Case 1:13-cv-00609-ESH Document 1 Filed 04/30/13 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNSON WELDED PRODUCTS, INC.
625 South Edgewood Avenue Urbana, Ohio 43078

LILLI JOHNSON 625 South Edgewood Avenue Urbana, Ohio 43078
Plaintiffs,

COMPLAINT

v.

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

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

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

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

HILDA L. SOLIS, in her official capacity as Secretary, United States Department of Labor 200 Constitution Avenue, NW Washington, D.C. 20210

UNITED STATES DEPARTMENT OF LABOR 200 Constitution Avenue, NW Washington, DC 20210
Defendants.

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Plaintiffs Johnson Welded Products, Inc. (“JWP”) and Lilli Johnson (collectively referred to as “Plaintiffs”), by and through undersigned c ounsel, bring this Com plaint against the abovenamed Defendants, their em ployees, agents, and successors in office, and in support thereof allege the following upon information and belief:
INTRODUCTION 1. This is a c ivil action in which Plain tiffs seek to prote ct and def end their fundamental rights protected by the United Stat es Constitution and the Religious Freedom Restoration Act. Plaintif fs are c hallenging certain implementing regulations of the Pa tient Protection and Afforda ble Care A ct (“Affordable Care Act”) th at require them to prov ide insurance plans that include coverage for, or access to, contraception, sterilization, abortifacients, and related education and counsel ing under penalty of federal la w (hereinafter “contraceptive services mandate” or “mandate”). 2. Plaintiffs seek a p reliminary and permanent injunction enjoining the challenged mandate and a declaration that the mandate violates federal constitutional and statutory law. The mandate is unconstitutional on its face and as applied in that it, am ong other th ings, violates Plaintiffs’ rights to the free exercis e of relig ion and the freedom of speech und er the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and th e Administrative Procedure Act.
JURISDICTION AND VENUE 3. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is c onferred on this court pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1346.
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4. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Fe deral Rules of Civil Procedure, by 28 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this court.
5. Venue is appropriate in this district pursuant to 28 U.S.C. § 1391(e) because Defendants reside in this district and a substantial part of the acts gi ving rise to Plaintiffs’ claims occurred in this district.
6. This court has authority to award P laintiffs their reasonable costs and attorneys’ fees pursuant to 28 U.S.C. § 2412, 5 U.S.C. § 504, 42 U.S.C. § 2000bb-1, and the general legal and equitable powers of this court
PARTIES 7. Plaintiff JWP is a closel y-held, family owned and operated business that is located in Urbana, Ohio. JW P manufactures reservoirs for air brake sys tems. It has approximately 270 full-time employees. 8. JWP is incorporated under the laws of the State of Ohio, and it has elected to be treated as an S-Corporation since 2000. 9. As part of its corporate philosophy, J WP and its owners “subscribe to the Golden Rule,” which they apply in “bu siness as well as [their] personal live s.” The Golden Rule philosophy of J WP is a direct refl ection of the Catholic religious beliefs and convictions of its owners, specifically including Plaintiff Johnson. 10. The Golden Rule carries with it the command from Jesus to love one another as He has loved us. And Jesus loved us f irst and f oremost by doing the will of the Father . Consequently, the Golden Rule is a m andate to f ollow God’s law, which the co ntraceptive services mandate violates.
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11. As part of its corporate philosophy, JWP and its owners “are continually aware that [their] success d epends,” in large m easure, on th eir “freedom to exist as a priv ate enterprise.” This f reedom to exist a s a private enterprise includes the freedom to operate JW P consistent with the Catholic re ligious beliefs and convictions of its owners, incl uding Plaintiff Johnson.
12. Plaintiff Lilli Johnson is an adult citizen of the United States, and she resides in Ohio.
13. Plaintiff Lilli Johnson is a Catholic and the mother of seven children, all of whom she raised Catholic. P laintiff Johnson is the President and m ajority owner of JWP, holding a 50% ownership stake. Each of Plaintiff J ohnson’s seven children owns an equally-divided, minority interest in the company. There are no other owners of JWP.
14. As the m ajority owner of J WP, Plaintiff Johnson establishes and approves the policies governing the c onduct of all phases of J WP, and she makes the executive decisions governing the operations of JWP, specifically including decisions regarding the health care coverage provided by the company to its employees.
15. As the m ajority owner of J WP, Plaintiff Johnson strives to run her com pany consistent with her sincerely-held Catholic beliefs.
16. Defendant Kathleen Sebelius is the Secretary of the United States Departm ent of Health and Human Services (hereinafter “HHS”). In this capac ity, she has responsibility for the operation and m anagement of HHS, including th e enforcement of the challeng ed mandate. Defendant Sebelius is sued in her official capacity only.
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17. Defendant HHS is an executive agency of the United States governm ent and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
18. Defendant Timothy Geithner is the Secretar y of the United States Departm ent of the Treasury. In this capacity, he has respons ibility for the operation and management of the Department of the Treasury, including the enfor cement of the challenged m andate. Defendant Geithner is sued in his official capacity only.
19. Defendant Department of the Treasury is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the regulation which is the subject of this lawsuit.
20. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Departm ent of Labor, including the enforcem ent of the challen ged mandate. Defenda nt Solis is sued in her official capacity only.
21. Defendant Department of Labor is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS The Affordable Care Act
22. In March 2010, President Obam a signed into law the P atient Protection and Affordable Care Act (P ub. L. No. 111-148, 124 Stat. 119 (2010), amended by Healthcare and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010)) (hereinafter “Affordable Care Act” or “Act”).
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23. Among many other things, the Affordable Care Act requires employers with more than fifty (50) em ployees to provide federal government-approved health insurance or pay a substantial per-employee fine. 26 U.S.C. § 4980H.
The Affordable Care Act — Not a Neutral Law of General Applicability 24. To date, HHS has granted over 1,000 i ndividualized waiver requests from employers and to insurance plans excusing their compliance with the Affordable Care Act. 25. The fine for failure to offer an approved health insurance plan does not apply to employers with fewer than fifty (50) em ployees, not counting seasonal workers. 26 U.S.C. § 4980H. 26. Certain provisions of the Act do not apply to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i ) and (ii) (providing that th e individual mandate does not apply to m embers of a “recogn ized religious sect or division” that co nscientiously objects to acceptance of public or private in surance funds); § 5000A(d)(2)(a)(ii) (p roviding that the individual mandate does not a pply to m embers of a “health care sh aring ministry” that m eets certain criteria). None of these exceptions apply to Plaintiffs. 27. The Affordable Care Act’s preventive care requirements (described below) do not apply to em ployers who provide so -called “grandfathered” health care p lans. The Affordable Care Act’s default position is that an existing health care plan is not a grandfathered plan. 28. The Affordable Care A ct is not generall y applicable because it does not apply equally to all individuals and employers; because the Act pr ovides for num erous exemptions from its provisions, including exemptions for so me religious groups and for som e religious beliefs, but not for others; and because HHS gr ants individualized waiver requests excusing some employers from complying with the provisions of the Act.
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29. The Affordable Care is not neutral because some groups, both secular and religious, enjoy exem ptions from certain provisi ons of the Act, which others do not; because some groups, both secular and religious, hav e received waivers from com plying with the provisions of the Act, while others have not.
30. Plaintiffs are not elig ible for any exemptions from the Act, and they are no t eligible for an exemption from the challenged mandate.
The Affordable Care Act — Development of the Contraceptive Services Mandate 31. The Affordable Care Act mandates that health insurers “provide coverage for and
shall not impose any cost sharing requirem ents for . . . with respect to wom en, such additional preventative care and screenings . . . as provided for in comp rehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
32. On July 19, 2010, HHS, along with the Depart ment of Labor and the Departm ent of the Treasury, published interim final regulati ons “implementing the rules for group health plans and health insurance covera ge in the group and individual markets under provisions of the Patient Protection and Affordable Care Act rega rding preventive health services.” 75 Fed. Re g. 41726 (July 19, 2010). Among other things, the interim final regulations required health insurers to cover preventive care for wom en “as provid ed for in guidelines supported by the Health Resources and Services Administration.” 75 Fed. Reg. 41759.
33. HHS accepted public comments to the 2010 interim final regulations until September 17, 2010. Upon infor mation and belief, a large num ber of groups fi led comments, warning of the potential conscience implications of requiring individuals, corporations, and other organizations to pay for certain kinds of servi ces, including contracep tion, sterilization, and abortion, which includes abortifacients.
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34. HHS commissioned a study by a private hea lth policy organization, the Institute of Medicine (hereinafter “IOM”), “to review what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services for women.” (See http://www.hrsa.gov/womensguidelines).
35. In conducting its study, IOM invited the va rious pro-elective abortion groups and individuals to m ake presentations on the preven tive care that should be provided by all health insurers, including the following: the Guttm acher Institute, the Am erican Congress o f Obstetricians and Gynecologis ts, the National Women’s Law Center, the National W omen’s Health Network, Planned Parenthood Federati on of Am erica, John Santelli, and Sara Rosenbaum. (See http://www.nap.edu/openbook.php?record_id=13181&page=217).
36. No religious groups or other groups th at oppose government-mandated coverage of contraception, sterilization, abortion, and relate d education and coun seling were am ong the invited presenters. (See http://www.nap.edu/openbook.php?record_id=13181&page=217).
37. On July 19, 2011, IOM published a report of its study regarding preventive care for women. Am ong other things, IOM recomm ended that preventive services include “[a]ll Food and Drug Adm inistration approved contraceptive methods [and] sterilization procedures.” (See Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011)).
38. Federal Drug Adm inistration-approved contraceptive methods include, am ong other drugs, devices and procedures , birth control pills, prescription contraceptive devices, Plan B (also known as the “morning after pill”), and ulipristal (also known as “ella” or the “week after pill”).
39. Plan B and ella can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an em bryo. The use of ar tificial means to prevent the
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implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each

constitute an abortion. Consequently, Plan B and ella are abortifacients.

40. On August 1, 2011, HHS’s Hea lth Resources and Services Adm inistration

(hereinafter “HRSA”) announced that it was supporting “the IOM’s recommendations on

preventive services that add ress health needs specific to women and f ill gaps in exis ting

guidelines.” HRSA entitled the recommendati ons, “Women’s Preventive Services: Required

Health Plan Coverage Guidelines.” Among other things, HRSA’s Guidelines include “[a]ll Food

and Drug Administration approved contraceptive methods, sterilization procedures, and patient

education and counseling for all wom

en with reproductive capacity.” (

See

http://www.hrsa.gov/womensguidelines).

The Affordable Care Act — Adoption of the Contraceptive Services Mandate

41. On August 3, 2011, HHS, along with the Departm

ent of Labor and the

Department of the Treasury, published interi m final regulations which, am ong other things,

mandate that all health insurers “provide benefits for and prohi bit the imposition of cost-sharing:

. . . . W ith respect to wom en, preventive care and screening provided for in comprehensive

guidelines supported by HRSA . . . which will be commonly known as HRSA’ s Women’s

Preventive Services: Required Health Plan C overage Guidelines.” 76 Fed. Reg. 46621 (Aug. 3,

2011); 45 C.F.R. § 147.130.

42. Defendant Departments “determined that an addition al opportunity for public

comment would be im practical and contrary to the publ ic interest” and pr omulgated the final

regulation without waiting for public comment. 76 Fed. Reg. 46624.

43. The August 3, 2011, interim final regulations noted that “several comm enters [to

the July 19, 2010 interim final regulations] asserted that requiring group health plans sponsored

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by religious em ployers to cover co ntraceptive services that their faith deems contrary to its religious tenets would impinge upon their religi ous freedom.” Accordingly, “the Departm ents seek to p rovide for a religious accommodation that respe cts the unique relationship between a house of worship and its em ployees in m inisterial positions. . . . [T]he Departm ents are amending the interim final rule s to provide HRSA addi tional discretion to ex empt certain religious employers from the Guidelines where c ontraceptive services are concerned.” 76 Fed. Reg. 46623 (emphasis added).
44. For purposes of the discretionary exem ption set forth in the August 3, 2011, interim final regulations, a “religious employer is one tha t: (1) Has the inculcation of religious values as its purpose; (2) prim arily employs persons who share its religiou s tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit or ganization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii).” 76 Fed. Reg. 46623; 45 C.F.R. § 147.130.
45. Although HHS accepted public co mments to the 2011 interim final regulations until September 30, 2011, it went into effect immediately.
46. Heath insurers are required to begin providing the coverage mandated by HRSA’s Women’s Preventive Care Guidelines (i.e., the contraceptive services mandate) in the first plan year (in the individual market, policy year) that begins on or after August 1, 2012.
47. Plaintiffs’ plan year begins in July. Consequently, the contraceptive services mandate will be operating in full force against Plaintiffs as of July 1, 2013.
48. Thus, by the stroke of a bureaucrat’s pen, the federal governm ent purported to effect a rule forcing private health plans natio nwide to co ver sterilization and contraception, including drugs that m ay cause abortion. All the other m andated “preventive services” prevent disease, but pregnancy is not a disease.
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49. The contraceptive services com ponent of the preven tive services mandate

imposes a s ubstantial burden of un precedented reach and severity on the conscien ces of tho se

who consider such “services” immoral: insurers forced to write policies including this coverage;

employers, owners of businesses, and schools fo rced to provide, spons or, and subsidize the

coverage; and individual employees and students forced to pay premiums for the coverage.

50. Upon information and belief, HHS receive d tens of thousands of comm ents

objecting to the m andate regarding the provision of contr aception, sterilization, and

abortifacients.

51. The United States Council of Catholic Bishops called for a rescission of the

contraceptive services mandate, and, in the even t HHS insisted on keeping the m andate, urged

HHS to provide a conscience exemption for all of these stakeholders—not just the extrem ely

small subset of “religious employers” that HHS proposed to exempt initially.

52. On January 20, 2012, Defendant Sebelius announced that: “Nonprofit em ployers

who, based on religious beliefs do not currently

provide contraceptive coverage in their

insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new

law.” She further announced that: “We intend to require employers that do not offer coverage of

contraceptive services to provide notice to employees, which will also state that contraceptive

services are available at sites such as community health centers, public clinics, and hospitals with

income-based support.” (See http://www.hhs.gov/news/press/2012pres/01/20120120a.html).

53. On February 10, 2012, President Oba ma announced that his Adm inistration

intended to propose and finalize a new regulation that “will require insurance companies to cover

contraception if the non-exem pted religious or ganization chooses not to. . . . Contraception

coverage will be offered to wom en by their empl oyers’ insurance companies directly, with no

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role for religious em ployers who oppose contraception.” ( See http://www.whitehouse.gov/the-

press-office/2012/02/10/fact-sheet-women-s-preventive-services-and-religious-institutions).

This so-called “com promise” was rejected by the Catholic Bishops because it fails to protect

religious freedom and the right to conscience.

54. Defendants continue to reject consider ing a “broader exem ption” from the

mandate because they believe that such an exemption “would lead to m ore employees having to

pay out of pocket for contraceptive services, thus making it less likely that they would use

contraceptives, which would undermine the benefits [of requiring the coverage]. Employees that

do not primarily em ploy employees who share the religious tenets of the organization are m ore

likely to employ individuals who have no religious objection to the use of contraceptive services

and therefore are more likely to use contraceptiv es. Including these employers within the scope

of the exemption would subject their employees to the religious views of the emplo yer, limiting

access to contraceptives, thereby inhibiting the use of contraceptive services and the benefits of

preventive care.” 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012) (emphasis added). Thus, the ultimate

goal of Defendants is to increase the “use of

contraceptive services” and to ensure that

employees are not “sub ject” to the em ployer’s religious beliefs regardi ng such “contraceptive

services.”

55. Defendants have thus made it clear that they do not intend to provide a “broader

exemption” that would in any way “inhibit[] the use of contraceptive services” by employees or

subject . . . em ployees to the religious views of the em ployer.” In short, Defendants do not

intend to extend the exemption from the mandate to corporations such as JW P or their owners,

such as Plaintiff Johnson.

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56. Pursuant to their vow to prom ulgate a new rule regarding th e religious employer exemption and accommodation, in February 20 13, Defendants released a notice of proposed rulemaking (NPRM) that would am end the cont raceptive coverage requirem ent for certain religious employers and eligible nonprofit employers with religi ous objections to the contraceptive services mandate. Specifically, the NPRM would, among other things, (1) “amend the criteria for the re ligious employer exemption to ensure that an o therwise exempt employer plan is no t disqualified because the em ployer’s purposes extend beyond the in culcation of religious values or because the employer serves or hires people of different religious faiths”; and (2) “establish accommodations for health coverage established or m aintained by eligible organizations, or a rranged by e ligible organizations that are religiou s institutions of higher education, with religious objec tions to contraceptive covera ge.” 78 Fed. Reg. 8456, 8459 (Feb. 6, 2013).
57. As proposed by the NPRM, organizations eligible for this accommodation are those that (1) oppose providing coverage for contra ceptive services otherwise required to be covered, on account of religious objections; (2) ar e organized and operate as nonprofit entities; (3) hold them selves out as religious organizati ons; and (4) m aintain self-certifications that criteria (1) through (3) are satisfied. 78 Fed. Reg. at 8474.
58. Defendants intend to finalize the amendments to the regulations such that they are effective before the end of the expiration of a “temporary enforcement safe harbor,” which will be in effect until the first plan year that begins on or after August 1, 2013.
59. Under the tem porary enforcement safe harbor, Defendants will not ta ke any enforcement action against an employer, group health plan, or group health insurance issuer with respect to a non-exem pt, non-grandfathered group health plan that fails to cover som e or all
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recommended contraceptive services and that is sponsored by an organization that m eets certain criteria, including the requirem ent that the em ployer be organized and operated as a nonprofit entity, among others. See HHS, “ Guidance on the Tem porary Enforcement Safe Harbor for Certain Employers” (A ug. 15, 2012), available at http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (last visited Apr. 27, 2013).
60. Plaintiffs do not qualify as a “relig ious employer” f or purposes of the discretionary exemption, they are not eligible for the proposed “accommodation,” and they are not eligible for the temporary enforcement safe harbor. Consequently, the contraceptive services mandate will apply against Plaintiffs in full force on July 1, 2013.
Plaintiffs’ Sincerely Held Religious Beliefs Regarding Contraceptive Practices and Abortion
61. Plaintiffs have a deep devotion to the Catholic faith. 62. Plaintiffs hold and actively profess religious beliefs that includ e traditional Christian teaching on the nature and purpose of hum an sexuality. In particular, in accordan ce with Pope Paul VI’s 1968 encyclical Humanae Vitae, Plaintiffs believe that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Plaintiffs believe and actively professes the Catholic Church te aching that “[t]o use this divine gift destroying, even if only partially, its m eaning and purpose is to contradict the nature both of m an and of wom an and of their m ost intimate relationship, and theref ore it is to contradict also the plan of God and His Will.” Therefore, Plaintiffs believe and profess that “any action which either before, at the moment of, or after se xual intercourse, is specifically intended to prevent procreation, whet her as an end or as a m eans”—including contraception and sterilization—is a grave sin.
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63. As Pope Paul VI prophe tically proclaimed in Humanae Vitae, contraception has opened up a “wide and easy road . . . towards c onjugal infidelity and the general lowering of morality.” Consequently, “growing used to the e mployment of anticonceptive practices,” man is “los[ing] respect for the wom an and, no longe r caring for her physical and psychological equilibrium, [is com ing] to the point of cons idering her as a m ere instrument of selfish enjoyment, and no longer as his respected a nd beloved com panion.” Consequently, the contraceptive services mandate is harmful to women.
64. Plaintiffs also hold and actively profess religious belief s that include traditional Christian teaching on the sanctity of life. They believe and prof ess that each human being bears the image and likeness of God, and therefore all hum an life is sacred and precious from the moment of conception. Consequen tly, Plaintiffs believe and prof ess that abortion ends a hum an life and is a grave sin.
65. Further, Plaintiffs subscribe to au thoritative Catholic teach ing about th e proper nature and aim s of health care and medical treatment. For exam ple, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
66. Based on the teach ings of the Catholic Church, and their own sincerely held beliefs, Plaintiffs do not believ e that contracep tion, sterilization, abortion, or abortifacien ts are properly understood to constitute medicine, health care, or a m eans of providing for the wellbeing of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices.
67. The contraceptive services m andate is, theref ore, forcing Plaintiffs to choose between following their sincerely held religious beliefs or committing a grave sin. If Plaintiffs
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choose to follow their religious beli efs and convictions, then they wi ll be subject to severe fines and penalties.
Plaintiffs’ Employee Health Insurance 68. Plaintiffs employ approximately 270 employees. 69. As part of its comm itment to Catholic social teaching, Plaintiffs promote the health and well-being of their em ployees. In furtherance of this commitment, Plaintiffs provide health insurance for their employees. 70. When Plaintiffs renewed their health insurance policy in July 2012, they took affirmative steps to ens ure that their policy did not include any offendi ng coverage, such as the coverage required by the contraceptive services mandate. 71. Plaintiffs endeavor to ensure that th eir insurance policies do not cover drugs, devices, services, or procedur es inconsistent with th eir faith, including contraception, sterilization, and abortifacients. 72. Plaintiffs object to p roviding health insurance covering artifi cial contraception, sterilization, or abortifacients, or related education and counseling because doing so violates their sincerely held religious beliefs. 73. Plaintiffs object to providing inform ation or guidance to their em ployees about other locations at which they can access artificial contraception, sterilization, or abortifacients, or related education and counseling because doing so violates their sincerely held religious beliefs. 74. Plaintiffs’ health care plan is not a gr andfathered plan under the Afforda ble Care Act for multiple reasons, including, but not lim ited to, the following: (1) the health care plan does not include the required “disclosure of gra ndfather status” statement; (2) Plaintiffs do not take the position that their health care plan is a grandfathered plan; and (3) the h ealth care plan
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had an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
75. Plaintiffs’ health care plan is not a grandfathered plan because it has been materially changed since March 23, 2010. Duri ng this time period, there was an increase in outof-pocket costs (from $6,000 per fam ily and $3,000 per individual to $10,000 per fa mily and $5,000 per individual), a copay was added to its prescription drug coverage, the co-insurance coverage after deductible went from 100% to 90%, and the deductible increased (f rom $6,000 per family and $3,000 per individual to $7,000 per fa mily and $3,500 per individual), am ong other changes.
76. The contraceptive services mandate applies to Plaintiffs as they em ploy fifty (50) or more full-time employees and are not otherwise exempted from the mandate or eligible for the temporary enforcement safe harbor.
77. The contraceptive services m andate went into effect on August 1, 2012, for nonexempt for-profit employers, such as Plaintif fs, and the m andate applies to th e first health insurance plan-year starting after August 1, 2012. Consequently, th e mandate will apply against Plaintiffs in full force starting July 1, 2013.
78. Plaintiffs wish to renew health insu rance coverage for their full-tim e employees on July 1, 2013, while, at the same time, excluding coverage for all FDA-approved contraceptive methods, including injectable contraceptives, abortifacients, sterilization procedures, and related patient education and counseling, which are required by the mandate.
79. Under the terms of the contraceptive services mandate and absent relief from this court, Plaintiffs will be requir ed to violate their religious beliefs and moral values by providing
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their full-time employees with coverage of goods, services, activities, and practices that Plaintiffs consider sinful and immoral.
80. Failure to comply with the con traceptive services mandate will subject Plaintiffs to significant fines and penalties.
81. Failure to provide health insurance that complies with the contraceptive services mandate may result in fines and penalties of $100 per day for each e mployee not properly covered, 26 U.S.C. § 4980D, as well as pote ntial enforcement lawsuits, 26 U.S.C. §§ 1132, 1185d.
82. Should Plaintiffs, pursuant to their sin cerely-held religious beliefs and m oral values, not provide health insurance that com plies with th e contraceptive services mandate for their approximately 270 full-time employees, they would be subjected to daily fines and penalties of about $27,000, totaling over $9.8 million annually.
83. Non-exempt employers with fifty (50) or more full-time employees th at fail to provide any employee health insurance plan are subjected to annual fines and penalties of $2,000 for each full-time employee, not counting thirty of them. 26 U.S.C. § 4980H.
84. The contraceptive services m andate pressures Plaintiffs into choosing between complying with the m andate’s requirements in violation of their sincerely- held religious beliefs and moral values or paying ruinous fines and pena lties that would have a crippling i mpact on their ability to survive econom ically. The m andate, therefore, im poses a substantial burden on Plaintiffs’ religious exercise.
85. Any alleged interest Defendants have in forcing em ployers to provide their employees with FDA-approved contraceptives, abortifacients, sterilization procedures, and related education and co unseling services, without cost sharing, is not com pelling as applied to
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Plaintiffs. In addition, any such interest can be advanced by Defenda nts through other m ore narrowly tailored m eans that w ould not require Plain tiffs to pay for, provide access to, or otherwise support coverage of such items through their employee health care plan in violation of their religious beliefs and moral values.
86. Plaintiffs lack an adequate or available administrative remedy. 87. Plaintiffs lack an adequate remedy at law.
FIRST CLAIM FOR RELIEF (Free Exercise of Religion — Violation of the First Amendment) 88. Plaintiffs hereby incorporate by reference all stated paragraphs as though fully set forth herein. 89. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage for contra ception, sterilization, abortifacients, and re lated education and counseling violates Plaintiffs’ right to the fr ee exercise of religion guaranteed by the First Amendment to the United States Constitution. 90. Plaintiffs’ sincerely held religious belie fs prohibit them from providing insurance coverage for contraception, sterilization, abortif acients, and related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 91. Plaintiffs’ sincerely held religious beliefs prohibit them from providing access to contraception, sterilization, abor tifacients, and related educatio n and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise 92. The Affordable Care Act’s requirement that P laintiffs provide health insurance that covers (or prov ides access to) contracep tion, sterilization, abo rtifacients, and related education and counseling substantially burdens Plaintiffs’ sincerely-held religious beliefs.
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93. The Affordable Care Act’s requirement that P laintiffs provide health insurance that covers (or prov ides access to) contracep tion, sterilization, abo rtifacients, and related education and counseling chills Plaintiffs’ religious exercise.
94. Plaintiffs must choose between being forced to purchase health insurance for their employees that covers (or provid es access to) c ontraception, sterilization, abortifacients, and related education and counseling or paying substantial penalty fines.
95. The Affordable Care Ac t’s requirement that employers provide health insurance that covers (or prov ides access to) contracep tion, sterilization, abo rtifacients, and related education and counseling creates governm ent-imposed coercive pressure on Plaintiffs to change or violate their sincerely-held religious beliefs.
96. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incu r substantial penalty fin es does no t further any compelling governmental interest.
97. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incur substantial penalty fi nes is not the least restrictive means to accomplish any permissible governmental interest.
98. The Affordable Care Act’s requirement that employers p rovide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incur substantial penalty fines is a restriction on the free exercise of religion that is not narrowly tailored to advance any permissible governmental interest.
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99. The Affordable Care Ac t’s requirement that employers provide health insurance that covers (or prov ides access to) contracep tion, sterilization, abo rtifacients, and related education and counseling does not accommodate Plaintiffs’ sincerely-held religious beliefs.
100. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incu r substantial penalty fines is not a neutral law of general applicability.
101. Notwithstanding its rec eipt of multiple objections to the A ffordable Care Act’ s requirement that em ployers provide insurance pl ans that include cov erage for (o r access to) contraception, sterilization, abortifacients, and related education and counseling on the basis that it would violate certain persons’ sincerely-held religious beli efs, Defendants designed that requirement and its “religious em ployer” exemption in a way that m akes it impossible for Plaintiffs to comply with their religious beliefs.
102. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling is o fficial action that targets re ligious conduct and beliefs for distinctive, discriminatory, and adverse treatment.
103. Defendants promulgated the Affordable Ca re Act’s requirem ent that employers provide insurance plan s that in clude coverage for (or access to) con traception, sterilization, abortifacients, and related education and counse ling in order to suppress Plaintiffs’ and other similarly situated persons’ right to free exercise of religion.
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104. The Affordable Care Act’s violation of Pl aintiffs’ right to the free exercis e of religion has caused, an d will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
105. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their constitutional rights.
SECOND CLAIM FOR RELIEF (Violation of the Religious Freedom Restoration Act) 106. Plaintiffs hereby incorporate by reference all stated paragraphs as though fully set forth herein. 107. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incur substantial penalty fines violates the Religious Freedom Restoration Act (42 U.S.C. § 2000bb, et. seq.). 108. Plaintiffs’ sincerely held religious belie fs prohibit them from providing insurance coverage for (or access to) contracep tion, sterilization, abortifacients, and related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 109. The Affordable Care Act’s requirement that P laintiffs provide health insurance that covers (or prov ides access to) contracep tion, sterilization, abo rtifacients, and related education and counseling or incur substantial pe nalty fines substantially burdens Plaintiffs’ sincerely-held religious beliefs. 110. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related
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education and counseling or incu r substantial penalty fin es does no t further any compelling governmental interest.
111. The Affordable Care Act’s requirement that employers p rovide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling or incur substantial penalty fi nes is not the least restrictive means to accomplish any permissible governmental interest.
112. The Affordable Care Ac t’s violation of the Religious Freedom Restoration Act has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
113. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their constitutional rights.
THIRD CLAIM FOR RELIEF (Freedom of Speech — Violation of the First Amendment) 114. Plaintiffs hereby incorporate by reference all stated paragraphs as though fully set forth herein. 115. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage f or (or access to) contraception, sterilization, abortifac ients, and related education and counseling violates Plaintiffs’ right to freedom of speech guaranteed by the First Amendment to the United States Constitution. 116. The HRSA W omen’s Preventive Services: Required Health Plan Coverage Guidelines mandate that non-exempt em ployer-sponsored health plans cover “preventive services,” which include “Contraceptive me thods and counseling: All Food and Drug Administration approved contrace ptive methods; sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
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117. The Affordable Care Act’s con traceptive services mandate compels Plaintiffs to subsidize education and counseling regarding c ontraceptive methods, sterilization procedures, and abortifacients.
118. The Affordable Care Act’s con traceptive services mandate compels Plaintiffs to provide education and counseling regarding cont raceptive methods, sterilization procedures, and abortifacients in violation of their sincerely-held religious beliefs.
119. The Affordable Care Act’s con traceptive services mandate compels Plaintiffs to engage in speech that violates their sincerely-held religious beliefs.
120. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage for contra ception, sterilization, abortifacients, and re lated education and counseling is not narrowly tailored to advance a compelling governmental interest.
121. Defendants promulgated the Affordable Ca re Act’s requirem ent that employers provide insurance plan s that in clude coverage for (or access to) con traception, sterilization, abortifacients, and related education and counse ling in order to suppress Plaintiffs’ and other similarly situated persons’ right to freedom of speech.
122. The Affordable Care Act’s violation of Plaintiffs’ right to freedom of speech has caused, and will continue to cause, Plaintiffs to suffer undue hardship and irreparable injury.
123. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their constitutional rights.
FOURTH CLAIM FOR RELIEF (Violation of the Administrative Procedure Act) 124. Plaintiffs hereby incorporate by reference all stated paragraphs as though fully set forth herein.
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125. Because the Affordable Care Act itself doe s not specify a standard for judicial review, it is subject to review under the default st andard of the Administrative Procedure Act. 5 U.S.C. § 706(2). At issue in this lawsuit is whether adoption of the Act’s requirem ent that employers provide insurance plans that include coverage for contraception, sterilization, abortifacients, and related education and couns eling or incur substa ntial penalty fines ( i.e., contraceptive services mandate) was “without observance of procedure required by law” and/or “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
126. The Administrative Procedure Act re quires general notice of a proposed rulemaking and an opportunity for public comment before promulgation of a rulemaking, unless the agency, for good c ause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. § 551, et seq.
127. Defendant Departments purported to fi nd good cause to forego public comment on the August 3, 2011, interim final regulations on the Affordable Care Act’s contraceptive services mandate on the basis that the public had the opportunity to co mment on the previous interim final rule issued on July 19, 2010. 76 Fed. Reg. 46621 (Aug. 3, 2011).
128. The July 19, 2010, interim final rule, however, did not include HRSA’s Women’s Preventive Services: Required Health Plan Cove rage Guidelines, which m andated the coverage for contraception, sterilizati on, abortifacients, and related education and counseling. Accordingly, the public was deprived of th e opportunity to comm ent on the contraceptive services mandate in the preventive services provision of the Affordable Care Act.
129. Because Defendant Departm ents took agency action “no t in observ ance of procedure required by law,” Plaintiffs are entitled to relief under 5 U.S.C. § 706(2)(D).
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130. Similarly, Defendant Departments’ decision to adopt the August 3, 2011, interim final regulations was made without considering the public’s comments on the specific preventive procedures mandated therein, incl uding coverage for contraception, sterilization, abortifacients, and related education and counsel ing. Therefore, its action was “arbitrary, capricious, [and] a n abuse of discretion.” Plaintiffs are therefore also entitled to relief under 5 U.S.C. § 706(2)(A).
131. Section 1303(b)(1)(A) of the Aff ordable Care Act states that “no thing in this title”—(i.e., Title I of the Act, which inclu des the pr ovision dealing with “preven tive services”)—“shall be construed to require a qua lified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
132. Further, the W eldon Amendment to th e Consolidated Security, Disaster Assistance, and Continuing Appr opriations Act of 2009 prevents federal, state, and local governments from receiving certain federal funds if they discrim inate against health care providers, including health insurance plans, that re fuse to provide, pay for, provide coverage of, or refer for abortions. Pub. L. 110 329, Di v. A, Section 101 (Sept. 30, 2008) 122 Stat. 3574, 3575. This “conscience clause” is designed to prevent discrimination against health care providers who have a moral objection to abortion.
133. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage for contra ception, sterilization, abortifacients, and re lated education and counseling includes “[a]ll Food and Drug Adm inistration approved c ontraceptive methods, sterilization procedures.”
134. Federal Drug Adm inistration-approved contraceptive methods include, am ong other drugs, devices and procedures , birth control pills, prescription contraceptive devices, Plan
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B (also known as the “morning after pill”), and ulipristal (also known as “ella” or the “week after pill”).
135. Plan B and ella can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an em bryo. The use of ar tificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law. Consequently, Plan B and ella cause abortions.
136. The Affordable Care Act ’s requirement that employers provide insurance plans that include coverage for (or acces s to) contra ceptives that cause abortions violates Section 1303(b)(1)(A) of the Affordable Care Act and the Weldon Amendment.
137. As set forth above, the Affordable Care Act’s requirement that employers provide insurance plans th at include coverage fo r (or access to) con traception, sterilization, abortifacients, and related education and counseling or incur substantial penalty fines violates the free exercise of religio n and the free speech guarantees of the First Am endment and the Religious Freedom Restoration Act.
138. Because the Affordable Care Act’s require ment that employers provide insurance plans that include cov erage for (or access to ) contraception, sterilization, abortifacients, and related education and counseling or pay substantial penalty f ines is “contrary to existing law,” Plaintiffs are further entitled to relief under 5 U.S.C. § 706(2)(A).
139. Plaintiffs have no adequate remedy at law to correct the continuing deprivation of their constitutional and statutory rights.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray for judgment as follows:
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A. That this court declare that the Affordable Care Act’s requirement that employers provide insurance plan s that inclu de coverage for, or access to, contracep tion, sterilization, abortifacients, and related education and counseling or incur substantial penalty fines violates the First Amendment to the United States Constitution;
B. That this court declare that the Affordable Care Act’s requirement that employers provide insurance plan s that inclu de coverage for, or access to, contracep tion, sterilization, abortifacients, and related education and counseling or incur substantial penalty fines violates the Religious Freedom Restoration Act;
C. That this court declare that the Affordable Care Act’s requirement that employers provide insurance plan s that inclu de coverage for, or access to, contracep tion, sterilization, abortifacients, and related education and counseling or incur substa ntial penalty fines was issued in violation of the Administrative Procedure Act;
D. That this court issue an ord er preliminarily and perm anently prohibiting Defendants from enforcing the Affordable Care Act’s requirem ent that em ployers provide insurance plans that include coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseli ng or incur substantial penalty fines against P laintiffs, their group health plans, or the group health insuran ce coverage provided in connection with such plans;
E. That this court award Plaintiffs their r easonable costs, including attorneys’ fees, pursuant to 28 U.S.C. § 2412, 5 U.S.C. § 504, 42 U.S.C. § 2000bb-1, and the general legal and equitable powers of this court;
F. That this court grant such other and further relief as it deems equitable and just under the circumstances.
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Respectfully submitted,

AMERICAN FREEDOM LAW CENTER

/s/ Robert J. Muise Robert J. Muise, Esq. (D.C. Court Bar No. MI 0052) P.O. Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756 rmuise@americanfreedomlawcenter.org

/s/

David Yerushalmi

David Yerushalmi, Esq. (Ariz. Bar No. 009616;

DC Bar No. 978179; Cal. Bar No. 132011;

NY Bar No. 4632568)

1901 Pennsylvania Avenue NW

Suite 201

Washington, D.C. 20006

dyerushalmi@americanfreedomlawcenter.org

(646) 262-0500

Counsel for Plaintiffs

29

 
 Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNSON WELDED PRODUCTS, INC.; and LILLI JOHNSON

Plaintiffs,

Case No. 1:13-cv-00609-ESH

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

PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY INJUNCTION AND STAY OF PROCEEDINGS

Defendants.

Plaintiffs Johnson Welded Products, Inc. (“JWP”) and Lilli Johnson (collectively referred

to as “Plaintiffs”), by and through undersigned counsel, hereby submit this unopposed motion for

a preliminary injunction based on their claim under the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb et seq., and a stay of all proceedings in this case pending the resolution of

Gilardi v. U.S. Dep’t of Health & Human Servs. , No. 13-5069 (D.C. Cir.), which is currently

before the U.S. Court of App eals for the D.C. Circuit. Gilardi involves legal claim s similar to

those advanced by Plaintiffs in this case agai nst the sam e federal regulations and the same

federal defendants. Consequently, a decisi on on the merits by the D.C. Circuit in Gilardi will

invariably affect the legal claims in this case. Moreover, the D.C. Circuit granted the appellants’

motion for an injunction pending a ppeal, thereby granting the precis e relief requested here by

Plaintiffs. See Gilardi, No. 13-5069 (D.C. Cir. Mar. 29, 2013) (order granting m otion for an

injunction pending appeal).

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Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 2 of 12
Plaintiffs’ plan year begins in July. Consequently, the ch allenged contraceptive services mandate will be operating in full force agains t Plaintiffs as of July 1, 2013, subjecting Plaintiffs to fines of approximately $27,000 per day that they are not in compliance with the mandate.
In this m otion, Plaintiffs requ est an order enjoining Defendant s, until thirty (30) days after the mandate issues from the D.C. Circuit in Gilardi, from enforcing against Plaintiffs, their employee health plans, the group health insurance coverage provided in connection with such plans, and/or their insurers th e statute and reg ulations that require Plai ntiffs to provide their employees insurance coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all wom en with reproductive capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012) , as well as any penalties, fines, assessments, or any other enfor cement actions for noncom pliance, including those f ound in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d.
Plaintiffs further ask this court to stay all pr oceedings in this case until thirty (30) days after the mandate issues from the court of appeals in Gilardi.
Pursuant to Local Rule 7(m ), counsel fo r the parties discussed this m otion, and Defendants’ counsel stated that, for the reasons stated in the attached Memorandum of Points and Authorities, Defendants do not oppose the motion nor the entry of the proposed order enjoining the enforcement of the co ntraceptive services mandate against Plaintiffs and staying these proceedings pending resolution of Gilardi. Defendants’ counsel ha s also indicated that Defendants do not request a bond.
WHEREFORE, Plaintiffs respectfully request that the court grant this motion and enter the proposed order.
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Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 3 of 12

Respectfully submitted,

AMERICAN FREEDOM LAW CENTER

/s/ Robert J. Muise Robert J. Muise, Esq. (D.C. Court Bar No. MI 0052) P.O. Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756 rmuise@americanfreedomlawcenter.org

/s/

David Yerushalmi

David Yerushalmi, Esq. (Ariz. Bar No. 009616;

DC Bar No. 978179; Cal. Bar No. 132011;

NY Bar No. 4632568)

1901 Pennsylvania Avenue NW

Suite 201

Washington, D.C. 20006

dyerushalmi@americanfreedomlawcenter.org

(646) 262-0500

Counsel for Plaintiffs

3

Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 4 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNSON WELDED PRODUCTS, INC.; and LILLI JOHNSON

Plaintiffs,

Case No. 1:13-cv-00609-ESH

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY INJUNCTION AND STAY OF PROCEEDINGS

Defendants.

Plaintiffs request a prelim inary injunction an d a stay of all p roceedings in this case

pending the resolution of Gilardi v. U.S. Dep’t of Health & Human Servs. , No. 13-5069 (D.C.

Cir.), which is currently before the U.S. Court of Appeals for the D.C. Circuit. The Gilardi case

is fully briefed, and oral argument is expected to be held this September 2013.

As noted in the m otion, Gilardi involves legal claim s similar to those advanced by

Plaintiffs against the s ame federal regulations and the very sam e defendants. Consequently, a

decision on the merits by the D.C. Circuit in Gilardi will invariably affect the legal claims in this

case in that the circuit court’s decision will be binding upon this court.

More important for purposes of the present m otion, the D.C. Circuit granted the

appellants’ motion for an injunction pending appeal, thereby granting the precise relief requested

here by Plaintiffs. See Gilardi, No. 13-5069 (D.C. Cir. Mar. 29, 2013) (order granting m otion

for an injunction pending appeal).

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Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 5 of 12
Indeed, in addition to the injuncti on granted by the D.C. Circuit in Gilardi, many other courts, including this one, see Tyndale House Publishers v. Sebelius , No. 12-1635 (RBW), 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012) (g ranting motion for preliminary injunction, enjoining the enforcement of the contraceptive services mandate),1 have preliminarily enjoined the contraceptive services m andate as applied agai nst for-profit plaintiffs similar to Plaintif fs here, see, e.g., Annex Med., Inc. v. Sebelius , No. 13-118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) (granting inj unction pending appeal); Grote v. Sebelius , 708 F.3d 850 (7th Cir. 2013) (same); Korte v. U.S. Dep’t of Health & Human Servs. , No. 12-3841, 2012 U.S. App. LEXIS 26734 (7th Cir. Dec. 28, 2012) (same); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (same); Triune Health Grp. v. U.S. Dep’t of Health & Human Servs. , No. 1:12-cv-06756, slip op. (N.D. Ill. Jan. 3, 2013) (granting preliminary injunction); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs. , No. 12-3459-CV-S-RED, 2012 U.S. Dist. LE XIS 182307 (W .D. Mo. Dec. 20, 2012) (sam e); Legatus v. Sebelius, No. 12-12061, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. O ct. 31, 2012) (same); Monaghan v. Sebelius, No. 12-15488, 2013 U.S. Dist. LEXIS 35144 (E.D. Mich. Mar. 14, 2013) (sam e); Newland v. Sebelius , 881 F. Supp. 2d 1287 (D. Colo. 2012) (sam e), appeal docketed, No. 12-1380 (10th Cir. Sept. 26, 2012); see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012) (granting temporary restraining order).
As alleged in the Com plaint, based on the t eachings of the Catholic Ch urch, and th eir own sincerely held b eliefs, Plaintiffs do not believe that contracep tion, sterilization,
1 Defendants voluntarily dismissed their appeal of the order granting a preliminary injunction in Tyndale House Publishers. Tyndale House Publishers, Inc. v. Sebelius , No. 13-5018, 2013 U.S. App. LEXIS 9208 (D.C. Cir. May 3, 2013) (granting motion for voluntary dismissal).
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abortifacients, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well-being of persons. Plaintiffs firm ly believe these procedures involve gravely immoral practices. (Compl. at ¶¶ 61-66).
Plaintiffs desire to oper ate their business in a m anner consistent with their Cath olic religious beliefs, including in th eir choice of a h ealth plan for themselves and their em ployees. However, the challenged regulations enfor ced by De fendants require group health plans, including the health plan provided by Plaintiffs, to include FDA approved contraceptive methods and sterilization procedures as well as patient education and c ounseling about those services. (Compl. at ¶¶ 41-60, 68-84).
Plaintiffs’ religious principles and beliefs not only provide that abortion, contraception, and sterilization are im moral, but that paying for, and providing access to, the use of such products and services through a gr oup health plan are immoral as well. Plaintiffs are thus confronted with a Hobson’s choi ce: violate their re ligious beliefs in the m anagement and operation of their business or pa y the federal government substantial and economically crippling fines in order to act in accord with their faith. Indeed, Plaintiffs will face fines of approximately $27,000 per day that they are not in com pliance with the governm ent’s contraceptive services mandate. (Compl. at ¶¶ 78-84).
Plaintiffs’ plan year begins in July. Cons equently, the contracep tive services mandate will be operating in full force against Plaintiffs as of July 1, 2013. (Compl. at ¶ 77).
In order for Plaintiffs to act consistently with their religious beliefs until the resolution of the Gilardi appeal, Plaintiffs request a prelim inary injunction based on their claim under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., enjoining Defendants until thirty (30) days after the mandate issues from enforcing against Plaintiffs, their employee health
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plans, the group health insurance coverage provided in connection with such plans, and/or their insurers the statute and regulations that require Plaintiffs to provide their em ployees insurance coverage for “[a]ll Food and Drug Adm inistration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012), as well as any pe nalties, fines, assessm ents, or any other enforcement actions for noncom pliance, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d.
Under the Religious Freedom Restoration Act (“RFRA”), which was passed in 1993 in response to Emp’t Div. v. Smith , 494 U.S. 872 (1990), the governm ent “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability . . . .” 42 U.S.C. § 2000bb-1(a). This general prohibi tion is not without exception. The government may justify a su bstantial burden on the free ex ercise of religion if the challenged law: “(1) is in furtherance of a com pelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. at § 2000bb-1(b). In other words, Congress passed RFRA “to restore the com pelling interest test” to neutral laws of general applicability that substantially burden religion. See 42 U.S.C. § 2000bb(b).
Under RFRA, “exercise of religion” is define d as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000bb-2(4) (referencing 42 U.S.C. § 2000cc-5(7)(A)). Plaintiffs ’ sincerely held religious beliefs at issue in this case fall within the protections afforded by RFRA. See, e.g., Korte v. Sebelius, No. 12-3841, 2012 U.S. App. LEXIS 26734, at *10 (7th Cir. Dec. 28, 2012) (“The religious-liberty violation at issue here inheres in th e coerced coverage of contraception, abortif acients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of
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Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 8 of 12
contraception or related services.”) ; see also Thomas v. Rev. Bd. of Ind. Emp’t Sec. Div. , 450 U.S. 707, 713, 717-18 (1981) (holding that by de nying employment benefits because the employee refused, on religious grounds, to work in a plant that produced arm aments, the government imposed a substantial burden on the employee’s exercise of religion by “putting substantial pressure on an adherent to m odify his behavior and to violate his beliefs,” noting that “[w]hile the com pulsion may be indirect, the infringement upon free ex ercise is nonetheless substantial”). Consequently, Defendants must justify under strict scrutiny the burden imposed by the contraception m andate upon Plaintiffs’ religious beliefs. Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal , 546 U.S. 418, 430-31 (2006) (“RF RA requires the Governm ent to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particul ar claimant whose sincere exer cise of r eligion is being substantially burdened.”).
Based on the order issued by the D .C. Circuit in Gilardi and as noted in the m otion, counsel for Defendants have indicated to Plainti ffs’ counsel that they do not oppose Plaintiffs’ motion for a prelim inary injunction based on Pl aintiffs’ RFRA claim , until such tim e as the appeal in Gilardi is resolved. Counsel for Defendants further states the following: “For the reasons stated in Defendants’ oppo sitions to the plaintiffs’ motion for prelim inary injunction in Gilardi, see Defs.’ Opp’n to Pls.’ Mot. for Prelim . Inj., Gilardi v. Sebelius, No. 1:13-cv-0104EGS (D.D.C. Feb. 25, 2013), ECF No. 15; see also Defs.’ Mem . in Opp’ n to Pls.’ Mot. for a Prelim. Inj., Korte v. HHS, No. 3:12-CV-01072-MJR (S.D. Ill. Nov. 6, 2012), ECF No. 28, as well as the district court’s decision denying prelim inary relief in that case, see Gilardi v. Sebelius, __ F. Supp. 2d __, 2013 WL 781150 (S.D. D.D.C. Mar. 3, 2013), Defendants do not believe that Plaintiffs are lik ely to succeed on the merits of any of th eir claims, and believe that
5

Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 9 of 12
the decision of the m otions panel in Gilardi was inco rrect. Furthe rmore, it is Defendants’ position that the decision of the m otions panel is not binding on this court. See United States v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008); In re Rodriquez , 258 F.3d 757, 759 (8th Cir. 2001); Lambert v. Blackwell, 134 F.3d 506, 513 n.17 (3d Cir. 1997) . Nonetheless, Defendants acknowledge that, even if this court were to agree with De fendants and deny Plaintiffs’ request for a prelim inary injunction, Plaintiffs would likely then seek an injunction pending appeal, which would likely be assigned to th e same motions panel that decided Gilardi and would thus likely be granted. Therefore, Defendants do not oppose the entry of preliminary injunctive relief in favor of Plaintiffs based on their RFRA claim at this time, to last until thirty (30) days after the mandate issues from the D.C. Circuit in Gilardi.2”
In addition to requesting that this court grant their unopposed m otion for a prelim inary injunction, Plaintiffs, joined by Defe ndants, further ask this court to stay all proceed ings in this case until th irty (30) days after the m andate issues in Gilardi. See Landis v. N. Am. Co ., 299 U.S. 248, 254-55 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cause s of its docket with economy of time and effort for itself, for counsel, and for l itigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”).
As noted previously, th e court of appeals in Gilardi will be addressing legal issues that are substantially sim ilar to those presented in this case, involving facts that are analogous in
2 Defendants’ counsel also notes the following: “[T]here are factors in this case that m ay distinguish it from Gilardi. Among other things, the individual plaintiff, Ms. Johnson, is not the sole owner of the company. (See Compl. ¶ 13). Instead, Ms. Johnson shares ownership with her seven children—none of whom is a plaintiff in this case. Id. Defendants nevertheless believe it would be prudent for the court to await the D. C. Circuit’s views on the general legal issues presented in Gilardi and this case before assessing the import of these differences, and others, in this case.”
6

Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 10 of 12
many respects to those in this case, challenging the same regulations that are challenged in this case, and raising claim s that are also largely in distinguishable from those in this case brought against the very same defendants. Even if the D.C. Circuit’s opinion does not entirely dispose of this case, the outcome of the appeal is likely to substantially affect the outcome of this litigation, and the court and the parties will undoubtedly benef it from the appellate court’s views. And, as noted, Defendants do not oppose Plaintiffs’ request for a stay.
In the final analysis, the requested injunction will sim ply preserve the status quo, protect Plaintiffs’ religious exercise, and not harm the interests of Defendants or the public while the D.C. Circuit resolves similar legal claims.
CONCLUSION For the foregoing reasons, Plaintiffs respectf ully ask this court to grant their unopposed motion for a prelim inary injunction based on th eir RFRA claim , enjoining Defendants, until thirty (30) days after the mandate issues from the D.C. Circuit in Gilardi, from enforcing against Plaintiffs, their em ployee health plans, the group health insurance coverage provided in connection with such plans, and/or their insurers the statute and regulations that require Plaintiffs to provide their employees insurance coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient e ducation and counseling for all women with reproductive capacity,” Fed. Reg. 8725, as well as any penalties, fines, assessments, or any other enforcem ent actions for noncom pliance, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d. Plaintiffs further ask this court to stay all pr oceedings in this case until thirty (30) days after the mandate issues from the court of appeals in Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069 (D.C. Cir.).
7

Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 11 of 12

Respectfully submitted,

AMERICAN FREEDOM LAW CENTER

/s/ Robert J. Muise Robert J. Muise, Esq. (D.C. Court Bar No. MI 0052) P.O. Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756 rmuise@americanfreedomlawcenter.org

/s/

David Yerushalmi

David Yerushalmi, Esq. (Ariz. Bar No. 009616;

DC Bar No. 978179; Cal. Bar No. 132011;

NY Bar No. 4632568)

1901 Pennsylvania Avenue NW

Suite 201

Washington, D.C. 20006

dyerushalmi@americanfreedomlawcenter.org

(646) 262-0500

Counsel for Plaintiffs

8

Case 1:13-cv-00609-ESH Document 6 Filed 05/24/13 Page 12 of 12

CERTIFICATE OF SERVICE

I hereby certify that on May 24, 2013, a copy of the foregoing wa s filed electronically.

Notice of this filing will be sent to all par ties for whom counsel has en tered an appearance by

operation of the Court’s electr onic filing system. Parties m ay access this filing through th e

Court’s system. I further certify that a copy of the foregoing has been served by ordinary U.S.

mail upon all parties for whom counsel has not yet entered an appearance electronically: none.

AMERICAN

FREEDOM LAW CENTER

/s/ Robert J. Muise Robert J. Muise, Esq.

9

 
 Case 1:13-cv-00609-ESH Document 6-1 Filed 05/24/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNSON WELDED PRODUCTS, INC.; and LILLI JOHNSON

Plaintiffs,

Case No. 1:13-cv-00609-ESH

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

ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY INJUNCTION AND STAY OF PROCEEDINGS

Defendants.

Upon Plaintiffs’ Unopposed Motion for Prelim inary Injunction and Stay of Proceedings

and for good cause shown, Plaintiffs’ motion is hereby GRANTED.

It is ORDERED that Defendants, their em ployees, agents, and success ors in office are

hereby enjoined until thirty (30) days after the mandate issues in Gilardi v. U.S. Dep’t of Health

& Human Servs. , No. 13-5069 (D.C. Cir.), from enforcing against Plaintiffs, their em ployee

health plans, the group health insurance coverage provided in connection with such plans, and/or

their insurers the statute and re gulations that require Plaintiffs to provi de their em ployees

insurance coverage fo r “[a]ll Food and Drug A dministration approved contraceptive m ethods,

sterilization procedures, and patient education and counseling for all wom en with reproductive

capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012), as well as any penalties, fines, assessments, or any

other enforcement actions for noncom pliance, including those found in 26 U.S.C. §§ 4980D,

4980H, and 29 U.S.C. §§ 1132, 1185d.

1

Case 1:13-cv-00609-ESH Document 6-1 Filed 05/24/13 Page 2 of 2

It is further ORDERED that a ll proceedings in this case are stayed until thirty (30) days after the mandate issues from the court of appeals in Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069 (D.C. Cir.).
SO ORDERED.

__________________________ Hon. Ellen Segal Huvelle United States District Judge

________________ Date

Copies:

Clerk of the Court

All

Counsel of Record

2

 
 Case 1:13-cv-00609-ESH Document 11 Filed 10/24/14 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

JOHNSON WELDED PRODUCTS, INC., et al. )

)

Plaintiffs,

)

)

v.

)

)

SYLVIA M. BURWELL, et al.

)

)

Defendants.

)

)

Civil Action No. 13-00609 (ESH)

ORDER AND JUDGMENT In light of the United States Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon consideration of the parties’ Joint Status Report [ECF No. 7], it is hereby ORDERED that defendants, their employees, agents, and successors in office are permanently enjoined from enforcing against plaintiffs, their employee health plan(s), the group health insurance coverage provided in connection with such plan(s), and/or plaintiffs’ health insurance issuers, and/or third-party administrators with respect to plaintiffs’ health plans(s)
(1) the statute and regulations in effect on June 30, 2014, that require plaintiffs to provide their employees with health insurance coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” to which plaintiffs object on religious grounds, see, e.g., 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); 77 Fed. Reg. 8725 (Feb. 15, 2012); and

Case 1:13-cv-00609-ESH Document 11 Filed 10/24/14 Page 2 of 2

(2) any penalties, fines, assessments, or any other enforcement actions for noncompliance, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132, 1185d. 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. §§ 20000bb et seq.; and it is further
ORDERED that, pursuant to LCvR 54.2, the parties are directed to confer and attempt to reach agreement on attorney’s fees and costs. A status conference will be held by this Court on January 15, 2015, at 3 p.m., to discuss the matter pursuant to LCvR 54.2. If there is no resolution of the matter at the status conference, plaintiffs may file a motion for attorney’s fees and costs within thirty days of that status conference pursuant to Fed. R. Civ. P. 54, unless a different schedule is ordered at that conference. It is further
ORDERED that this injunction and judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.

Date: October 24, 2014

/s/ Ellen Segal Huvelle ELLEN SEGAL HUVELLE United States District Judge

 
 Case: 1:13-cv-609 As of: 07/31/2016 07:46 PM EDT 1 of 3
CLOSED,STAYED,TYPE−K
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:13−cv−00609−ESH

JOHNSON WELDED PRODUCTS, INC et al v. SEBELIUS et al Assigned to: Judge Ellen S. Huvelle Cause: 42:2000 Religion
Plaintiff

Date Filed: 04/30/2013 Date Terminated: 07/09/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

JOHNSON WELDED PRODUCTS, INC

represented by Robert Joseph Muise AMERICAN FREEDOM LAW CENTER P.O. Box 131098 3000 Green Road Ann Arbor, MI 48113 (734) 635−3756 Fax: (801) 760−3901 Email: rmuise@americanfreedomlawcenter.org ATTORNEY TO BE NOTICED

Plaintiff LILLI JOHNSON

represented by Robert Joseph Muise (See above for address) ATTORNEY TO BE NOTICED

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

represented by Benjamin Leon Berwick U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 305−8573 Fax: (202) 616−8470 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-609 As of: 07/31/2016 07:46 PM EDT 2 of 3

HILDA L. SOLIS in her official capacity as Secretary, US Department of Labor

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

Defendant U.S. DEPARTMENT OF LABOR

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

Date Filed 04/30/2013
04/30/2013 04/30/2013 04/30/2013
05/14/2013
05/15/2013 05/24/2013 05/24/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090−3301721) filed by LILLI JOHNSON, JOHNSON WELDED PRODUCTS, INC. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Sebelius, # 3 Summons for US Dep't of Health & Human Services, # 4 Summons for Geithner, # 5 Summons for US Dep't of Treasury, # 6 Summons for Solis, # 7 Summons for US Dep't of Labor, # 8 Summons for US Attorney General, # 9 Summons for US Attorney)(Muise, Robert) (Entered: 04/30/2013)
2 Corporate Disclosure Statement by JOHNSON WELDED PRODUCTS, INC. (Muise, Robert) (Entered: 04/30/2013)
Case Assigned to Judge Ellen S. Huvelle. (ls, ) (Entered: 04/30/2013)
3 ELECTRONIC SUMMONS (8) Issued as to TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, US DEPARTMENT OF HEALTH AND HUMAN SERVICES, US DEPARTMENT OF LABOR, US DEPARTMENT OF TREASURY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Consent Notice)(ls, ) (Entered: 04/30/2013)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY F. GEITHNER served on 5/9/2013; KATHLEEN SEBELIUS served on 5/7/2013; HILDA L. SOLIS served on 5/6/2013; US DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 5/6/2013; US DEPARTMENT OF LABOR served on 5/8/2013; US DEPARTMENT OF TREASURY served on 5/9/2013, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/7/2013., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/7/2013. ( Answer due for ALL FEDERAL DEFENDANTS by 7/6/2013.) (Muise, Robert) (Entered: 05/14/2013)
5 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 05/15/2013)
6 Unopposed MOTION for Preliminary Injunction by LILLI JOHNSON, JOHNSON WELDED PRODUCTS, INC (Attachments: # 1 Text of Proposed Order)(Muise, Robert) (Entered: 05/24/2013)
MINUTE ORDER granting 6 Unopposed Motion for Preliminary Injunction: Upon consideration of Plaintiffs' Unopposed Motion for Preliminary Injunction and Stay of Proceedings and for good cause shown, Plaintiffs' motion is hereby GRANTED. It is ORDERED that Defendants, their employees, agents, and successors in office are hereby enjoined until thirty (30) days after the mandate issues in Gilardi v. U.S. Dep't of Health & Human Servs., No. 13−5069 (D.C. Cir.), from enforcing against Plaintiffs, their employee health plans, the group health insurance coverage provided in connection with such plans, and/or their insurers the statute and regulations that require Plaintiffs to provide their employees insurance coverage for "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity," 77 Fed. Reg. 8725 (Feb. 15, 2012), as well as any penalties, fines, assessments, or any other enforcement actions for noncompliance, including those found in 26 U.S.C. §§ 4980D,

Case: 1:13-cv-609 As of: 07/31/2016 07:46 PM EDT 3 of 3

07/09/2013
10/08/2014 10/17/2014
10/20/2014 10/24/2014 10/24/2014 10/27/2014 01/13/2015

4980H, and 29 U.S.C. §§ 1132, 1185d. It is further ORDERED that all proceedings in this case are stayed until thirty (30) days after the mandate issues from the court of appeals in Gilardi v. U.S. Dep't of Health & Human Servs., No. 13−5069 (D.C. Cir.). SO ORDERED. Signed by Judge Ellen S. Huvelle on May 24, 2013. (AG) (Entered: 05/24/2013)
MINUTE ORDER: The Clerk's Office is directed to administratively close this matter pending further Order of the Court. Such administrative closure does not serve as a dismissal of either party's claims or defenses. It is without prejudice to, and will have no effect upon, either party's rights, claims, or defenses, except to the extent that defendant may not argue that as a result of this stay, plaintiff's claims are untimely or have not been exhausted. Signed by Judge Ellen S. Huvelle on July 9, 2013. (AG) (Entered: 07/09/2013)
7 STATUS REPORT (Joint) by LILLI JOHNSON, JOHNSON WELDED PRODUCTS, INC. (Muise, Robert) (Entered: 10/08/2014)
8 NOTICE of Objection to the Court's Proposed Order by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, US DEPARTMENT OF HEALTH AND HUMAN SERVICES, US DEPARTMENT OF LABOR, US DEPARTMENT OF TREASURY (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Berwick, Benjamin) (Entered: 10/17/2014)
9 RESPONSE re 8 Notice (Other), Plaintiffs' Response to Defendants' Objection to the Court's Proposed Order filed by LILLI JOHNSON, JOHNSON WELDED PRODUCTS, INC. (Muise, Robert) (Entered: 10/20/2014)
10 MEMORANDUM OPINION. Signed by Judge Ellen S. Huvelle on October 24, 2014. (lcesh2) (Entered: 10/24/2014)
11 ORDER AND JUDGMENT accompanying 10 Memorandum Opinion. Signed by Judge Ellen S. Huvelle on October 24, 2014. (lcesh2) (Entered: 10/24/2014)
Set/Reset Hearings: Status Conference set for 1/15/2015 03:00 PM in Courtroom 23A before Judge Ellen S. Huvelle. (zmm, ) (Entered: 10/27/2014)
MINUTE ORDER: It is hereby ORDERED that the status conference presently set for January 15, 2015, is CANCELED. Signed by Judge Ellen S. Huvelle on January 13, 2015. (lcesh2) (Entered: 01/13/2015)