity with his religious beliefs. Holland Chevrolet, as a cognizable legal person, embraces and conducts itself in accordance with the same religious principles that animate its president, chairman of the board, and principal stockholder. In Mr. Holland’s view, his right to free exercise of religion should not be limited by the form in which he elects to do business. 17. The Plaintiffs believe that they would be complicit in violation of the Sixth Commandment of the Bible (“Thou Shalt Not Kill”) if they provide the insurance coverage required by the Government Mandate (“the Objectionable Coverage”). Heretofore, the Plaintiffs have not included the Objectionable Coverage in the health insurance coverage that is provided to the employees of Holland Chevrolet. The current term of that health insurance coverage runs
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through June 30, 2013; the new plan year for the insurance will commence July 1, 2013 and, absent relief from this Court, the plan will then be subject to the Government Mandate.
18. The Defendants have full knowledge that many individuals and organizations have the same or similar strongly held beliefs as the Plaintiffs. Nonetheless, the Defendants have issued regulations imposing the Government Mandate on such citizens and organizations and requiring them to provide the Objectionable Coverage.
19. In issuing such regulations, the Defendants have knowingly violated the rights of the Plaintiffs and many other individuals and organizations to adhere to their religious convictions and to act in accordance with them.
20. The Government Mandate unlawfully and unconstitutionally coerces the Plaintiffs to violate their sincerely held religious beliefs under the threat of severe penalties.
21. The Government Mandate also forces the Plaintiffs to endorse speech that contravenes their own religious beliefs and values that they strive to promote in their business.
22. The Defendants have granted many exemptions from requirements of the ACA to various entities, including large corporations and labor unions and various entities with “grandfathered” employer group health plans. The Defendants have also granted exemptions to certain religious entities, but have failed to exempt many other religious entities and religiously observant individuals and entities. The Defendants’ exemption of some religious entities, and entities without any distinctive religious beliefs, and failure to accommodate the religious beliefs of individuals and entities such as the Plaintiffs, is highly selective and discriminatory.
23. The Defendants’ actions violate the Plaintiffs’ rights to exercise freely their religion as protected by RFRA and the First Amendment to the United States Constitution.
24. The Defendants’ actions violate the Plaintiffs’ rights to freedom of speech and freedom of association, as secured by the First Amendment to the United States Constitution.
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25. The Plaintiffs are imminently faced with irreparable harm due to the Government Mandate, which requires them to provide the Objectionable Coverage for the group medical insurance plan year beginning July 1, 2013. The Plaintiffs must now coordinate and arrange for the details of that plan. Plaintiffs therefore will suffer irreparable harm, unless the Court grants declaratory and injunctive relief to prevent the Defendants’ deliberate infringement of their right to enter into a contract of insurance which does not include the Objectionable Coverage.
FACTUAL ALLEGATIONS I. The Plaintiffs’ Religious Beliefs and Actions.
26. Mr. Holland experienced a religious conversion in 1996 and became a believing and practicing born-again Christian.
27. In addition to weekly attendance at Maranatha Fellowship Church, Mr. Holland participates in many religious activities as part of his day-to-day life, including the following: he attends a weekly men’s group Bible study, which was started in 1996; he supports youth ministries such as the Silver Ring Ministry, which promotes pre-marital sexual abstinence; he participates in Life Chain, a pro-life religious ministry; and he delivers religious readings on Christian radio.
28. The Plaintiffs believe that the Bible is the inspired, infallible, and authoritative Word of God. The Plaintiffs believe that the Bible reveals the principles by which God expects human beings to conduct themselves in all aspects of their lives, including their jobs and business dealings.
29. The Plaintiffs believe that Holland Chevrolet should serve as a form of religious ministry and witness to the truth of God’s Word. In observation of the commandment to “Remember the Sabbath day and keep it holy,” Holland Chevrolet is closed on Sundays. Holland Chevrolet’s website emphasizes as part of the corporation’s mission statement the duty
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“to glorify and honor God by being faithful stewards for all that is entrusted to us.” Holland Chevrolet’s signage and other business imagery feature in their design the ichthus (the ancient symbol of the Christian faith). Holland Chevrolet includes among the beneficiaries of its corporate giving various Christian causes such as the Fellowship of Christian Athletes. Holland Chevrolet employs a chaplain.
30. Based upon the teachings of the Bible generally, and the Sixth Commandment in particular, the Plaintiffs believe that God abhors and condemns the intentional destruction of innocent human life.
31. The Plaintiffs believe that God commands respect for the sanctity of all innocent human life, including the lives of the unborn.
32. The Plaintiffs believe that, according to God’s Word, human life begins at conception and that it must be treated with dignity, respect, and protection from the moment of conception onward.
33. The Plaintiffs believe the category of FDA approved contraceptive methods and procedures in the Government Mandate include abortifacient drugs that cause and/or potentially cause the destruction of human embryos.
34. The Plaintiffs believe that it would violate the Sixth Commandment for them to engage in any manner in the facilitation or endorsement of abortion. Consequently, it would be sinful and contrary to their religious principles to provide the Objectionable Coverage to the employees of Holland Chevrolet. The Plaintiffs believe that running Holland Chevrolet in accordance with the teachings of the Bible is a ministry to its employees, its customers, and the community of which it is a part. They believe that this ministry would be undermined by compliance with the Government Mandate and that providing the Objectionable Coverage would violate God’s Word and would contravene the message of their ministry.
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Holland Chevrolet’s Health Insurance Plan 35. Consistent with their religious beliefs and duties as faithful stewards, the Plaintiffs have provided and wish to continue to provide a generous health care plan (“the Plan”) to the employees of Holland Chevrolet. 36. Since Holland Chevrolet employs approximately 150 full-time employers, it is subject to the Government Mandate. 37. Consistent with the Plaintiffs’ religious beliefs, the Plan has never included the Objectionable Coverage. 38. In implementing the Plan for a new plan year beginning July 1, 2013, the Plaintiffs must either comply with the Government Mandate and provide the Objectionable Coverage in violation of their religious convictions or face the imposition of severe penalties for failure to do so. 39. In order to avoid both of those unacceptable alternatives, the Plaintiffs apply to the Court for vindication of their right to offer the employees of Holland Chevrolet a generous Plan that does not violate the Plaintiffs’ religious principles.
The ACA and the Government Mandate 40. In March 2010, the Patient Protection and Affordable Care Act was enacted. Shortly thereafter it was amended by the Health Care and Education Reconciliation Act. 41. Under the ACA, employers with over 50 full-time employees are required to provide a certain minimum level of health insurance to their employees. 42. Nearly all such plans must include the Objectionable Coverage as part of the “preventive services” which must be offered with no cost-sharing by the employee. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §2713, 124 Stat. 119-1025 (2010).
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43. The ACA specifically requires 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 Department of Health and Human Services to determine what would constitute preventive care under the ACA mandates. Id. at §2713(a)(4).
44. On July 19, 2010, HHS, along with the Treasury and DOL, published an interim final rule under the ACA. The interim final rule required providers of group health insurance to provide certain preventive care as specified in guidelines to be published by the Health Resources and Services Administration (“HRSA”) at a later date. 75 Fed. Reg. 41759 (2010)
45. On August 1, 2011, HHS, along with the Treasury and DOL, promulgated an interim final rule that includes the Government Mandate, which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. §147.130.
46. On February 10, 2012, HHS promulgated a final rule (“the Final Rule”), which included the Government Mandate. See 45 CFR §147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting HRSA Guidelines, (http://www.hrsa.gov/womensguidelines, last visited June 7, 2013).
47. The category of “Food and Drug Administration (“FDA”) approved contraceptive methods and procedures” in the Government Mandate includes several abortifacient drugs that may cause the demise of an already-conceived but not-yet implanted human embryo, such as “emergency contraception” or “Plan B” drugs (the so-called “morning after pill”). HRSA Guidelines, (http://www.hrsa.gov/womensguidelines, last visited June 7, 2013).
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48. The FDA approved in this same category a drug called “ella” (the so-called “week after pill”), which can function to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
49. The manufacturers of some such drugs in the category of “FDA-approved contraceptive methods and procedures” indicate that they can function to cause the demise of an early human embryo.
50. The Government Mandate also requires group health care plans to pay for the provision (to all female beneficiaries who are capable of bearing children) of counseling, education, and other information concerning contraception (including abortifacient drugs and abortion-related counseling).
51. The Government Mandate applies to the first health insurance plan year beginning after August 1, 2012.
52. Absent relief from this Court, the Plaintiffs will be subject to the Government Mandate’s requirement to provide the Objectionable Coverage starting in their July 1, 2013 Plan.
53. The Government Mandate makes only an arbitrary, selective, and discriminatory allowance for certain aspects of the religious freedom of certain entities and individuals, and no allowance at all for the religious freedom of the Plaintiffs, who object to providing the Objectionable Coverage.
54. The ACA imposes severe penalties if the Plaintiffs continue to offer their Plan without inclusion of the Objectionable Coverage.
55. The exact magnitude of these penalties may vary according to the complex provisions of the ACA, but the basic monetary penalty is approximately $100 per day, per employee, with minimum amounts applying under certain circumstances.
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56. If the Plaintiffs do not comply with the Government Mandate they also trigger a range of enforcement mechanisms that exist under ERISA, including civil actions by the Secretary of Labor or by plan participants and beneficiaries, which could entail additional penalties.
57. The Final Rule 45 C.F.R. § 147.130(a)(1)(iv)(B)(2010); 76 Fed. Reg. 46626 (Aug. 3, 2011) offers the possibility of a narrow exemption to certain religious employers, but only if they meet all of the following requirements:
a) “The inculcation of religious values is the purpose of the organization”; b) “The organization primarily employs persons who share the religious tenets of
the organization”; c) “The organization serves primarily persons who share the religious tenets of
the organization”; and d) The organization is a church, an integrated auxiliary of a church, a convention
or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A). 58. Due to the narrowness of the exemption, it is unavailable to the Plaintiffs. The Final Rule imposes no constraint on the government’s discretion to grant exemptions to some, all, or none of the organizations meeting the definition of “religious employers.” 59. The Final Rule fails to protect the statutory and constitutional religious freedom rights of employers such as the Plaintiffs even though those rights were repeatedly raised in the public comments submitted before the February 10, 2012 promulgation of the Final Rule. 60. The Government Mandate requires the Plaintiffs to provide the Objectionable Coverage in violation of their religious beliefs, in a manner that is contrary to law. The Government Mandate coerces the Plaintiffs to abandon or act in derogation of their sincerely held religious beliefs.
11

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 12 of 18 PageID #: 12
61. The Government Mandate exposes the Plaintiffs to severe penalties for refusal to abandon or act in derogation of their religious beliefs.
62. Any alleged interest the Defendants have in insisting on making the Objectionable Coverage available to employees could be advanced through other, more narrowly tailored measures that do not burden the Plaintiffs’ exercise of their right to religious freedom.
63. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief issued before July 1, 2013 the Plaintiffs will suffer irreparable harm.
64. The Plaintiffs have no adequate remedy at law. COUNT I
Violation of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb
65. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Complaint.
66. The Plaintiffs’ sincerely held religious beliefs do not allow them to provide the Objectionable Coverage in the Plan.
67. The Plaintiffs engage in the exercise of religion within the meaning of RFRA. 68. The Government Mandate imposes substantial burdens on the Plaintiffs’ exercise of religion and coerces them to violate their sincerely held religious beliefs. 69. The Government Mandate exposes the Plaintiffs to severe penalties for their religious exercise, including penalizing them for providing a Plan that does not include the Objectionable Coverage. 70. The Government Mandate chills and deters the Plaintiffs’ religious exercise within the meaning of RFRA.
12

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 13 of 18 PageID #: 13
71. The Government Mandate furthers no compelling governmental interest and is not narrowly tailored to further any such interest.
72. The Government Mandate is not the least restrictive means of furthering the Defendants’ interests.
73. The Government Mandate violates RFRA. COUNT II
Violation of the Free Exercise Clause of the First Amendment to the United States Constitution
74. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Complaint.
75. The Plaintiffs’ sincerely held religious beliefs prohibit them from providing the Objectionable Coverage as part of the Plan.
76. The Plaintiffs engage in the exercise of religion within the meaning of the Free Exercise Clause of the First Amendment.
77. The Government Mandate imposes substantial burdens on the Plaintiffs’ religious exercise and coerces them to abandon or act in derogation of their sincerely held religious beliefs.
78. The Government Mandate exposes the Plaintiffs to severe penalties for their religious exercise.
79. The Government Mandate chills and deters the Plaintiffs’ religious exercise within the meaning of the Free Exercise Clause.
80. The Final Rule is not neutral and is not generally applicable. 81. The Defendants have created categorical exemptions and individualized exemptions to the Final Rule.
13

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 14 of 18 PageID #: 14
82. The Government Mandate furthers no compelling governmental interest and is not narrowly tailored to further any such interest.
83. The Government Mandate is not the least restrictive means of furthering the Defendants’ interest.
84. The Government Mandate violates Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
COUNT III Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 85. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Complaint. 86. The Plaintiffs wish to exercise their free speech rights to express a consistent religious-based pro-life message to their employees, their business associates and contacts, and the community in which they do business. 87. The Government Mandate unconstitutionally burdens the Plaintiffs’ rights to speak or not to speak in accordance with their own religious beliefs and to advance the truth as they see it. 88. The Government Mandate violates the Plaintiffs’ First Amendment free speech rights by requiring them to provide the Objectionable Coverage, thus coercing and enlisting them into affirmatively communicating the Government’s message in contradiction of their own beliefs. The Government Mandate forces the Plaintiffs to support the Government’s viewpoint about the morality of abortion-related activities.
14

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 15 of 18 PageID #: 15
89. The Government Mandate imposes a requirement on the Plaintiffs to support conduct that substantially burdens and undermines the Plaintiffs’ ability to express and advocate effectively their own contrary views.
90. The Defendants are requiring the Plaintiffs to convey one message when they comply with the Government Mandate, while the Plaintiffs are conveying another when they speak out against abortion, to the detriment of the credibility of their own speech. Such fractured messaging would make the Plaintiffs appear inconsistent, equivocal, or hypocritical and would impair the Plaintiffs’ message.
91. The Government Mandate’s compelled speech requirement furthers no compelling governmental interest and is not narrowly tailored to further any such interest.
92. The Government Mandate is not the least restrictive means of furthering the Defendants’ interests.
93. The Government Mandate violates the Plaintiffs’ rights to speak freely and to refrain from compelled speech secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
COUNT IV Violation of the Right to Freedom of Association under the First Amendment
to the United States Constitution 94. The Plaintiffs restate all allegations set forth in the preceding paragraphs of this Complaint. 95. The First Amendment to the United States Constitution safeguards the right of persons to associate by joining together to engage in expressive association. 96. The Plaintiffs and various of their employees engage in such expressive association in advancing and communicating their shared religious beliefs.
15

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 16 of 18 PageID #: 16
97. The Government Mandate imposes an unconstitutional burden on the Plaintiffs’ right to expressive association by restricting the shared ability of the Plaintiffs and their likeminded employees to express their views on abortion-related activities free of an obligation to endorse contrary views promoted by the Government Mandate.
98. The Government Mandate’s restriction of the right of the Plaintiffs and their likeminded employees to expressive association furthers no compelling governmental interest and is not narrowly tailored to further any such interest.
99. The Government Mandate is not the least restrictive means of furthering the Defendants’ interests.
100. The Government Mandate violates the Plaintiffs’ right of expressive association secured to them by the First Amendment to the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Joseph B. Holland, Jr. and Joe Holland Chevrolet, Inc. pray for the following relief: A. That this Court enter a judgment pursuant to 28 U.S.C. §2201, 2202 declaring the Government Mandate and its application to the Plaintiffs to be an violation of their rights protected by RFRA and the Free Exercise, Free Speech, and Free Association Clauses of the First Amendment to the United States Constitution; B. That this Court enter a temporary restraining order and a preliminary injunction prohibiting the Defendants during the course of this litigation from continuing to apply the Government Mandate in a way that substantially burdens the religious belief of the Plaintiffs in violation of RFRA and the Constitution, and prohibiting the Defendants from continuing to discriminate illegally against the Plaintiffs by requiring them to provide health insurance that includes the Objectionable Coverage;
16

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 17 of 18 PageID #: 17
C. That this Court enter a permanent injunction prohibiting the Defendants from
continuing to apply the Government Mandate in a way that substantially burdens the religious
beliefs of the Plaintiffs in violation of RFRA and the Constitution, and prohibiting the
Defendants from continuing to discriminate illegally against the Plaintiffs by requiring them to
provide health insurance providing the Objectionable Coverage;
D. That this Court award the Plaintiffs costs and reasonable attorneys’ fees, as
provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. §1988); and
E. That this Court grant all such other and further relief as maybe proper and just.
Respectfully submitted this 24th day of June, 2013.
JOSEPH B. HOLLAND, JR. JOE HOLLAND CHEVROLET, INC.
By Counsel
/s/ Allen R. Prunty Kent J. George (WV Bar #4842) William C. Porth (WV Bar #2943) Allen R. Prunty (WV Bar #2989) Brian E. Calabrese (WV Bar #12028) ROBINSON & MCELWEE, PLLC 700 Virginia Street, East Suite 400 Charleston, West Virginia 25301 (304) 344-5800 Telephone
Jeffrey C. Mateer Texas State Bar No. 13185320 Hiram S. Sasser, III Texas State Bar No. 24039157 LIBERTY INSTITUTE 2001 W. Plano Parkway, Suite 1600 Plano, Texas 75075 (972) 941–4444 – Telephone
Jeremiah G. Dys (WV Bar #9998) The Family Policy Council of WV P.O. Box 566 Charleston, WV 25322 (304)-881-5196
17

Case 2:13-cv-15487 Document 1 Filed 06/24/13 Page 18 of 18 PageID #: 18

 
 Case 2:13-cv-15487 Document 44 Filed 12/10/13 Page 1 of 2 PageID #: 683
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

JOSEPH B. HOLLAND, JR., et al., Plaintiffs,
v.

CIVIL ACTION NO. 2 :13-cv-15487

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

ORDER On December 10, 2013, the Court held a telephone conference with counsel concerning the United States Supreme Court’s November 26, 2013, grant of certiorari in Sebelius v. Hobby Lobby Stores, Inc., No. 13–354, 2013 W L 5297798 (U.S. Nov. 26, 2013 .) (granting petition for certiorari). T he Court asked counsel whether there was any reason why the Court should not stay this case pending the Supreme Court’s decision in Hobby Lobby. C ounsel for all parties agreed that a stay of this case pending the Supreme Court’s decision is appropriate. Accordingly, the Court STAYS this case pending the Supreme Court’s decision in Hobby

Case 2:13-cv-15487 Document 44 Filed 12/10/13 Page 2 of 2 PageID #: 684
Lobby and REMOVES this case from the Court’s active docket. IT IS SO ORDERED. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party. ENTER: December 10, 2013

 
 Case 2:13-cv-15487 Document 51 Filed 12/09/14 Page 1 of 3 PageID #: 792

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

__________________________________________

)

JOSEPH B. HOLLAND, JR., and

)

JOE HOLLAND CHEVROLET, INC.,

)

a West Virginia Corporation,

)

)

Civil Action No.

Plaintiffs,

)

2:13-cv-15487

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; SYLVIA M.

)

BURWELL, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF LABOR; THOMAS E.

)

PEREZ, in his official capacity as Secretary of the )

United States Department of Labor; UNITED

)

STATES DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official capacity as

)

Secretary of the United States Department of the )

Treasury,

)

)

Defendants.

)

__________________________________________)

JOINT MOTION FOR ENTRY OF INJUNCTION AND JUDGMENT
In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the parties jointly agree that judgment should be entered in favor of plaintiffs on their Religious Freedom Restoration Act claim, that a permanent injunction should be entered, that all other claims against defendants should be dismissed, and that the deadline for any petition by plaintiffs for attorneys’ fees or costs should be extended to 60 days after judgment is entered. Accordingly, the parties respectfully request that the Court enter the attached Injunction and Judgment, which has been agreed to by all parties.
Respectfully submitted this 9th day of December, 2014,

Case 2:13-cv-15487 Document 51 Filed 12/09/14 Page 2 of 3 PageID #: 793

Attorneys for Plaintiffs
/s/ Allen R. Prunty______________ Kent J. George (WV Bar #4842) William C. Porth (WV Bar #2943) Allen R. Prunty (WV Bar #2989) Brian E. Calabrese (WV Bar #12028) ROBINSON & MCELWEE, PLLC 700 Virginia Street, East – Suite 400 Charleston, West Virginia 25301 (304) 347-8307

Attorneys for Defendants

JOYCE R. BRANDA Acting Assistant Attorney General

R. BOOTH GOODWIN II United States Attorney

JENNIFER RICKETTS Director

SHEILA M. LIEBER Deputy Director

s/ Stephen M. Horn Assistant United States Attorney WV State Bar No. 1788 United States Attorney’s Office P.O. Box 1713 Charleston, WV 25326 Phone: 304-345-2200; Fax: 304-347-5443 E-mail: steve.horn@usdoj.gov

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT (CO Bar No. 37050)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue N.W. Room 7310

Washington, D.C. 20530

Tel: (202) 305-8902; Fax: (202) 616-8470

Email: michelle.bennett@usdoj.gov

2

Case 2:13-cv-15487 Document 51 Filed 12/09/14 Page 3 of 3 PageID #: 794 CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2014, 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/ Michelle R. Bennett MICHELLE R. BENNETT Trial Attorney
3

 
 Case 2:13-cv-15487 Document 52 Filed 05/29/15 Page 1 of 3 PageID #: 798

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

__________________________________________

)

JOSEPH B. HOLLAND, JR., and

)

JOE HOLLAND CHEVROLET, INC.,

)

a West Virginia Corporation,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; SYLVIA M.

)

BURWELL, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF LABOR; THOMAS E.

)

PEREZ, in his official capacity as Secretary of the )

United States Department of Labor; UNITED

)

STATES DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official capacity as

)

Secretary of the United States Department of the )

Treasury,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 2:13-cv-15487

INJUNCTION AND JUDGMENT ORDER In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon defendants’ consent, 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

Case 2:13-cv-15487 Document 52 Filed 05/29/15 Page 2 of 3 PageID #: 799
Court decided Hobby Lobby, that require plaintiff Joe Holland Chevrolet, Inc. to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff Joe Holland Chevrolet, Inc., its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Joe Holland Chevrolet, Inc.’s health insurance issuers and/or third-party administrators with respect to Joe Holland Chevrolet, Inc.’s health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys’ fees or costs shall be submitted on or before 60 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued; and it is further
2

Case 2:13-cv-15487 Document 52 Filed 05/29/15 Page 3 of 3 PageID #: 800

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: _0__D_\________

______________________________________
The Honorable Thomas E. Johnston United States District Judge

3

 
 Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 1 of 10
United States District Court Southern District of West Virginia (Charleston)
CIVIL DOCKET FOR CASE #: 2:13−cv−15487

CLOSED,LC−2

Holland et al v. United States Department of Health and Human Services et al Assigned to: Judge Thomas E. Johnston Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/24/2013 Date Terminated: 12/10/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Joseph B. Holland, Jr. and

represented by Allen R. Prunty ROBINSON & MCELWEE P. O. Box 1791 Charleston, WV 25326 304/344−5800 Fax: 304/344−9566 Email: arp@ramlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian E. Calabrese ROBINSON & MCELWEE P. O. Box 1791 Charleston, WV 25326 304/347−8344 Fax: 304/344−9566 Email: bec@ramlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hiram S. Sasser , III LIBERTY INSTITUTE Suite 1600 2001 West Plano Parkway Plano, TX 75075 972/941−4444 Fax: 972/423−6162 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey C. Mateer LIBERTY INSTITUTE Suite 1600 2001 West Plano Parkway Plano, TX 75075 972/941−4444 Fax: 972/423−6162 Email: jmateer@libertyinstitute.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremiah G. Dys P. O. Box 566 Charleston, WV 25322 304/881−5196 Email: jdys@firstliberty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent J. George

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 2 of 10

ROBINSON & McELWEE P. O. Box 1791 Charleston, WV 25326−1791 304/344−5800 Fax: 304/344−9566 Email: kjg@ramlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William C. Porth ROBINSON & McELWEE P. O. Box 1791 Charleston, WV 25326−1791 304/344−5800 Fax: 304/344−9566 Email: wcp@ramlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Joe Holland Chevrolet, Inc. a West Virginia Corporation

represented by Allen R. Prunty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian E. Calabrese (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hiram S. Sasser , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey C. Mateer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremiah G. Dys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kent J. George (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William C. Porth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
The United States Department of Health and Human Services

represented by Benjamin L. Berwick U. S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW Washington, DC 20530

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 3 of 10

202/305−8573 Fax: 202/616−8470 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett U. S. DEPARTMENT OF JUSTICE Room 7310 20 Massachusetts Avenue Washington, DC 20001 202/305−8902 Fax: 202/616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn U. S. ATTORNEY'S OFFICE P. O. Box 1713 Charleston, WV 25326−1713 304/345−2200 Fax: 304/347−5443 Email: Steve.Horn@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services

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

Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
The United States Department of Labor

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

Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 4 of 10

Seth D. Harris in his official capacity as Acting Secretary of the United States Department of Labor

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

Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
The United States Department of the Treasury and

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

Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jacob J. Lew in his official capacity as Secretary of the United States Department of the Treasury TERMINATED: 07/26/2013

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jacob Lew in his official capacity as Secretary of the United States Department of the Treasury

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

Michelle Renee Bennett (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen M. Horn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 5 of 10

The American Civil Liberties Union

represented by Daniel Mach AMERICAN CIVIL LIBERTIES UNION FOUNDATION 6th Floor 915 15th Street Washington, DC 20005 202/675−2330 Fax: 202/546−0738 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Lee AMERICAN CIVIL LIBERTIES UNION FOUNDATION 18th Floor 125 Broad Street New York, NY 10004 212/549−2633 Fax: 212/549−2651 Email: jlee@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Austin Rogers AMERICAN CIVIL LIBERTIES UNION OF WEST VIRGINIA FOUNDATION P. O. Box 3952 Charleston, WV 25311 304/345−9246 Fax: 304/345−0207 Email: srogers@acluwv.org ATTORNEY TO BE NOTICED

Amicus
The American Civil Liberties Union of West Virginia Foundation

represented by Daniel Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Lee (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Austin Rogers (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/24/2013 06/24/2013
06/24/2013

# Docket Text
1 VERIFIED COMPLAINT. Filing Fee $400.00. Receipt # 0425−2494946. (Attachment: # 1 Civil Cover Sheet) (jap) (Entered: 06/25/2013)
2 MOTION by Joseph B. Holland, Jr, and Joe Holland Chevrolet, Inc. for Temporary Restraining Order and Preliminary Injunction. (Attachment: # 1 Affidavit of Joseph B. Holland, Jr.) (jap) (Entered: 06/25/2013)
3 MEMORANDUM by Joseph B. Holland, Jr. , Joe Holland Chevrolet, Inc. in support of 2 MOTION for Temporary Restraining Order and Preliminary Injunction. (jap) (Entered: 06/25/2013)

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 6 of 10

06/24/2013 06/25/2013 06/25/2013 06/25/2013 06/26/2013 06/26/2013 06/28/2013
06/28/2013 06/28/2013 07/01/2013
07/01/2013 07/01/2013 07/01/2013 07/03/2013 07/05/2013

CASE assigned to Judge Thomas E. Johnston. (ras) (Entered: 06/25/2013)
4 STANDING ORDER IN RE: ASSIGNMENT AND REFERRAL OF CIVIL ACTIONS AND MATTERS TO MAGISTRATE JUDGES ENTERED APRIL 8, 2013. Discovery referred to Magistrate Judge Tinsley. (cc:attys; any unrepresented party) (jap)
5 ORDER Telephone Conference concerning 2 motion for a temporary restraining order set for 6/26/2013 at 10:00 AM in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 6/25/2013. (cc: attys; any unrepresented party) (tmr)
6 EMAIL NOTIFICATION to Hiram S. Sasser, III and Jeffrey C. Mateer with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements. (Attachments: # 1 Clerk's Notice) (jkk) (Entered: 06/26/2013)
7 EMAIL NOTIFICATION to Brian E. Calabrese with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements. (Attachments: # 1 Clerk's Notice) (jkk)
8 TELEPHONE STATUS CONFERENCE held by Judge Thomas E. Johnston on 6/26/2013; (slw)
9 MOTION by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to File Overlength Brief in Opposition to Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Bennett, Michelle)
10 CORPORATE DISCLOSURE STATEMENT by Joe Holland Chevrolet, Inc. (Prunty, Allen)
11 SUMMONS SUBMITTED by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. for Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, re: 1 Complaint (Prunty, Allen)
12 ELECTRONIC SUMMONS ISSUED as to United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Labor, Seth D. Harris, United States Department of the Treasury, Jacob J. Lew, re: 1 Verified Complaint. Summons returnable 60 days. Instructions to Counsel: This is your electronic summons. Please print as many copies of the Summons and Complaint as are necessary to effectuate service under Fed. R. Civ. P. 4. See Proof of Service page of this Summons form for filing a return of service if required by Fed. R. Civ. P. 4(l). (Attachments: # 1 Summons − Kathleen Sebelius, # 2 Summons − U.S. Department of Labor, # 3 Summons − Seth Harris, # 4 Summons − U.S. Department of the Treasury, # 5 Summons − Jacob J. Lew) (skh)
13 ORDER upon hearing held 06/26/2013; directing that the Defendants' shall respond to any motion no later than 7/9/2013, and any reply will be due no later than 7/19/2013; the Court will hold a preliminary injunction hearing on 7/23/2013 at 1:30 p.m. Signed by Judge Thomas E. Johnston on 7/1/2013. (cc: attys; any unrepresented party) (tmh)
14 STATEMENT OF VISITING ATTORNEY from Jeffrey C. Mateer on behalf of Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. Local counsel: Allen R. Prunty. Fee $50.00. Receipt # 0425−2511968. (Prunty, Allen)
15 STATEMENT OF VISITING ATTORNEY from Hiram S. Sasser, III on behalf of Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. Local counsel: Allen R. Prunty. Fee $50.00. Receipt # 0425−2512018. (Prunty, Allen)
16 ORDER granting defendants' 9 MOTION for Leave to File Excess Pages; plaintiffs will be permitted to file any reply brief that is twenty−five pages or fewer without further motion. Signed by Judge Thomas E. Johnston on 7/3/2013. (cc: attys; any unrepresented party) (tmr)
17 ORDER Telephonic Status Conference set for 7/5/2013 01:30 PM in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 7/5/2013. (cc: attys; any unrepresented party) (tmr)

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 7 of 10

07/05/2013 07/09/2013 07/10/2013 07/10/2013 07/10/2013 07/10/2013 07/11/2013 07/11/2013 07/12/2013 07/22/2013 07/22/2013 07/26/2013 07/29/2013
08/12/2013

18 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 7/5/2013. (slw) (Entered: 07/09/2013)
19 MEMORANDUM by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury in opposition to 2 MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. for Temporary Restraining Order and Preliminary Injunction (Bennett, Michelle)
20 STATEMENT OF VISITING ATTORNEY from Daniel Mach on behalf of The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation. Local counsel: Sarah Rogers. Fee $50.00. Receipt # 0425−2533792. (Rogers, Sarah) (Modified on 7/10/2013 to remove and replace image to correct state bar number) (skh).
21 STATEMENT OF VISITING ATTORNEY from Jennifer Lee on behalf of The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation. Local counsel: Sarah Rogers. Fee $50.00. Receipt # 0425−2533942. (Rogers, Sarah)
22 BRIEF OF AMICI CURIAE by The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation in Opposition to 2 MOTION by Joseph B. Holland, Jr, and Joe Holland Chevrolet, Inc. for Temporary Restraining Order and Preliminary Injunction (Rogers, Sarah) (Modified on 7/10/2013 to add link to #2 motion) (skh).
NOTICE OF DOCKET CORRECTION re: 20 Statement of Visiting Attorney from Daniel Mach. ERROR: Image contained the incorrect state bar number of local counsel. CORRECTION: Image corrected and replaced. (skh)
23 MOTION by The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation for Leave to File Amicus Curiae Brief (Rogers, Sarah)
24 MEMORANDUM by The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation in support of 23 MOTION by The American Civil Liberties Union, The American Civil Liberties Union of West Virginia Foundation for Leave to File Amicus Curiae Brief (Rogers, Sarah)
25 NOTICE of Supplemental Authority by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Mersino Mgmt. Opinion, # 2 Liberty Opinion)(Bennett, Michelle)
26 MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. to Withdraw 2 MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. for Temporary Restraining Order and Preliminary Injunction (Prunty, Allen)
27 ORDER granting the plaintiff's 26 MOTION to withdraw; withdrawing the 2 MOTION for temporary restraining order and preliminary injunction; and cancelling the preliminary injunction hearing scheduled for 7/23/2013. Signed by Judge Thomas E. Johnston on 7/22/2013. (cc: attys; any unrepresented party) (taq)
28 AMENDED COMPLAINT by Joseph B. Holland, Jr. and Joe Holland Chevrolet, Inc. against United States Department of Health and Human Services, Kathleen Sebelius, United States Department of Labor, Seth D. Harris, United States Department of the Treasury, Jacob Lew. (skh)
29 SUMMONS RETURNED EXECUTED for Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, re: 1 Verified Complaint. Defendants served on 7/8/2013, answer due 9/6/2013. Person Served: Booth Goodwin/United States Attorney. Return Receipt Cards signed by agents on behalf of each defendant and on behalf of the U.S. Attorney General on 7/10/2013 and 7/16/2013. (Prunty, Allen)
30 EMAIL NOTIFICATION to Daniel Mach and Jennifer Lee with Notice from Teresa L. Deppner, Clerk, Re: Electronic filing requirements. (Attachments: # 1 Clerk's

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 8 of 10

08/23/2013 08/23/2013 08/23/2013 08/26/2013 09/08/2013 09/16/2013 09/18/2013
10/02/2013 10/11/2013 11/06/2013 11/14/2013

Notice) (jkk)
31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint (Bennett, Michelle) (Modified on 8/23/2013 to add link to #28 amended complaint and to remove memorandum in support (attachment #1) and file it as entry #32) (skh).
32 MEMORANDUM by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury in support of 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint. (skh)
NOTICE OF DOCKET CORRECTION re: 31 Motion by Defendants to Dismiss 28 Amended Complaint. ERROR: Memorandum in support attached. CORRECTION: Memorandum removed and filed using the event Memorandum In Support, entry #32. (skh)
33 MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. for Extension of Time to File Response to 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint to Sept. 13, 2013 (Prunty, Allen) (Modified on 8/26/2013 to remove link to #32 memorandum) (skh).
34 RESPONSE by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. in opposition to 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint (Prunty, Allen) (Modified on 9/9/2013 to remove link to #32 memorandum) (skh).
35 REPLY by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to 34 Response In Opposition. (Bennett, Michelle) (Modified on 9/16/2013 to remove terminated filer) (skh).
36 NOTICE of Supplemental Authority by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re: 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint (Attachment: # 1 Exhibit − Autocam Decision)(Bennett, Michelle)
37 ORDER granting the American Civil Liberties Union and the American Civil Liberties Union of West Virginia's 23 MOTION to file an amicus brief; and granting plaintiffs' 33 MOTION for an extension of time to file a response to defendant's 31 motion to dismiss. Signed by Judge Thomas E. Johnston on 10/2/2013. (cc: attys; any unrepresented party) (taq)
38 NOTICE of Supplemental Authority by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. re: 34 Response In Opposition (Attachment: # 1 Exhibit 1)(Prunty, Allen)
39 NOTICE of Supplemental Authority by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. re: 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint (Attachment: # 1 Exhibit 1)(Prunty, Allen)
40 NOTICE of Supplemental Authority by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. re: 31 MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to Dismiss 28 Amended Complaint (Attachment: # 1 Exhibit 1)(Prunty, Allen)

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 9 of 10

11/26/2013 12/03/2013 12/04/2013 12/10/2013 12/10/2013 06/30/2014 07/02/2014 07/07/2014 07/15/2014
07/23/2014
12/09/2014
05/29/2015
07/22/2015
07/28/2015

41 NOTICE of Supplemental Authority by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Bennett, Michelle)
42 ORDER the court will hold a telephonic Status Conference on 12/10/2013 at 02:00 PM. Signed by Judge Thomas E. Johnston on 12/3/2013. (cc: attys; any unrepresented party) (tmh)
43 NOTICE OF ATTORNEY APPEARANCE by Benjamin L. Berwick on behalf of Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Berwick, Benjamin)
44 ORDER the Court STAYS this case pending the Supreme Court's decision in Sebelius v. Hobby Lobby Stores, Inc., No. 13354, 2013 WL 5297798 (U.S. Nov. 26, 2013); and REMOVES this case from the Court's active docket. Signed by Judge Thomas E. Johnston on 12/10/2013. (cc: attys; any unrepresented party) (taq)
45 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 12/10/2013. (slw) (Entered: 12/13/2013)
46 NOTICE of Supplemental Authority by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. (Attachment: # 1 Exhibit 1)(Prunty, Allen)
47 ORDER the Court will hold a telephonic status conference on 7/7/2014 at 9:30 AM in Charleston before Judge Thomas E. Johnston. Signed by Judge Thomas E. Johnston on 7/2/2014. (cc: attys; any unrepresented party) (taq)
48 TELEPHONE CONFERENCE held by Judge Thomas E. Johnston on 7/7/2014. (slw)
49 PROPOSED ORDER Consent Order Granting Preliminary Injunction by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc., Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Prunty, Allen) (Modified on 7/15/2014 to add party filers) (skh).
50 CONSENT ORDER GRANTING PRELIMINARY INJUNCTION directing that defendants, their employees, agents, and successors in office are preliminarily ENJOINED until further order of the Court and as directed and set forth more fully herein; no bond is required. Signed by Judge Thomas E. Johnston on 7/23/2014. (cc: attys; any unrepresented party) (taq)
51 JOINT MOTION by Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc. for Entry of Injunction and Judgment (Attachment: # 1 Proposed Order)(Bennett, Michelle) (Modified on 12/9/2014 to add party filers) (skh).
52 INJUNCTION AND JUDGMENT ORDER; directing that judgment is entered in favor of plaintiffs and against defendants on plaintiffs claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb; directing that all other claims against Defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys fees or costs shall be submitted on or before 60 days; directing 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. Signed by Judge Thomas E. Johnston on 5/28/2015. (cc: attys; any unrepresented party) (tmr)
53 JOINT MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc., Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury for Extension of Time to File Plaintiffs' Petition for Attorney's Fees & Costs to 09/28/2015 (Prunty, Allen)
54 ORDER granting the parties' 53 JOINT MOTION for Extension of Time to File Plaintiffs' Petition for Attorney's Fees and Costs to 09/28/2015; directing that the deadline for Plaintiffs to file a petition for attorneys fees and costs is extended to

Case: 2:13-cv-15487 As of: 11/17/2017 10:37 AM EST 10 of 10

09/28/2015 10/07/2015 10/28/2015 10/30/2015

9/28/2015. Signed by Judge Thomas E. Johnston on 7/28/2015. (cc: counsel of record; any unrepresented party) (tmh)
55 JOINT MOTION by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc., Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury for Extension of Time to File Plaintiffs' Petition for Attorney's Fees & Costs to 10/12/2015 (Prunty, Allen) (Modified on 9/28/2015 to add party filers) (skh).
56 ORDER granting the parties' 55 JOINT MOTION for Extension of Time within which plaintiffs may submit to the Court a petition for attorney's fees and costs; plaintiffs may file their petition for attorney's fees and costs by 10/12/2015. Signed by Judge Thomas E. Johnston on 10/7/2015. (cc: counsel of record; any unrepresented party) (taq)
57 JOINT NOTICE OF SETTLEMENT by Joseph B. Holland, Jr, Joe Holland Chevrolet, Inc., Seth D. Harris, Jacob Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Prunty, Allen) (Modified on 10/29/2015 to add party filers) (skh).
58 DISMISSAL ORDER pursuant to the parties' 57 Joint Notice of Settlement; all issues in controversy between the parties have been fully resolved; the Court LIFTS the stay in this case; DISMISSES this action WITH PREJUDICE, subject to reopening on motion of any party for good cause shown within 90 days; and directing this case removed from the Court's docket. The parties need not submit any additional proposed dismissal or other final order unless it is required by law or is necessary under the terms of any agreement resolving this civil action. Signed by Judge Thomas E. Johnston on 10/30/2015. (cc: counsel of record; any unrepresented party) (taq)