Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 1 of 35
IN TI-lE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. W. L. (BILL) ARMSTRONG; JEFFREYS. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTI-l AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
VERIFIED COMI'LAINT
PLAINTIFFS W. L. (BILL) ARMSTRONG, JEFFREY S. MAY, WILLIAM L. (WIL)
ARMSTRONG Ill, JOHN A. MAY, DOROTHY A. SHANAHAN, and CHERRY CREEK
MORTGAGE CO., INC., a Colorado corporation, by and through their attorneys Michael J.
Norton and others undersigned of Alliance Defending Freedom and Natalie L. Decker of the
Law Office Of Natalie L. Decker, LLC, for their complaint against the Defendants above-named,
state and allege as follows:
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NATURE OF THE CASE
1. This case is about religious freedom. In this action, Plaintiffs seek declaratory and injunctive relief for the Defendants' violations of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (herein "RFRA"), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701 ct seq. (herein the "APA") caused by the actions of the Defendants in implementing the Patient Protection and Affordable Care Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 1029) and the Health Care and Education Reconciliation Act (Pub. L. 111-152, March 30,2010,124 Stat. 1029) (collectively known and herein referred to as the "Affordable Care Act"), in ways that force Plaintiffs and thousands of other individuals to violate their deepest held religious beliefs.
2. The Armstrong family (Plaintiffs W. L. (Bill) Armstrong, William L. (Wil) Armstrong III (son of Plaintiff W. L. (Bill) Armstrong), and Plaintiff Dorothy A. Shanahan (sister of Plaintiff W. L. (Bill) Armstrong)) (herein the '"Armstrong Plaintiffs") and the May family (Plaintiffs JeffreyS. May and John A. May (father of Plaintiff JeffreyS. May)) (herein the "May Plainti±Ts") comprise all of the voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc. which is organized as an S Corporation pursuant to the Internal Revenue Code ("'RC").
3. Plaintiff Cherry Creek Mortgage Co., Inc. is a full-service residential mortgage banking company, headquartered in Greenwood Village, CO. It is licensed to do business in 27 states and employs a total 730 employees.
4. Plaintiffs provide group health insurance through Plaintiff Cherry Creek Mortgage Co., Inc. to employees and their dependents. Approximately 400 employees (and their dependents) of Plaintiff Cherry Creek Mortgage Co., Inc. are currently covered by this group health
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insurance plan. Each of the members of the Armstrong Plaintiffs and the May Plaintiffs are believing and practicing Evangelical Christian and each believes the Holy Bible is the inspired, inerrant Word of God and that the Holy Bible instructs that each human life, which begins at conception, is created in God's image, that God mandates respect for the sanctity of each human life, and that abortion and abortion-inducing drugs result in the wrongful taking of a human life. 5. With significant exceptions, all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage must provide coverage for certain preventive services without cost-sharing. 42 U.S.C. § 300gg-13. These services have been defined by the Health Resources and Services Administration ("HRSA") to include ''[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity." HRSA, Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womcnsguidclincs/ (referred to hereinafter the "HHS Mandate"). 6. In the category of"FDA-approved contraceptives" included in this 1-IHS Mandate are several drugs or devices 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) and "ella" (the so-called "week after'' pill) which studies show can function to kill embryos even after they have implanted in the uterus by a mechanism similar to the abortion drug RU-486. 7. Over the last several months, the Armstrong Plaintiffs and the May Plaintiffs have become aware that many citizens of the United States who hold the same or similar religious beliefs as do the Armstrong Plaintiffs and the May Plaintiffs have, as a result of such religious
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beliefs, challenged the application of the HHS Mandate to them and to their for-profit businesses. 8. In late December 2012, the Armstrong Plaintiffs and the May Plaintiffs discovered that the health insurance plan offered by Plaintiff Cherry Creek Mortgage Co., Inc. to its employees and their dependants (approximately 400 employees) covered "FDA-approved contraceptives." The Armstrong Plaintiffs and the May Plaintiffs did not understand, until late December 2012, that "FDA-approved contraceptives" included abortion-inducing drugs. 9. The Armstrong Plaintiffs and the May Plaintiffs immediately voiced their religious objections to Plaintiff Cherry Creek Mortgage Co., Inc.'s insurer to providing insurance coverage for abortion-inducing drugs. The Armstrong Plaintiffs and the May Plaintiffs were informed by the insurer that, while the insurer had failed to inform the Armstrong Plaintiffs and the May Plaintiffs of this added coverage, Plaintiff Cherry Creek Mortgage Co., Inc.'s insurance plan covered "FDA-approved contraceptives" and that such "approved contraceptives" indeed included Plan B drugs and ella, drugs that are, in fact, abortioninducing drugs. 10. The Armstrong Plaintiffs and the May Plaintiffs thereupon instructed the insurer to omit coverage of such abortion-inducing drugs from Plaintiff Cherry Creek Mortgage Co., Inc.'s employee health insurance plan. The insurer thereupon informed the Armstrong Plaintiffs and the May Plaintiffs that, without injunctive relief from this Court, the insurer was required to comply with the HHS Mandate and must include such abortion-inducing drugs in Plaintiff Cherry Creek Mortgage Co., Inc.'s group health insurance plan. 11. Because there was not time in late December 2012 to seek judicial relief, on and after January 1, 2013, without any viable option, the Armstrong Plaintiffs, the May Plaintiffs, and
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Plaintiff Cherry Creek Mortgage Co., Inc. were forced, at least temporarily, to comply with the HHS Mandate or face the threat of heavy fines and penalties. The Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc. are currently exploring ways of eliminating such objectionable abortion-inducing drugs from their employee health insurance plan. 12. The HHS Mandate also forces the Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc. to fund government-dictated speech, to wit: education and counseling about abortion-inducing drugs, that is directly at odds with the deeply held religious beliefs that they strive to embody in the management and operation of Plaintiff Cherry Creek Mortgage Co., Inc. 13. In that the HHS Mandate is a substantial burden on Plaintiffs' religious exercise, Defendants· refusal to accommodate the religious and conscience objections of the Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc. and other similarly situated individuals and for-profit business entities is highly selective. 14. The Affordable Care Act exempts a wide variety of health insurance plans from the HHS Mandate and, upon information and belief, the Defendants and other government officials have provided thousands of exemptions or waivers from the Affordable Care Act for various other entities, such as large corporations.' But Defendants' HHS Mandate docs not exempt Plainti!Ts' employee health insurance plan or those of many other religious Americans. 15. Defendants' actions violate Plaintiffs' right fi"eely to exercise religion protected by the RFRA and the Religion Clauses of the First Amendment to the United States Constitution.
1 Judge Kane estimated that "19lmillion Americans belong to plans which may be grandfathercd under the ACA." Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 at ''4 (D. Colo. July 27, 2012); accord Tyndale House Pub/ 'rs. V Sebelius, 2012 U.S. Dist. LEXIS 163965 at ''57-61 (D.D.C. Nov 16, 2012).
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16. Defendants' actions also violate Plaintiffs' right to the freedom of speech as secured by the Free Speech Clause of the First Amendment to the United States Constitution.
17. Additionally, Defendants have violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the HHS Mandate without prior notice or public comment, and for other reasons as described herein.
18. Plaintiffs are now being harmed by Defendants' HHS Mandate. The HHS Mandate by its terms forces Plaintiffs to obtain and pay for insurance coverage of the objectionable items in their January 1, 2013 employee health insurance plan and in succeeding year's plans without relief from this Court.
19. Absent immediate injunctive relief from this Court, by virtue of the number of full-time employees employed by Plaintiffs, Plaintiffs must either continue to comply with the HHS Mandate by being illegally and unconstitutionally coerced into violating their sincerely held religious beliefs or face the threat of heavy fines and penalties.
20. The HHS Mandate forces Plaintiffs to fund government-dictated speech concerning education and counseling related to abortion-inducing drugs that is directly at odds with Plaintiffs' deeply held religious beliefs and the moral ethics Plaintiffs strive to embody in Plaintiff Cherry Creek Mortgage Co., Inc.
21. Defendants' coercion tramples on the fi·eedom of conscience of Plaintiffs and of millions of other Americans who seek to abide by their religious convictions in their lives and in their businesses, to comply with moral imperatives decreed by God in Scripture, and to participate in the public square through their businesses and other activities in a way that is consistent with their deep! y held religious beliefs and the ethical imperatives decreed by God.
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22. Defendants' actions violate Plaintiffs' right to freely exercise their religion, rights protected by the Religion Clauses of the First Amendment to the United States Constitution, rights secured by the Free Speech Clause of the First Amendment to the United States Constitution, and rights protected by the Religious Freedom Restoration Act.
23. Additionally, Defendants' actions have violated the Administrative Procedure Act, 5 U.S.C. § 553, by imposing the HHS Mandate on Plaintiffs and other Americans without prior notice or public comment, and for other reasons alleged herein.
24. Plaintiffs arc faced with immediate, imminent, continuing, and irreparable harm due to Defendants' HHS Mandate which, by its terms, forces Plaintiffs to obtain and pay for insurance coverage for objectionable abortion-inducing drugs and related education and counseling in their employee health insurance plan on and after January 1, 2013.
25. Plaintiffs therefore will continue to suffer irreparable harm unless and until this Court enters declaratory and injunctive relief to protect Plaintiffs from Defendants' deliberate attack on Plaintiffs' consciences, religious freedoms, and speech freedoms which result ti·om continued forced compliance with the HHS Mandate.
PARTIES
26. Plaintiff W. L. (Bill) Armstrong is an individual, resident in Arapahoe County, CO and, along with the other members of the Armstrong Plaintiffs and the May Plaintiffs, is one of the five voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc., a Colorado corporation. Plaintiff W. L. (Bill) Armstrong is also a member of the board of directors of Plaintiff Cherry Creek Mortgage Co., Inc. His business address is 7600 E. Orchard Road, Suite 250-N, Greenwood Village, CO 80111.
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27. Plaintiff JeffreyS. May is an individual, resident in Arapahoe County, CO and, along with the other members of the Armstrong Plaintiffs and the May Plaintiffs, is one of the five voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc., a Colorado corporation. Plaintiff JeffreyS. May is also a member of the board of directors and President & CEO of Plaintiff Cherry Creek Mortgage Co., Inc. His business address is 7600 E. Orchard Road, Suite 250-N, Greenwood Village, CO 80111.
28. Plaintiff William L. (Wil) Armstrong III is an individual, resident in Arapahoe County, CO and, along with the other members of the Armstrong Plaintiffs and the May Plaintiffs, is one of the five voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc., a Colorado corporation. Plaintiff Wil Armstrong III is also a member of the board of directors and Chairman of the Board of Directors of Plaintiff Cherry Creek Mortgage Co., Inc. His business address is 7600 E. Orchard Road, Suite 250-N, Greenwood Village, CO 80111.
29. Plaintiff John A. May is an individual, resident in Broomfield County, CO and, along with the other members of the Armstrong Plaintiffs and the May Plaintiffs is, one of the five voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc., a Colorado corporation. His business address is 7600 E. Orchard Road, Suite 250- N, Greenwood Village, CO 80 Ill.
30. Plaintiff Dorothy A. Shanahan is an individual, resident in Douglas County, CO and, along with the other members of the Armstrong Plaintiffs and the May Plaintiffs, is one of the five voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc., a Colorado corporation. Ms. Shanahan owns her shares as Trustee of the Dorothy Ann Shanahan Trust, a revocable trust dated August 13, 1980. Her business address is 7600 E. Orchard Road, Suite 250-N, Greenwood Village, CO 80111.
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31. Plaintiff Cherry Creek Mortgage Co., Inc. is a Colorado corporation in good standing and operating as an S-Corporation pursuant to the Internal Revenue Code. It's Articles of Incorporation, filed with the Colorado Secretary of State on October 20, 1986 (ID# 19871693857) provide, among other things, that Plaintiff Cherry Creek Mortgage Co., Inc. "'is organized [for] the transaction of all lawful business for which corporations may be incorporated pursuant to the Colorado Corporation Code ... [,] shall have all of the rights, privileges and powers now or hereafter conferred upon corporations by the Colorado Corporation Code ... [and] may exercise all powers necessary or convenient to effect any of the purposes for which the corporation has been organized." The business address of Plaintiff Cherry Creek Mortgage Co., Inc. is 7600 E. Orchard Road, Suite 250-N, Greenwood Village, CO 80111.
32. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the HI-IS Mandate.
33. Defendant Kathleen Sebelius (herein "Sebelius") is the Secretary of the United States Department of Health and Human Services (herein "HI-IS"). In that capacity, she is responsible for the operation and management of HI-IS. Sebelius is sued in her official capacity only.
34. Defendant HI-IS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the HI-IS Mandate.
35. Defendant Seth D. Harris (herein "Harris'') is the Acting Secretary of the United States Department of Labor (herein "DOL"). In that capacity, he is responsible for the operation and management of DOL. Harris is sued in his official capacity only.
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36. Defendant DOL is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the HHS Mandate.
37. Defendant Jacob J. Lew (herein "Lew") is the Secretary of the United States Department of the Treasury (herein "Treasury"). In that capacity, he is responsible for the operation and management of Treasury. Lew is sued in his official capacity only.
38. Defendant Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the HHS Mandate.
JURISDICTION AND VENUE
39. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361; jurisdiction to render declaratory and injunctive relief under 28 U.S. C.§§ 2201 and 2202, 42 U.S. C.§ 2000bb-1, 5 U.S. C.§ 702, and Fed. R. Civ. P. 65; and authority 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.
40. Venue is proper in this district pursuant to 28 U.S.C. § l391(e). A substantial part of the events or omissions giving rise to this Verified Complaint occurred in this district and all of the Plaintiffs are domiciled and/or resident in this district.
FACTUAL ALLEGATIONS 41. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. I. Plaintiffs' Religious Beliefs 42. Each of the members of the Armstrong Plaintiffs and the May Plaintiffs are believing and
practicing Evangelical Christian and each believes that the Holy Bible is the inspired, inerrant Word of God and that the Holy Bible instructs that each human life, which begins at
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conception, is created in God's image, that God mandates respect for the sanctity of each human life, and that abortion and abortion-inducing drugs result in the wrongful taking of a human life. 43. As a result, the Armstrong Plaintiffs and the May Plaintiffs run Plaintiff Cherry Creek Mortgage Co., Inc. in accord with these sincerely held religious beliefs and have adopted, as the following as the mission or purpose statement of Plaintiff Cherry Creek Mortgage Co., Inc., to wit:
OUR PURPOSE IS TO BUILD AND BECOME A GREAT COMPANY AND IN THIS PROCESS WE ASPIRE TO POSITIVELY IMPACT THE LIVES OF THOSE INDIVIDUALS WHO COME INTO CONTACT WITH OUR ORGANIZATION AND TO HONOR GOD IN ALL WE DO. 44. This mission statement appears in Plaintiff Cherry Creek Mortgage Co., Inc. publications (see, e.g., attached Exhibit A), employee training manuals (see, e.g., attached Exhibit B), on a wallet-sized plastic card provided to new employees (see attached Exhibit C; Exhibit Cis an enlarged copy of the wallet-sized card) and on a sign mounted on the wall in Plaintiff Cherry Creek Mortgage Co., Inc.'s employee training room wherein each month new employees are introduced to Plaintiff Cherry Creek Mortgage Co., Inc. and to its mission statement, including Cherry Creek Mortgage Co., Inc.'s primary goal "to honor God in all that we do" by, among others, Plaintiff Cherry Creek Mortgage Co., Inc. president & CEO Plaintiff JeffreyS. May and by Stacy Harding, Senior Vice President, Plaintiff Cherry Creek Mortgage, Co., Inc. 45. One of the religious and moral teachings which each of the members of the Armstrong Plaintiffs and the May Plaintiffs embraces, based on the Holy Bible, is that a preborn child is,
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from the moment of conception, i.e., a fertilized human embryo, a human being created in the image of God. See, e.g., Ps. 51:5; 139:13; Luke 1:41-44; 18:15; 2 Tim. 3:15. 46. Based on these religious and moral teachings, the Armstrong Plaintiffs and the May Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other ways, abortion-inducing drugs is an intrinsic evil and a sin against God. Therefore, abortion and any abortion-inducing drugs that may terminate the life of a fertilized embryo are morally wrong and objectionable to each of the members of the Armstrong Plaintiffs and the May Plaintiffs. 47. The members of the Armstrong Plaintiffs and the May Plaintiffs are all of the voting shareholders of Plaintiff Cherry Creek Mortgage Co., Inc. and, as such, are solely responsible for the management and operation of Plaintiff Cherry Creek Mortgage Co., Inc. They seek to conduct the business operations of Plaintiff Cherry Creek Mortgage Co., Inc. with integrity, in compliance with their pro-life beliefs, and in a manner that honors God. 48. Consequently, each of the members of the Armstrong Plaintiffs and the May Plaintiffs believes that it would be immoral and sinful for Plaintiff Cherry Creek Mortgage Co., Inc. to be required to continue to participate in, pay for, facilitate, or otherwise support abortioninducing drugs and to provide the related education and counseling as is required by the HHS Mandate. 49. Collectively, the members of the Armstrong Plaintiffs and the May Plaintiffs have demonstrated their sincerely held religious beliefs by, among other ways, contributing millions of dollars to Evangelical Christian and pro-life causes over at least the last twenty (20) years.
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II. l'laintiffs' Health Insurance Plan 50. As part of fulfilling their organizational mission and Evangelical Christian beliefs and
commitments, the Armstrong Plaintiffs and the May Plaintiffs, through Plaintiff Cherry Creek Mortgage Co., Inc., provide generous health insurance coverage for their employees and their dependants through C!GNA, a health benefits insurer. 51. Plaintiff Cherry Creek Mortgage Co., Inc. employs approximately 730 full-time employees throughout its various locations. At present, 400 of these employees (and their dependants) are health insurance plan participants. 52. The plan year for Plaintiff Cherry Creek Mortgage Co., Inc.'s insurance plan begins on January 1 of each year. The current plan began on January 1, 2013. The insurance plan is thus renewed on January 1 of each year. 53. The Armstrong Plaintiffs and the May Plaintiffs did not discover until late December 2012 that the health insurance plan offered by Plaintiff Cherry Creek Mortgage Co., Inc. to its employees and their dependants covered "FDA-approved contraceptives" and that "FDAapproved contraceptives" included both (a) "contraceptives" which prevented contraception, to which the Armstrong Plaintiffs and the May Plaintiffs do not object, and (b) Plan B drugs and ella, drugs which are, in fact, abortion-inducing drugs, and intrauterine devices which also is an abortion-inducing device, to which the Armstrong Plaintiffs and the May Plaintiffs do vigorously object on religious grounds. 54. The Armstrong Plaintiffs and the May Plaintiffs thereupon instructed their insurer to omit coverage of such abortion-inducing drugs from Plaintiff Cherry Creek Mortgage Co., Inc.'s insurance plan. The insurer thereupon informed the Armstrong Plaintiffs and the May Plaintiffs that, without injunctive relief from this Court, the insurer was required to comply
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with the HHS Mandate and to include such abortion-inducing drugs in Plaintiff Cherry Creek Mortgage Co., Inc.'s group health insurance plan. 55. Because there was not time in late December 2012 to seek judicial relief relating to the plan beginning on and after January 1, 2013, without any viable option, the Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc. were forced to comply with the HHS Mandate or face the threat of heavy fines and penalties. 56. The Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., were also forced, on and after January 1, 2013, to fund government-dictated speech that is directly at odds with the deeply held religious beliefs. 57. The company that provides health insurance to Plaintiff Cherry Creek Mortgage Co., Inc., i.e. CIONA, has informed the Armstrong Plaintiffs and the May Plaintiffs that, upon the issuance of injunctive relief by this Court, the insurer will immediately remove abortion-inducing drugs from plan coverage.
III. The Affordable Cm·e Act and the HHS Mandate 58. Under the Affordable Care Act, employers with over 50 full-time employees are required to
provide a certain minimum level of health insurance to their employees. 59. On February 15, 2012, the Defendants issued final rules through the Departments of HHS,
Labor, and Treasury entitled "Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and AtTordable Care Act,'" 77 Fed. Reg. 8725-30 that forces Plaintiffs to pay for and otherwise facilitate the insurance coverage and use of abortion-inducing drugs and related education and counseling. 60. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to the Defendants in opposition to the HHS Mandate.
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61. With significant exceptions, these final rules require that all group health plans and health insurance issuers that offer non-grandfathercd group or individual health coverage must
provide coverage for "preventive services," i.e., contraception drugs, abortion-inducing
drugs, and education and counseling related to these drugs, all of which must be offered with no cost-sharing by the covered employee. 42 U.S.C. § 300gg-13. 62. These services have been defined by the Health Resources and Services Administration ("HRSA"), based on recommendations from the Institute of Medicine, to include "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity." I-IRSA, Women's Preventive Services: Required Health Plan Coverage Guidelines, h11J2;1Lwww.hrsa.gov/womensguidelines/ (referred to herein as the "HHS Mandate"). 63. In the category of"FDA-approved contraceptives" included in this HHS Mandate are several drugs or devices that are not truly "contraceptives" but may cause the demise of an alreadyconceived but not-yet- implanted human embryo, such as "emergency contraception" or "Plan B" drugs (the so-called "morning after" pill). 64. Another "FDA-approved contraceptive" in this same category is a drug called "ella" (the socalled "week after" pill) which studies show can function to kill human embryos even after the human embryo has implanted in the uterus by a mechanism similar to the abortion drug RU-486. 65. The manufacturers of these abortion-inducing drugs, methods and devices in the category of "FDA-approved contraceptives" indicate on product labeling that these drugs can function to cause the demise of a human embryo.
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66. The HHS Mandate also requires group health care plans to pay for the provision of counseling, education, and other information concerning contraception (including devices and drugs such as Plan Band ella that cause early abortion or harm to human embryos) and sterilization for all women beneficiaries who are capable of bearing children.
67. The HHS Mandate applies not only to sponsors of group health plans such as employers who provide self-insurance, but also to issuers of insurance such as the issuer which provides health insurance to Plaintiff Cherry Creek Mortgage Co., Inc., to wit: CIGNA. Accordingly, Plaintiffs cannot avoid the HHS Mandate by shopping for an insurance plan that accommodates their right of conscience because the Administration has intentionally foreclosed that possibility.
68. The HHS Mandate applies to the first health insurance plan-year beginning after August 1, 2012.
69. The HHS Mandate currently offers the possibility of a narrow exemption to religious employers, but only if such religious employer meets all of the following requirements: (1) the religious employer has the inculcation of religious values as its purpose; (2) the religious employer primarily employs persons who share its religious tenets; (3) the religious employer primarily serves persons who share its religious tenets; and (4) the religious employer is a nonprofit organization described in section 6033(a)(l) and (a)(3)(A)(i) or (iii) of the IRC. Section 6033(a)(3)(A)(i) and (iii) of the IRC refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.
70. President Obama held a press conference on February 10, 2012, and later (through Defendants) issued an "Advanced Notice of Proposed Rulemaking" ("ANPRM") on March
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21, 2012 (77 Fed. Reg. 16501-08), claiming to offer a "compromise" under which some

religious non-profit organizations not meeting the above definition would still have to

comply with the HHS Mandate, but by means of the employer's insurer o!Iering the employer's employees the same coverage for "fi·ee."2

71. On February 10, 2012 a document was also issued from the Center for Consumer

Information and Insurance Oversight (CCIIO), Centers for Medicare & Medicaid Services

(CMS), of 1-IHS, entitled "Guidance on the Temporary Enforcement Safe Harbor for Certain

Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the

Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of

I

the Public Health Service Act, Section 715(a)( 1) of the Employee Retirement Income

Security Act, and Section 9815(a)(l) of the Internal Revenue Code."

72. Under this "Guidance," an organization that truthfully declares "I certify that the

organization is organized and operated as a non-profit entity; and that, at any point from

February IO, 2012 onward, contraceptive coverage has not been provided by the plan,

consistent with any applicable State law, because of the religious beliefs of the organization."

and that provides a specified notice to plan participants, will not "be subject to any

enforcement action by the Departments for failing to cover recommended contraceptive

services without cost sharing in non-exempted, non-grandfathered group health plans
2 On February 1, 2013, the Defendants proposed another rule which purportedly, if adopted, will broaden this narrow exemption to religious employers. In fact, this new proposed exemption covers only a sliver of religious organizations. As before, it cross-references and relics upon an unrelated section in the IRC that exempts certain church-related organizations covered by the unrelated section and therefore, by this new, proposed exemption, which docs not become effective, if at all, until on or about August 1, 2013, are (i) churches, (ii) conventions or associations of churches, (iii) integrated auxiliaries of churches (e.g., organizations that arc affiliated with and predominantly supported by a church such as a food pantry that is controlled and funded by a church), and (iv) religious orders (e.g., monks or missionaries such as the Jesuits). This proposed new rule does not apply to Plaintiffs or other for-profit entities. Like its predecessor, the proposal is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the February 15, 2012 HHS Mandate. It docs not even create a legal requirement that Defendants change the HHS Mandate at some time in the future.

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established or maintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connection with such plans)," until "the first plan year that begins on or after August I, 2013." 73. Neither of these "compromises" is helpful to Plaintiffs because, among other reasons, Plaintiff Cherry Creek Mortgage Co., Inc. is not a non-profit entity. Therefore, while the Defendants' most recent "compromise" purports to accommodate the religious beliefs of even more religious non-profits beyond the HHS Mandate's initial religious exemption for churches, none of these measures will stop the HHS Mandate from continuing to impose its requirements on Plaintiffs' plan year on and after January 1, 2013. 74. As Plaintiffs' health insurance plan docs not qualify for grandfathered status, Plaintiffs were mandated to comply with the HHS Mandate's requirement of coverage of abortion-inducing drugs and related education and counseling starting in Plaintiffs' January 1, 2013 plan. 75. The HHS Mandate makes no allowance for the religious freedom of individuals and the forprofit entities they own and operate, including the Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc., when such individuals object, on sincerely held religious bases, to paying for or providing insurance coverage for abortion-inducing drugs. 76. A for-profit entity cannot freely avoid the HHS Mandate by simply refusing to provide health insurance to its employees, because the Affordable Care Act imposes significant monetary penalties on entities that would so refuse. 77. The exact magnitude of these penalties may vary according to the complicated provisions of the Affordable Care Act, but the fine is approximately $2,000 per employee per year, i.e.,
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estimated to be about $1,400,000 per year potential fine to Plaintiff Cherry Creek Mortgage Co., Inc. 78. The Affordable Care Act also imposes monetary penalties if Plaintiffs were to continue to omit abortion-inducing drugs from their health insurance plan. 79. The exact magnitude of these penalties may vary according to the complicated provisions of the Affordable Care Act, but the fine is approximately $100 per day per employee, with
minimum amounts applying in different circumstances i.e., estimated to be about
$25,500,000 per year potential fine to Plaintiff Cherry Creek Mortgage Co., Inc. 80. The imposition of such fines would drive Plaintiff Cherry Creek Mortgage Co., Inc. out of
business to the detriment of, among others, its 730 employees. 81. If Plaintiffs do not continue to submit to the HHS Mandate they also trigger a range of
enforcement mechanisms, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, which would include, but not be limited to, relief in the form of judicial orders mandating that Plaintiffs violate their sincerely held religious beliefs and provide coverage for abortion-inducing drugs to which they religiously object. 82. The HHS Mandate imposes no constraint on the government's discretion to grant exemptions to some, all, or none of the organizations meeting the I-IHS Mandate's definition of'·religious employers.'' 83. PlaintitTs are not "religious" enough under this det!nition in several respects, including but not limited to because they have purposes other than the "inculcation of religious values," they do not primarily hire or serve Christians, and because Plaintiff Cherry Creek Mortgage Co. Inc., though an S Corporation, is a for profit entity and not a church, integrated auxiliary
19

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 20 of 35
of a particular church, convention or association of a church, or the exclusive! y religious activity of a religious order. 84. The HHS Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like the Armstrong Plaintiffs and the May Plaintiffs even though those rights were repeated! y raised in the public comments and can be expected to be raised yet again in the most recent "compromise." 85. The HHS Mandate requires that the Armstrong Plaintiffs and the May Plaintiffs to provide coverage for abortion-inducing drugs and to provide compelled speech, i.e., related education and counseling, through Plaintiff Cherry Creek Mortgage Co., Inc. against their consciences and in violation of their religious beliefs and in a manner that is contrary to law. 86. The HHS Mandate constitutes government-imposed coercion on Plaintiffs to either change their sincerely held religious beliefs or continue to violate their sincerely held religious beliefs so as to avoid massive fines and penalties. 87. The HHS Mandate imposes a burden on the Plainti±Ts' employee recruitment and retention efforts by creating uncertainty as to whether or on what terms Plaintiff Cherry Creek Mortgage Co., Inc. will be able to offer health insurance different from or beyond the HHS Mandate's effect or whether Plaintiff Cherry Creek Mortgage Co., Inc. and thus the Armstrong Plaintiffs and the May Plaintiffs, as voting shareholders of an S Corporation will suffer penalties therefrom. 88. The HHS Mandate places the Armstrong Plaintiffs, the May Plaintiffs, and Plaintiff Cherry Creek Mortgage Co., Inc. at a competitive disadvantage in their efforts to recruit and retain employees.
20

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89. The Armstrong Plaintiffs and the May Plaintiffs have sincere conscientious religious objections to providing coverage for abortion-inducing drugs and related education and counseling through their S Corporation, Plaintiff Cherry Creek Mortgage Co. Inc.
90. The HHS Mandate does not apply equally to all religious adherents or groups. 91. The Affordable Care Act and the HHS Mandate are not generally applicable because they
provide for numerous "exemptions" from their rules, many of which have already been granted to other businesses and entities by the Defendants. 92. For instance, the HHS Mandate does not apply to members of a "recognized religious sect or division" that conscientiously object to acceptance of public or private insurance funds. Sec 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption. 93. In addition, as described above, the HHS Mandate exempts certain churches narrowly considered to be religious employers. Plaintiffs do not meet this exemption. 94. Furthermore, the Affordable Care Act creates a system of individualized "exemptions'' because, under the Affordable Care Act's authorization, the federal government has granted discretionary compliance waivers to a variety of for profit businesses, including large businesses, for purely secular or political reasons. Plaintiffs have not been granted any such exemption. 95. The HHS Mandate docs not apply to employers with preexisting plans that are "grandfathered." Plaintiffs' plan is not grandfathered under the Affordable Care Act. 96. The HHS Mandate does not apply through the employer mandate to employers having fewer than 50 full-time employees. Plaintiffs, employing more than 50 full-time employees, do not meet this exemption.
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97. Unless relief issues from this Court, Plaintiffs will be forced to continue to comply with the HHS Mandate for the January 1, 2013 plan year and thereafter.
98. The HHS Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employees.
99. The HHS Mandate will make it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits.
100. Any alleged interest Defendants have in providing free FDA-approved abortion-inducing drugs and related education and counseling witho'ut cost-sharing by plan participants could be advanced through other, more narrowly tailored mechanisms that do not burden the religious beliefs of Plaintiffs and do not require them to provide or facilitate coverage of such abortion-inducing drugs and related education and counseling through their health insurance plan.
101. Without immediate injunctive and declaratory relief as requested herein, Plaintiffs are suffering and will continue to suffer irreparable harm.
102. Plaintiffs have no adequate remedy at law. FIRST CLAIM FOR RELIEF
(Violation of the Religious Freedom Restoration Act
42 u.s.c. § 2000bb)
103. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. 104. Plainti!Ts' sincerely held religious beliefs prohibit them from providing coverage for
abortion-inducing drugs and related education and counseling in Plaintiff Cherry Creek Mortgage Co., Inc.'s employee health insurance plan.
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105. When Plaintiffs comply with their sincerely held religious biblical beliefs on abortioninducing drugs and related education and counseling, they exercise religion within the meaning of the Religious Freedom Restoration Act.
106. The HHS Mandate imposes a substantial burden on Plaintiffs' religious exercise and coerces them to change or violate their sincerely held religious beliefs.
I07. The HHS Mandate chills Plaintiffs' religious exercise within the meaning of RFRA. 108. The HHS Mandate exposes Plaintiffs to substantial fines and/or financial burdens for
their religious exercise if they fail and refuse to comply with the HHS Mandate. 109. The HHS Mandate exposes Plaintiffs to substantial competitive disadvantages because of
uncertainties about their health insurance benefits caused by the HHS Mandate. 110. The HHS Mandate furthers no compelling governmental interest and is not narrowly
tailored to any compelling governmental interest. 111. The HHS Mandate is not the least restrictive means of furthering Defendants' stated
interests. 112. The HHS Mandate violates RFRA.
WHEREFORE, the Plaintiffs pray for the relief set forth below.
SECOND CLAIM FOR RELIEI<' (Violation of F1·ee Exe1·cise Clause of the First Amendment
to the United States Constitution) 113. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. 114. Plaintiffs' sincerely held religious beliefs prohibit them timn providing coverage for
abortion-inducing drugs and related education and counseling in Plaintiff Cherry Creek Mortgage Co., Inc.'s employee health insurance plan.
23

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 24 of 35
115. When Plaintiffs comply with their sincerely held religious beliefs on abortion-inducing drugs and related education and counseling, they exercise religion within the meaning of the Free Exercise Clause.
116. The HHS Mandate is not neutral and is not generally applicable. 117. Defendants have created categorical "exemptions" and individualized "exemptions'' to
the HHS Mandate. 118. The HHS Mandate furthers no compelling governmental interest. 119. The HHS Mandate is not the least restrictive means offurthering Defendants' stated
interests. 120. The HHS Mandate coerces Plaintiffs to change or violate their sincerely held religious
beliefs. 121. The HHS Mandate chills PlaintitTs' religious exercise. 122. The HHS Mandate exposes Plaintiffs to substantial fines and/or financial burdens for
their religious exercise. 123. The HHS Mandate exposes Plaintiffs to substantial competitive disadvantages because of
uncertainties about its health insurance benefits caused by the HHS Mandate. 124. The HHS Mandate imposes a substantial burden on Plaintitrs' religious exercise. 125. The HHS Mandate is not narrowly tailored to any compelling governmental interest. 126. By design, Defendants framed the HHS Mandate to apply to some religious Americans
but not to others, resulting in discrimination among religions. 127. Defendants have created exemptions to the HHS Mandate for some religious believers
but not others based on characteristics of their beliefs and their religious exercise.
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Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 25 of 35
128. Defendants designed the HHS Mandate, the religious exemption thereto, and the ·'compromise" and guidance allowances thereto, in a way that makes it impossible for Plaintiffs and other similar religious Americans to comply with their sincerely held religious beliefs.
129. Defendants promulgated both the HHS Mandate and the religious exemption/allowances with the purpose and intent to suppress the religious exercise of Plaintiffs and others.
130. The HHS Mandate violates Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
THIRD CLAIM FOR RELIEF (Violation of the Establishment Clause of the First Amendment to the United States Constitution) 131. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. 132. The First Amendment's Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 133. To determine whether religious persons or entities like Plaintiffs are required to comply with the HHS Mandate, are required to continue to comply with the HHS Mandate, are eligible for an exemption or other accommodations, or continue to be eligible for the same, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Plaintiffs. 134. Obtaining sufficient information for the Defendants to analyze the content of Plaintiffs' sincerely held religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion and results in the non-neutral treatment of religions.
25

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 26 of 35
135. The HHS Mandate discriminates among religions and among denominations, favoring some over others, and exhibits a hostility to religious beliefs and/or an excessive entanglement with religion.
136. The HHS Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortion-inducing drugs and related education and counseling and imposes it upon all religionists who must either conform their consciences to the HHS Mandate or suffer the penalties.
137. The HHS Mandate violates Plaintiffs' rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
FOURTH CLAIM FOR RELIEF (Violation of the Free Speech Clause of the First Amendment
to the United States Constitution) 138. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. 139. Defendants' requirement of knowingly providing insurance coverage for abortion-
inducing drugs pursuant to the HHS Mandate also requires Plaintiffs to provide related education and counseling, i.e., expressive speech, and thus forces Plaintiffs to speak in a manner contrary to their religious beliefs. 140. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 141. The HHS Mandate therefore violates Plaintiffs' rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below.
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Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 27 of 35
I•'IFTH CLAIM FOR RELIEF (Violation of the Administrative Procedm·e Act)
142. Plaintiffs reallege all matters set forth above and incorporate them herein by reference. 143. Because they did not give proper notice and an opportunity for public comment,
Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 144. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 145. Therefore, Defendants have taken agency action not in accordance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 146. In promulgating the HHS Mandate, Defendants failed to consider the constitutional and statutory implications of the HHS Mandate on Plaintiffs and similar persons. 147. Defendants' explanation (and lack thereof) for its decision not to exempt Plaintiffs and similarly situated religionists and their entities from the HHS Mandate runs counter to the evidence submitted by religious Americans during the comment period. 148. Thus, Defendants' issuance of the HHS Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the HHS Mandate fails to consider the full extent of its implications and it docs not take into consideration the evidence against it. 149. As set forth above, the HHS Mandate violates RFRA and the First and Fifth Amendments to the United States Constitution. 150. The HHS Mandate is also contrary to the provisions of the Affordable Care Act which state that "nothing in this title"-i.e., title I of the Act, which includes the provision dealing with "preventive services"-"shall be construed to require a qualified health plan to provide
27

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 28 of 35
coverage of[abortion] services ... as part of its essential health benefits for any plan year." Section 1303(b)(I)(A). As is described in detail above, some of the drugs included as "FDAapproved contraceptives" under the HHS Mandate cause abortions by causing the demise of human embryos before and/or after implantation. 151. The HHS Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." 152. The HHS Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that "No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions." 153. The HHS Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, the Plaintiffs pray for the relief set forth below. PRAYER FOR RELIEF
Plaintiffs respectfully request the following relief:
28

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 29 of 35
A. That this Court enter a judgment declaring the HHS Mandate and its application to Plaintiffs and others similarly situated but not before the Court to be an unconstitutional violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them;
B. That this Court enter a preliminary and a permanent injunction prohibiting Defendants from applying the HHS Mandate to Plaintiffs and others similarly situated but not before the Court in a way that substantially burdens the religious beliefs of Plaintiffs or any other person in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs and others not before the Court by requiring them to provide health insurance coverage for abortion-inducing contraception drugs, abortifacient drugs, and related education and counseling to their employees;
C. That this Court award Plaintiffs their court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988);
D. That this Court grant such other and further relief as may be just and proper. .JURY DEMAND
Plaintiffs demand a jury on all issues so triable.
29

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 30 of 35
Respectfully submitted this 41h day of March, 2013.
L ANCE D EFENDING FREEDOM
7 1 E. Maplewood Avenue, Suite 100 reenwood Village, CO 80111
(0) 720-689-2410 (F) 303-694-0703 mjnorton@alli ancedefe nclin gfreeclom.org
Steven H. Aden Matthew S. Bowman
ALLIANCE D EFEND ING FREEDOM
801 G Street, NW, Suite 509 Washington, DC 20001 Tel.: 202-393-8690 Fax: 202-347-3622 s acl e n@ alliancecl efenclin gfreeclo m .org mbowm an@all iancedefenclingfreedom.org
David A. Cortman
A LLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 Tel.: 770-339-0774 Fax.: 770-339-6744 dcortman @alliancedefendingfreedom.org
and
Natalie L. Decker The Law Office of Natalie L. Decker, LLC 26 W. Dry Creek Cr., Suite 600 Littleton, CO 80120 (0) 303-730-3009 (F) 303-484-5631 natalie@denverlawsolutio ns .com
30

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 31 of 35

VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty ofpe1jmy that the facts set forth in foregoing Verified Complaint
are true and correct.
~l ..sr
Executed on this _ day of February, 2013.

S tate of Colorado )
:re (fc,v-:sor\ ) ss.
County of ·Affi~ahere )

~.-

KERRY BLEIKAMP

.

NOTARY PUBLIC

·.~

STATE OF COLORADO

'~

NOTARY 10 20084024292

-~~!y COMMISSION EXPIRES AUGUST 10 2016

Acknowledged, subscribed, and sworn to before me by W. L. (BILL) ARMSTRONG this 2.\$t day of February, 2013.

Witness my hand and seal.

My commission expires:

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 32 of 35
VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty ofpe1jury that the facts set f01ih in foregoing Verified Complaint are true and correct.
Executed on this _1 tit day of February 2013 .
'John A. Ma JOHN A. MAY
State of Colorado ) ) ss.
County of Arapahoe ) Acknowledged, subscribed, and sworn to before me by JOHN A. MAY
this 7?1!" day of Febmary, 2013.
Witness my hand and seal. My commission expires:
My Commission Expires 02/04!201_4

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 33 of 35
VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty of perjury that the facts set fo rth in fo regoing Verified Complaint are true and con·ect.
Executed on this 2.1 day of Februar , 2013.
WILLIAM L. (WIL) ARMSTRONG III
State of Co lorado ) ) ss.
County of Arapahoe ) Acknowledged, subscribed, and sworn to before me by WILLIAM L. (WIL)
ARMSTRONG III this ([l day of February, 20 13.
Witness my hand and seal.

-..... .....

- - ~ .....

STEPHANIE BWETHERBY

~

Notary Public

~

State of Colorado

- - --

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 34 of 35

VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty ofpetjury that the facts set forth in foregoing Verified Compl aint
are true and correct.
ttl.
Executed on this ?__ day of February, 2013.
~~·
s/Jeffrey S May JEFFREYS . MAY, individually and as President and CEO ofPiaintiffCheny Creek Mortgage Co., Inc.

State of Colorado ) ) ss.
County of Arapahoe )

Acknowledged, subscribed, and sworn to before me by JEFFREYS. MAY, individuall y and as President and CEO of Plaintiff Cherry Creek Mortgage Co., Inc. this 7 7'.i!day of February, 20 13.

J/tf;g;,c. a Witness my hand and seal.
My commission expires

~

Notary Public

Case 1:13-cv-00563-RBJ Document 1 Filed 03/05/13 USDC Colorado Page 35 of 35

VERIFICATION OF VERIFIED COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty of perjury that the facts set forth in foregoing Verified Complaint are ttue and correct.
Executed on this;<5 day ofFebruary, 20 13.
a..Ltwv 1 .. sl~ 1~ ,tl:h{:y;~Avv . Shanahan V\ VL. )'VIIVvj
DOROTHY A. SHANAHAN

State of Colorado )

County

of

A'D-t oa'p-'!~o\ce._s

) )

ss.

Acknowledged, subscribed, and sworn to before me by DOROTHY A. SHANAHAN this
ZS'~ ay of February, 2013.

Witness my hand and seal.

My commi ssion expires: 08-29 - \ -;-

CHRISTINE FORSYTHE.
NOTARY PUBLIC STATE OF COLORADO NOTARY 10 20114054804
MY COMMISSION EXPIRES 812912015

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 13-cv-00563-RBJ
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor, JACOB J. LEW, in his official capacity as Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
The parties’ respective responses to the Court’s order of August 1, 2013 show that they
sharply disagree as to whether plaintiffs’ pending appeal divests this Court of jurisdiction to
reconsider its denial of a preliminary injunction in light of the en banc decision in Hobby Lobby
Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013). They do appear to agree
that if the Court has, or reacquires, jurisdiction, an evidentiary hearing is not necessary.
1

If (1) plaintiffs file a motion to suspend their appeal pending reconsideration of the injunction issue by this Court, which the government has indicated it will not oppose, or (2) the defendant files a similar motion in the Circuit, and (3) either as a result of such a motion by either party or sua sponte the Tenth Circuit remands the case to this Court to reconsider its decision in light of Hobby Lobby, the Court will then do so.
DATED this 19th day of August, 2013. BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 13-cv-00563-RBJ
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor, JACOB J. LEW, in his official capacity as Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
The case is before the Court again on plaintiffs’ motion for a preliminary injunction. For
the reasons set forth herein, the Court now grants the motion.
Facts
Plaintiffs, Cherry Creek Mortgage Co., Inc. and its owners, sued the government to
enjoin application of certain parts of the Patient Protection and Affordable Care Act and the
1

Health Care and Education Reconciliation Act (collectively the “Affordable Care Act”) to them. Specifically, plaintiffs challenge what they call the “HHS Mandate,” which requires certain employers, including Cherry Creek, to include coverage for what the plaintiffs consider to be abortion-inducing drugs and devices in the company’s group health insurance plan. The gist of the claim is that forcing Cherry Creek to provide such coverage is a substantial burden on the individual owners’ right to exercise their anti-abortion beliefs as practicing Evangelical Christians.
Hobby Lobby. There have been several lawsuits similar to this one filed in various jurisdictions, including at least three in this district. In many if not all of them, plaintiffs sought a preliminary injunction. As of the time of the preliminary injunction hearing in this case the courts, both at the district and circuit level, were split. One of the decisions denying a preliminary injunction was that of Judge Heaton in the Western District of Oklahoma. Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 1278 (W.D. Okla. 2012). Significantly, a two-judge motions panel of the Tenth Circuit then denied plaintiffs’ motion for a preliminary injunction pending appeal in that case. Hobby Lobby Stores, Inc. v. Sebelius, no. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012). The panel concluded: “We do not think there is a substantial likelihood that this court will extend the reach of RFRA1 to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.” Id. at *3. The Tenth Circuit, however, agreed to hear the matter en banc and set oral argument for May 23, 2013, not quite two weeks after the preliminary injunction hearing in this Court in the present case. The motion panel’s conclusion that plaintiffs probably could not establish a substantial likelihood of success, coupled with the fact that the en banc argument was imminent,
1 The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb to bb-4.
2

were influential factors in this Court’s denial of the motion for a preliminary injunction. See Transcript, May 10, 2013 [#42] at 89-97. The Court noted, of course, that it would follow the lead of the en banc panel once its decision was announced. Id. at 98. Shortly thereafter plaintiffs filed a notice of appeal. [#39].
The en banc panel did come out differently. First, by way of quick review, the party seeking the injunction must show “(1) likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby Stores, Inc. v. Sebelius, No. 2013 WL 3216103, at *8 (10th Cir. June 27, 2013) (en banc). A majority of five judges held that the district court erred in concluding that the plaintiffs had not demonstrated a likelihood of success on their RFRA claim. Id. at *1. The same majority of five judges also held that plaintiffs had satisfied the irreparable harm element of the preliminary injunction standard. Id. A plurality of four judges also concluded that plaintiffs had satisfied the other two elements (balance of the equities and public interest). The court therefore reversed the district court denial of a preliminary injunction, but because there was not a majority as to the third and fourth prongs of the test, the court remanded the case with instructions that the district court address those factors and then reassess whether to grant or deny the preliminary injunction. Id. at **1-2.
On remand, after holding another hearing (apparently limited to briefs and oral argument) Judge Heaton found that the balance of the equities favored the plaintiffs, and that the public interest favored the preservation of the status quo until the issues raised by the plaintiffs could be finally resolved on their merits. Accordingly, the court granted a preliminary injunction restraining the government defendants from “any effort to apply or enforce, as to plaintiffs, the
3

substantive requirements imposed in 42 U.S.C. § 300gg-13(a)(4). Hobby Lobby Stores, Inc. v. Sebelius, No. CIV-12-1000, 2013 WL 3869832, at *2 (W.D. Okla. July 19, 2013).
Further Proceedings in the Present Case Shortly after the Tenth Circuit’s en banc decision in Hobby Lobby was announced plaintiffs asked this Court to reverse its previous denial of the preliminary injunction. [#48]. The government filed a brief in opposition, arguing that the irreparable harm analysis here is different than that which existed in Hobby Lobby, and that in any event, the plaintiffs had not established that the balance of the equities and the public interest factors (which were the subject of the remand in Hobby Lobby) favored the entry of a preliminary injunction. [#49]. That response was filed one day before Judge Heaton issued the injunction on remand. On August 1, 2013 this Court issued an order asking whether the government continued to oppose a preliminary injunction here and, assuming that it did, posing two questions to both parties: (1) did plaintiffs’ pending appeal deprive this Court of jurisdiction to enter the injunction as requested, and (2) if not, is there evidence in the record on which the Court can act without another hearing. The parties took conflicting positions concerning the Court’s jurisdiction to act. However, that is now moot in view of the circuit’s resolution of plaintiffs’ appeal, discussed below. With respect to the second question, the parties agreed that another hearing was not only unnecessary but inappropriate. Plaintiffs’ response [#52] at 6; government’s response [#51] at 6. The government pointed to certain documents cited in its original brief in opposition to the motion for preliminary injunction, namely, an Institute of Medicine report; the preambles to the July 2010 interim final rules and the February 2012 final rules; and portions of the legislative history of the preventive services coverage provisions. [#51 at 6]. Those documents, the
4

government contends, “support the government’s position that an injunction is contrary to the public interest because it would interfere with the government’s goals of improving the health of women and children and promoting public equality and that an injunction would harm third parties – namely the employees of Cherry Creek.” Id. The government also cited certain “admissions” in the plaintiffs’ complaint.
The plaintiffs took a different tack, and a little background will help. At the beginning of the preliminary injunction hearing, I asked the parties whether the plaintiffs planned on presenting evidence. Plaintiffs’ counsel responded that plaintiffs would not be presenting evidence because the parties had stipulated that the facts alleged in plaintiffs’ verified complaint may be accepted as true for purposes of preliminary injunction determination. Transcript [#42] at 3. Government counsel agreed. Id. at 4. Now, in response to the Court’s second question, plaintiffs took the position that their allegations, accepted as true, provided all the information the Court needs to grant the injunction. [#51 at 5-12]. In contrast, plaintiffs argue, the government relies on hearsay and speculation. Id. at 5.
The parties then jointly moved in the Tenth Circuit for an order summarily reversing this Court’s denial of a preliminary injunction and remanding the case for consideration of the remaining preliminary injunction factors in light of the en banc decision in Hobby Lobby. The court agreed, finding that “plaintiff Cherry Creek has established a substantial likelihood of success on the merits of its RFRA claim, and that the district court erred in concluding otherwise.” Armstrong v. Sebelius, No. 13-1218, 2013 WL 4757949, at *1 (10th Cir. Sept. 5, 2013). The court remanded the case for further proceedings consistent with the Hobby Lobby decision. Id.
5

Conclusions This Court denied plaintiffs’ motion for a preliminary injunction based on its conclusion that plaintiffs had not established a substantial likelihood of success on the merits. That conclusion has now been reversed. The case returns, therefore, for this Court’s consideration of the remaining three prongs of the preliminary injunction standard. As indicated, the parties agree that the Court need not, indeed should not, take further evidence. Neither party has requested further oral argument, although there has been only a short time since the remand was ordered. In any event, I am satisfied that further argument would not be of material assistance, and therefore I turn to the remaining issues aided by the record already established. Irreparable Harm The irreparable harm issue was essentially resolved in plaintiffs’ favor by the holding of the five-judge majority on that issue in Hobby Lobby. In its response to the plaintiffs’ motion to enter an injunction “forthwith” following the en banc decision, the government attempted to distinguish our case on the basis that plaintiffs waited until three months after the contraceptive coverage requirement took effect before filing this suit and seeking preliminary injunctive relief, and that during that three-month period plaintiffs continued to provide the coverage to which they object. [#49 at 1]. I am not persuaded. In the verified complaint [#1], the allegations of which have been stipulated as true for this purpose, plaintiffs allege that after they discovered that Cherry Creek’s health insurance plan provided the objectionable coverage to the approximately 400 of its approximately 730 employees who presently participate in the plan, they immediately expressed their religious objections to the insurer. They received confirmation that, without injunctive relief from a court, the insurer was required by the HHS Mandate to
6

provide the coverage. Therefore, Cherry Creek complied with the mandate but began to explore ways of eliminating the coverage. Id. at ¶¶ 8-11. This suit was filed on March 5, 2013. Under the circumstances, I cannot find that plaintiffs slept on their rights.
The verified complaint alleges, among other things, that being forced to continue to comply with the mandate “will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employee,” id. ¶ 98, and “will make it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits,” id. ¶ 99. They further allege that, if they refuse to provide health insurance to their employees or omit the objectionable drugs and devices from the coverage, they will be subjected to enforcement actions and very substantial monetary penalties that could put Cherry Creek out of business. Id. at ¶¶ 76-81. Beyond that, in the eyes of the individual plaintiffs, each day that Cherry Creek is forced to provide the objectionable coverage their sincerely held religious beliefs are violated. Id. passim. Accepting all of these allegations as true, the Court concludes that plaintiffs have met their burden of showing “a likely threat of irreparable harm to the movant.”
Balancing the Harms The third requirement for a preliminary injunction is that “the harm alleged by the movant outweighs any harm to the non-moving party.” On remand Judge Heaton found that “the government’s interest in providing Hobby Lobby and Mardel’s 13,000 employees with access to all FDA-approved contraceptive methods, through their employment-based health plans, is not insignificant.” Hobby Lobby Stores, Inc. v. Sebelius, 2012 WL 3869832 at *1. However, he tempered his assessment by noting that the bulk of the FDA-approved methods of contraception will still be available to the employees notwithstanding the preliminary injunction (because the
7

plaintiffs did not object to such methods), unlike other employees who were exempted from the contraceptive-coverage requirement of the Affordable Care Act. He compared that to the harms, particularly the substantial monetary penalties and violation of religious rights, that were alleged by the plaintiffs. On balance, “the court finds that the threatened injury to the corporations if the injunction does not issue outweighs the potential harm to the government.” Id.
I take it as a given that the fact that the legislation and regulations thereunder were enacted reflects a significant governmental interest. It is difficult, possibly all but impossible, to compare that interest to the private but not insignificant interest of Cherry Creek and its owners. Nevertheless, when I attempt to balance what might be a temporary infringement on the government’s interest (until the merits are ultimately resolved by the Supreme Court) with what on the face of the stipulated facts is a Hobson’s Choice between a continuing infringement of religious freedom or potentially crippling monetary penalties, I join Judge Heaton in concluding that the balance of the harms tips in favor of the plaintiffs for purposes of preliminary injunctive relief.
Public Interest The question is whether an injunction is in the public interest. There is, long has been, and probably always will be, division within the public on issues relating to abortion. The resolution of the legal challenges to the Affordable Care Act such as those presented in this case will not end that division, but those challenges need resolution, and that is why we have courts and the rule of law. There is a general public interest in preserving the status quo while the legal proceedings take their course. In that conclusion I again join Judge Heaton. See Hobby Lobby, 2013 WL 3869832 at *1.
8

There is one irony presented by this case that was not presented in Hobby Lobby. Here, the status quo is that Cherry Creek Mortgage has been and still is providing the coverage to which plaintiffs object. That being so, the preliminary injunction does not preserve the status quo, which is the stuff of most injunctions, but instead alters it. The answer is that the status quo would be Cherry Creek’s refusing to provide coverage for what they classify as abortifacients had they not unwittingly begun to provide the coverage and then run into an insurmountable roadblock when they directed their insurer to terminate the coverage. As such, the substance of the order entered here today is to preserve the status quo as it existed before the Affordable Care Act until the merits of the claims can be properly decided.
Order The defendants, their officers and employees are preliminarily enjoined from any further effort to apply or enforce against Cherry Creek Mortgage Co., Inc. or the individual plaintiffs the preventive services requirements found at 42 U.S.C. § 300gg-13(a)(4) or the application of penalties found in 26 U.S.C. § 4980D, 26 U.S.C. § 4980H, and 29 U.S.C. § 1132, pending further order of this Court. DATED this 17th day of September, 2013.
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:13-cv-00563-RBJ Document 55 Filed 09/05/13 USDC Colorado Page 1 of 5

Appellate Case: 13-1218 Document: 01019120550 Date Filed: 09/05/2013 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG, III; JOHN A. MAY; DOROTHY A. SHANAHAN; CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,

September 5, 2013
Elisabeth A. Shumaker Clerk of Court

Plaintiffs-Appellants,

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

No. 13-1218 (D.C. No. 1:13-CV-00563-RBJ)
(D. Colo.)

Defendants-Appellees.

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PROLIFE OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER;

1 of 5

Case 1:13-cv-00563-RBJ Document 55 Filed 09/05/13 USDC Colorado Page 2 of 5 Appellate Case: 13-1218 Document: 01019120550 Date Filed: 09/05/2013 Page: 2

PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES,

Amici

Curiae.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.

Cherry Creek Mortgage Co., Inc. (Cherry Creek) and its owners, managers and voting shareholders filed an interlocutory appeal from the district court’s denial of their request for a preliminary injunction to enjoin enforcement of the preventive services coverage mandate of the Patient Protection and Affordable Care Act and its related regulations. The district court denied the request after concluding that plaintiffs were not likely to succeed on the merits of their underlying complaint, which alleged that this portion of the Act violated their rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The district court did not address the other preliminary injunction factors.

*

This panel has determined that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument. This order and judgment

is not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Case 1:13-cv-00563-RBJ Document 55 Filed 09/05/13 USDC Colorado Page 3 of 5 Appellate Case: 13-1218 Document: 01019120550 Date Filed: 09/05/2013 Page: 3
Defendants and plaintiffs now jointly move this court to summarily reverse the denial order and remand to the district court to consider the remaining preliminary injunction factors in light of our recent en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, __ F.3d __, 2013 WL 3216103 (10th Cir. June 27, 2013). Upon consideration, we agree that plaintiff Cherry Creek has established a substantial likelihood of success on the merits of its RFRA claim, and that the district court erred in concluding otherwise. Consequently, we grant the motion for remand, vacate the district court’s order, and remand for further proceedings consistent with the Hobby Lobby decision.
We deny as moot plaintiffs’ request for a motion for injunction pending appeal.
Entered for the Court Per Curiam
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Case 1:13-cv-00563-RBJ Document 55 Filed 09/05/13 USDC Colorado Page 4 of 5

Appellate Case: 13-1218 Document: 01019120551 Date Filed: 09/05/2013 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
September 05, 2013

Douglas E. Cressler Chief Deputy Clerk

Mr. Steven H. Aden Mr. Matthew Scott Bowman Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, DC 20001
Mr. David Andrew Cortman Alliance Defending Freedom 1000 Hurricane Shoals Road, NE Suite D-1100 Lawrenceville, GA 30043-0000
Ms. Natalie Decker Law Office of Natalie L. Decker 26 West Dry Creek Circle, Suite 600 Littleton, CO 80120
Mr. Michael J. Norton Alliance Defending Freedom 7951 East Maplewood Avenue Suite 100 Greenwood Village, CO 80111

RE: 13-1218, Armstrong, et al v. Sebelius, et al District docket: 1:13-CV-00563-RBJ

Dear Counsel:
Enclosed is a copy of the order and judgment issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal

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Case 1:13-cv-00563-RBJ Document 55 Filed 09/05/13 USDC Colorado Page 5 of 5
Appellate Case: 13-1218 Document: 01019120551 Date Filed: 09/05/2013 Page: 2 Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R.35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: Michelle Renee Bennett Alisa Beth Klein Ovide Marc Lamontagne Mark B. Stern
EAS/ad

Elisabeth A. Shumaker Clerk of the Court

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 13-cv-00563-RBJ
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,
Plaintiffs,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor, JACOB J. LEW, in his official capacity as Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
Plaintiffs have moved for an order reversing this Court’s order of May 10, 2013, and
therefore granting a preliminary injunction as requested, in light of the en banc decision in
Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013). Defendants
oppose the motion on two grounds. First, they suggest that Hobby Lobby is factually
distinguishable from this case. Second, they note that the majority in Hobby Lobby only
1

resolved the first two elements of a preliminary injunction (likelihood of success on the merits and irreparable injury), and that the case therefore was remanded to the trial court to address the other two elements (balance of equities, public interest). They suggest that in this case, as in Hobby Lobby, those two elements were not expressly addressed by the trial court. Plaintiffs have not submitted a reply.
This Court did make it clear that it intended to follow the lead of the Tenth Circuit en banc panel once its decision was reached. I also note that on remand Judge Heaton addressed the two elements, resolved them against the government, and entered a preliminary injunction in plaintiffs’ favor. Hobby Lobby Stores, Inc. v. Sebelius, no. CIV-12-1000-HE, 2013 WL 3869832 (W.D. Okla. July 19, 2013). The government’s counsel in the present case served as the government’s counsel on remand in Hobby Lobby. The government’s opposition to plaintiffs’ pending motion in the present case was filed the day before Judge Heaton’s order was issued. I do not know whether this affects the government’s thinking on the pending motion here.
Assuming that the government wishes to press its opposition to the entry of a preliminary injunction, the Court directs both parties, as promptly as possible and in any event no later than 14 days from this date, to address the following questions:
1. Does the plaintiffs’ pending appeal in the present case deprive this Court of jurisdiction to enter the injunction as requested? See, e.g., State of Colorado v. Idarado Mineral Co., 916 F.2d 1486, 1490 n.2 (10th Cir. 1990). See also Pinson v. Pacheco, 424 F. App’x 749, 754 (10th Cir. 2011); Fairchild Semiconductor Corp. v. Third Dimension, no. 2009-1168, 2009 WL 790105, at *1 (Fed. Cir. March 25, 2009). The only reference to this issue in the motion and response is the plaintiffs’ reference to Fed. R. Civ. P. 62(c).
2

2. If this Court can address the issue, where in the record of this case does the Court find evidence relevant to the two unaddressed factors? If there is no evidence in the record, on what basis can this Court decide these issues without another hearing as was the case with Judge Heaton?
DATED this 1st day of August, 2013. BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
3

 
 Case 1:13-cv-00563-RBJ Document 61 Filed 10/17/13 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-00563-RBJ-BNB
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation;
Plaintiffs, v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor; JACOB LEW, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.
UNOPPOSED MOTION TO EXTEND STAY OF DISTRICT COURT PROCEEDINGS
Defendants hereby move to continue the stay currently in place in the above-captioned case. On October 1, 2013, this Court issued an Order granting the government’s motion to stay case in light of lapse of appropriations (ECF No. 60). Congress has now restored appropriations to the Department of Justice, and thus, a stay in light of lapse of appropriations is no longer necessary. Defendants, however, move to continue the stay for the alternative reason discussed below.
Courts of appeals in the Tenth, Third, and Sixth circuits have issued decisions in cases involving legal issues that are substantially similar to those presented in this case; and, in each case, the non-prevailing party has filed a petition for writ of certiorari seeking Supreme Court

Case 1:13-cv-00563-RBJ Document 61 Filed 10/17/13 USDC Colorado Page 2 of 4
review. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), petition for cert. pending, No. 13-354 (filed Sept. 19, 2013); Conestoga Wood Specialties Corp. v. Secretary of HHS, 724 F.3d 377 (3d Cir. 2013), petition for cert. pending, No. 13-356 (filed Sept. 19, 2013); Autocam Corp. v. Sebelius, 2013 WL 5182544 (6th Cir. Sept. 17, 2013), petition for cert. pending, No. 13-482 (filed Oct. 15, 2013). If the Supreme Court grants one or more of these petitions, its decision on the merits of the appeal will no doubt affect future proceedings in this case.
Additionally, the district court in Hobby Lobby has stayed district court proceedings in that case “pending the Supreme Court’s disposition of the government’s petition for a writ of certiorari [in Hobby Lobby], and if the petition is granted, the Supreme Court’s decision.” Hobby Lobby v. Sebelius, No. CIV-12-1000-HE, ECF No. 84 (W.D. Okla. Sept. 24, 2013). And, in another case in this District that is substantially similar to the instant case, after affirming the district court’s grant of a preliminary injunction to plaintiffs, the Tenth Circuit remanded to the district court with instructions to “abate further proceedings until the Supreme Court completes its consideration of the Hobby Lobby case.” Newland v. Sebelius, No. 12-1380, Order and Judgment (10th Cir. Oct. 3, 2013).
For these reasons, defendants respectfully request that this Court stay district court proceedings in this case pending the Supreme Court’s disposition of the petitions for writ of certiorari that have been filed in Hobby Lobby, Conestoga, and Autocam and, if one or more of those petitions is granted, until the Supreme Court issues its decision.
Opposing counsel has authorized counsel for the government to state that plaintiffs do not oppose this motion.
2

Case 1:13-cv-00563-RBJ Document 61 Filed 10/17/13 USDC Colorado Page 3 of 4

Respectfully submitted this 17th day of October, 2013,
STUART F. DELERY Assistant Attorney General

JOHN United

F. WALSH States Attorney

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

Trial United Civil

_/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

Attorneys

for Defendants.

3

Case 1:13-cv-00563-RBJ Document 61 Filed 10/17/13 USDC Colorado Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on October 17, 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
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No 13-cv-00563-RBJ
W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG III; JOHN A. MAY; DOROTHY A. SHANAHAN; and CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation,
Plaintiffs,
v.
SYLVIA M. BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, in his official capacity as Secretary of the United States Department of Labor, JACOB J. LEW, in his official capacity as Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
ORDER
The parties have stipulated that a permanent injunction may be entered in light of the
Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).
However, they cannot agree on the form of the injunction and instead appear to be jockeying for
position on the next round of litigation that might develop if the law as it existed when the Court
decided Hobby Lobby were to change. To be clear, this Court does not in this Order address any
1

statutory or regulatory changes in the law that might be enacted in the future. The Court intends only to apply the holding of Hobby Lobby to the named plaintiffs in this case.
In Hobby Lobby certain closely held, for-profit corporations and the individuals who owned or controlled them objected on religious grounds to the application to them of regulations that had been promulgated by the Department of Health and Human Services under the Patient Protection and Affordable Care Act of 2010. The Supreme Court held that the regulations, referred to as “the contraceptive mandate,” violated the plaintiffs’ rights under the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. It appears to this Court, as it apparently does to the parties in this case, that the holding applies as well to the present plaintiffs. With that in mind,
1. This Court declares that the regulations promulgated by the Department of Health and Human Services under the Patient Protection and Affordable Care Act of 2010 described in Hobby Lobby as “the contraceptive mandate” cannot lawfully be applied to Cherry Creek Mortgage Co., Inc. or to the individual plaintiffs in this case.
2. Defendants, their officers and employees are permanently enjoined from any further effort to enforce “the contraceptive mandate” as described in Hobby Lobby against Cherry Creek Mortgage Co., Inc. or against the individual plaintiffs.
3. As the prevailing parties, the plaintiffs are awarded their costs pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
4. Judgment shall enter accordingly. 5. Any motion by plaintiffs for attorneys’ fees pursuant to 42 U.S.C. § 1988(b) may be
filed within 14 days after entry of judgment. Fed. R. Civ. P. 54(d)(2). DATED this 29th day of September, 2014.
2

BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
3

 
 Case 1:13-cv-00563-RBJ Document 82 Filed 10/07/14 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00563-RBJ W.L. (BILL) ARMSTRONG, JEFFREY S. MAY, WILLIAM L. (WIL) ARMSTRONG III, JOHN A. MAY, DOROTHY A. SHANAHAN AND CHERRY CREEK MORTGAGE CO., INC.,
Plaintiffs, v. SYLVIA M. BURWELL, THOMAS E. PEREZ, JACOB J. LEW, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
AMENDED FINAL JUDGMENT
This Amended Final Judgment amends and replaces the Final Judgment issued on September 28, 2014 (ECF No. 79). In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a), the following Amended Final Judgment is hereby entered.
Pursuant to the ORDER, Document number 78, of Judge R. Brooke Jackson entered on September 29, 2014, it is ORDERED that judgment is entered in favor of the plaintiffs, W.L. (BILL) ARMSTRONG, JEFFREY S. MAY, WILLIAM L. (WIL) ARMSTRONG III, JOHN A. MAY, DOROTHY A. SHANAHAN and CHERRY CREEK

Case 1:13-cv-00563-RBJ Document 82 Filed 10/07/14 USDC Colorado Page 2 of 2
MORTGAGE CO., INC. and against the defendants, SYLVIA M. BURWELL, THOMAS E. PEREZ, JACOB J. LEW, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR and UNITED STATES DEPARTMENT OF THE TREASURY on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. It is
FURTHER ORDERED that the defendants, their officers and employees are permanently enjoined from any further effort to enforce “the contraceptive mandate” as described in Hobby Lobby against Cherry Creek Mortgage Co., Inc. or against the individual plaintiffs. It is
FURTHER ORDERED that the plaintiffs are AWARDED costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated at Denver, Colorado this 7th day of October, 2014. FOR THE COURT: JEFFREY P. COLWELL, CLERK
By: s/ J DYNES J DYNES Deputy Clerk

 
 Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 1 of 9
STAYED,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:13−cv−00563−RBJ

Armstrong et al v. Sebelius et al Assigned to: Judge R. Brooke Jackson Case in other court: USCA, 13−01218
USCA, 13−01480 Cause: 42:2000bb Religious Freedom Restoration Act.
Amicus

Date Filed: 03/05/2013 Date Terminated: 09/29/2014 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

ACLU

represented by Mark Silverstein American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net ATTORNEY TO BE NOTICED

Sara R. Neel American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: sneel@aclu−co.org ATTORNEY TO BE NOTICED

Amicus
LIBERTY, LIFE, AND LAW FOUNDATION

represented by Christopher Lynn Ingold Ingold Law, LLC 340 South Lemon Avenue #7213 Walnut, CA 91789 720−226−6026 Fax: 303−328−3531 Email: chrisingold@mac.com ATTORNEY TO BE NOTICED

Amicus Attorney General, State of Colorado

represented by Daniel D. Domenico Colorado Attorney General's Office Ralph L. Carr Colorado Judicial Center 1300 Broadway Denver, CO 80203 720−508−6000 Fax: 720−508−6032 Email: dan.domenico@state.co.us ATTORNEY TO BE NOTICED

Plaintiff
W. L. Armstrong also known as Bill Armstrong

represented by Michael Jeffrey Norton Thomas N. Scheffel &Associates, P.C. 3801 East Florida Avenue Suite 600 Denver, CO 80210

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 2 of 9

303−759−5937 Fax: 303−759−9726 Email: mnorton@tnslaw.com ATTORNEY TO BE NOTICED

Plaintiff Jeffrey S. May

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
William L. Armstrong, III also known as Wil Armstrong

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff John A. May

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dorothy A. Shanahan

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Cherry Creek Mortgage Co., Inc. a Colorado corporation

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services
Defendant Seth D. Harris in his official capacity as Acting Secretary of the United States Department of Labor
Defendant Jacob J. Lew in his official capacity as Secretary of the United States Department of the Treasury
Defendant United States Department of Health and Human Services
Defendant

represented by Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 3 of 9

United States Department of Labor

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

Defendant
United States Department of the Treasury

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

Date Filed 03/05/2013
03/05/2013
03/05/2013
03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/06/2013 03/06/2013 03/07/2013
03/15/2013 03/18/2013 03/18/2013

# Docket Text
1 COMPLAINT against Kathleen Sebelius, Seth D Harris, Jacob J Lew, United States Department of Labor, United States Department of the Treasury, United States Department of Health and Human Services (Filing fee $ 350, Receipt Number 1082−3255226), filed by Cherry Creek Mortgage Co., Inc., John A May, William L Armstrong, III, Jeffrey S May, W (Bill) L Armstrong, Dorothy A Shanahan. (Attachments: # 1 Civil Cover Sheet)(Norton, Michael) (Entered: 03/05/2013)
2 Exhibits in Support of 1 Complaint, by Plaintiffs W (Bill) L Armstrong, William L Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S May, John A May, Dorothy A Shanahan. (Attachments: # 1 Exhibit, # 2 Exhibit)(Norton, Michael) (Entered: 03/05/2013)
3 SUMMONS REQUEST as to Kathleen Sebelius, Seth D. Harris, Jacob J. Lew re 2 Exhibits, 1 Complaint, by Plaintiffs W (Bill) L Armstrong, William L Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S May, John A May, Dorothy A Shanahan. (Norton, Michael) (Entered: 03/05/2013)
4 NOTICE OF CASE ASSOCIATION by Plaintiffs W (Bill) L Armstrong, William L Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S May, John A May, Dorothy A Shanahan (Norton, Michael) (Entered: 03/05/2013)
5 CORPORATE DISCLOSURE STATEMENT. (Norton, Michael) (Entered: 03/05/2013)
6 Case assigned to Judge Richard P. Matsch and drawn to Magistrate Judge Boyd N. Boland. Text Only Entry. (ccovi, ) (Entered: 03/05/2013)
7 SUMMONS issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Magistrate Judge Consent Form) (ccovi, ) (Entered: 03/05/2013)
8 MEMORANDUM RETURNING CASE for reassignment by Senior District Judge Richard P. Matsch. (rpmcd ) (Entered: 03/06/2013)
9 CASE REASSIGNED pursuant to 8 Memorandum Returning Case. This case is reassigned to Judge R. Brooke Jackson. All future pleadings should be designated as 13−00563−RBJ−BNB. Text Only Entry (rpmcd) (Entered: 03/06/2013)
10 ORDER TO SET SCHEDULING CONFERENCE: The parties are ordered to set an initial scheduling conference in this Court (with Judge Jackson) pursuant to Fed. R. Civ. P. 16(b) and D.C.COLO.LCivR 16.1 no later than 45 days after the answer, motion to dismiss or other response to the complaint is filed. By Judge R. Brooke Jackson on 03/07/2013. (rbjsec. ) (Entered: 03/07/2013)
11 NOTICE of Entry of Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 03/15/2013)
12 MOTION for Preliminary Injunction by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 03/18/2013)
13 BRIEF in Support of 12 MOTION for Preliminary Injunction filed by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 03/18/2013)

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 4 of 9

03/18/2013
03/19/2013
03/21/2013
04/01/2013 04/02/2013 04/10/2013 04/12/2013 04/12/2013 04/15/2013 04/22/2013 04/24/2013 04/24/2013

14 MINUTE ORDER re: 12 MOTION for Preliminary Injunction filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May. The Court directs that counsel jointly contact Chambers at (303) 844−4694 to set a half−day evidentiary hearing. A 67−page brief is unreasonable and excessive, the Court does not wish to receive briefs exceeding 25 pages henceforth in this case. Plaintiffs' reply is limited to 5 pages. By Judge R. Brooke Jackson on 03/18/2013. Text Only Entry (rbjsec. ) (Entered: 03/18/2013)
15 SUMMONS Returned Executed by Cherry Creek Mortgage Co., Inc., Jeffrey S. May, W. L. Armstrong, William L. Armstrong, III, John A. May, Dorothy A. Shanahan. Seth D. Harris served on 3/11/2013, answer due 4/1/2013; Jacob J. Lew served on 3/14/2013, answer due 4/4/2013; Kathleen Sebelius served on 3/11/2013, answer due 4/1/2013; United States Department of Health and Human Services served on 3/11/2013, answer due 4/1/2013; United States Department of Labor served on 3/11/2013, answer due 4/1/2013; United States Department of the Treasury served on 3/14/2013, answer due 4/4/2013. (Norton, Michael) (Entered: 03/19/2013)
16 MINUTE ORDER re: 12 MOTION for Preliminary Injunction filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May. A half−day Evidentiary Hearing is scheduled for May 10, 2013 at 9:00 a.m. in Courtroom A 902 before Judge R. Brooke Jackson. By Judge R. Brooke Jackson on 03/21/2013. Text Only Entry (rbjsec. ) (Entered: 03/21/2013)
17 MOTION for Leave to File Excess Pages by Defendants 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. (Bennett, Michelle) (Entered: 04/01/2013)
18 ORDER denying 17 Motion for Leave to File Excess Pages. By Judge R. Brooke Jackson on 04/02/2013. Text Only Entry(rbjsec. ) (Entered: 04/02/2013)
19 BRIEF in Opposition to 12 MOTION for Preliminary Injunction filed by Defendants 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. (Bennett, Michelle) (Entered: 04/10/2013)
20 MOTION to File Amicus Brief In Opposition to Plaintiffs' Motion For Preliminary Injunction by Amicus ACLU. (Attachments: # 1 Exhibit A − Amicus Brief, # 2 Corporate Disclosure Statement)(Silverstein, Mark) (Entered: 04/12/2013)
21 NOTICE of Entry of Appearance by Sara J. Rich on behalf of ACLU (Rich, Sara) (Entered: 04/12/2013)
22 RESPONSE to 20 MOTION to File Amicus Brief In Opposition to Plaintiffs' Motion For Preliminary Injunction filed by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 04/15/2013)
23 REPLY to Response to 12 MOTION for Preliminary Injunction filed by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 04/22/2013)
24 AMENDED REPLY to Response to 12 MOTION for Preliminary Injunction, filed by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Modified on 4/24/2013 to indicate that this is an amended reply (alvsl).) (Entered: 04/24/2013)
25 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint, by Defendants 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. (Bennett, Michelle) (Entered: 04/24/2013)

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 5 of 9

04/24/2013
04/24/2013 04/24/2013 04/26/2013 04/30/2013
04/30/2013 05/01/2013 05/01/2013 05/01/2013 05/01/2013 05/02/2013 05/02/2013 05/10/2013 05/16/2013

26 ORDER granting 20 MOTION to File Amicus Brief In Opposition to Plaintiffs' Motion For Preliminary Injunction. The federal decisions cited by the parties are divided as to whether ACLU amicus briefs have been accepted in similar cases. The response indicates that the amicus brief advocates the same position as the government and is essentially duplicative. To avoid having to read the amicus brief to resolve that issue, thereby defeating the purpose of the response, the Court asked a law clerk to do so and to advise whether the brief is duplicative. Based upon that source, the Court is satisfied that while the issues are similar, the analysis is somewhat different. The Court therefore is willing to consider the brief, just as it would be willing to consider an amicus brief from an organization opposed to the government's position. By Judge R. Brooke Jackson on 04/24/2013. Text Only Entry(rbjsec. ) (Entered: 04/24/2013)
27 ORDER granting 25 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint. By Judge R. Brooke Jackson on 04/24/2013. Text Only Entry(rbjsec. ) (Entered: 04/24/2013)
28 BRIEF in Opposition to 12 MOTION for Preliminary Injunction filed by Amicus ACLU. (Silverstein, Mark) (Entered: 04/24/2013)
29 RESPONSE to 12 MOTION for Preliminary Injunction filed by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 04/26/2013)
30 Unopposed MOTION for Leave to FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION by Amicus LIBERTY, LIFE, AND LAW FOUNDATION. (Attachments: # 1 Proposed Document Amicus Curiae Brief of LLLF)(Ingold, Christopher) (Entered: 04/30/2013)
31 CORPORATE DISCLOSURE STATEMENT. (Ingold, Christopher) (Entered: 04/30/2013)
32 ORDER granting 30 Unopposed MOTION for Leave to FILE AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION. By Judge R. Brooke Jackson on 05/01/2013. Text Only Entry(rbjsec. ) (Entered: 05/01/2013)
33 BRIEF in Support of 12 MOTION for Preliminary Injunction filed by Amicus LIBERTY, LIFE, AND LAW FOUNDATION. (Ingold, Christopher) (Entered: 05/01/2013)
34 NOTICE of Entry of Appearance by Daniel D. Domenico on behalf of Attorney General, State of Colorado (Domenico, Daniel) (Entered: 05/01/2013)
35 Unopposed MOTION to File Amicus Brief by Amicus Attorney General, State of Colorado. (Attachments: # 1 Proposed Document Amicus Brief)(Domenico, Daniel) (Entered: 05/01/2013)
36 ORDER granting 35 Motion to File Amicus Brief. The Clerk of Court's office is directed to file the amicus brief at [35−1]. By Judge R. Brooke Jackson on 05/02/2013. Text Only Entry(rbjsec. ) (Entered: 05/02/2013)
37 Amicus Curiae BRIEF in Support of 12 MOTION for Preliminary Injunction filed by Amicus Attorney General, State of Colorado. (Filed pursuant to Order at Dkt. No. 36 .) (alvsl) (Entered: 05/02/2013)
38 MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Hearing on Motion for Preliminary Injunction held on 5/10/2013. ORDERED:The Plaintiffs' Motion for Preliminary Injunction 12 is DENIED. Hearing concluded. Court Reporter: Kara Spitler. (wjmcd, ) (Entered: 05/10/2013)
39 NOTICE OF APPEAL as to 38 Order on Motion for Preliminary Injunction,, Motion Hearing,, Terminate Deadlines and Hearings, by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan (Filing fee $ 455, Receipt Number 1082−3364059) (Norton, Michael) (Entered: 05/16/2013)

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 6 of 9

05/17/2013 05/17/2013 05/21/2013
05/31/2013 06/03/2013 06/05/2013 06/05/2013 06/06/2013 07/01/2013 07/18/2013 08/01/2013 08/09/2013

40 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 39 Notice of Appeal, filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May to the U.S. Court of Appeals. ( Retained Counsel, Fee paid) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(lswsl ) (Entered: 05/17/2013)
41 USCA Case Number 13−1218 for 39 Notice of Appeal, filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May. (dbrow, ) (Entered: 05/17/2013)
42 TRANSCRIPT of Hearing on Plaintiffs' Motion for Preliminary Injunction held on 5−10−13 before Judge Jackson. Pages: 1−99. <P> NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.</P> Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. Release of Transcript Restriction set for 8/22/2013. (Spitler, Kara) (Entered: 05/21/2013)
43 Unopposed MOTION to Stay District Court Proceedings Pending Appeal by Defendants 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. (Bennett, Michelle) (Entered: 05/31/2013)
44 ORDER granting 43 Unopposed MOTION to Stay District Court Proceedings Pending Appeal. By Judge R. Brooke Jackson on 06/03/2013. Text Only Entry(rbjsec. ) (Entered: 06/03/2013)
45 TRANSCRIPT ORDER FORM re 39 Notice of Appeal, by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan, Defendant Seth D. Harris (Norton, Michael) (Entered: 06/05/2013)
46 REPORTER TRANSCRIPT ORDER FORM filed by Kara Spitler; Transcripts ordered 5/10/13. Confirmed on docket. (lswsl ) (Entered: 06/05/2013)
47 LETTER TO USCA and all counsel certifying the record is complete as to 39 Notice of Appeal, filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May. A transcript order form was filed stating that the necessary transcript is already on file. ( Appeal No. 13−1218) Text Only Entry (lswsl) (Entered: 06/06/2013)
48 MOTION for Order to F.R. Civ P. 62(c) and Request for Forthwith Determination by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Attachments: # 1 Proposed Order (PDF Only))(Norton, Michael) (Entered: 07/01/2013)
49 BRIEF in Opposition to 48 MOTION for Order to F.R. Civ P. 62(c) and Request for Forthwith Determination filed by Defendants 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 Excerpts from Transcript of PI Hearing)(Bennett, Michelle) (Entered: 07/18/2013)
50 ORDER Plaintiffs have moved for an order reversing this Courts order of May 10, 2013, and therefore granting a preliminary injunction as requested, in light of the en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013). See Order for Details, by Judge R. Brooke Jackson on 8/1/2013. (ervsl, ) (Entered: 08/01/2013)
51 RESPONSE to 50 Order, by Defendants 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

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 7 of 9

08/13/2013 08/14/2013 08/19/2013
09/05/2013
09/17/2013
09/17/2013 09/27/2013 10/01/2013 10/02/2013 10/17/2013 10/18/2013 10/28/2013 11/15/2013

Exhibit Transcript of Hobby Lobby remand hearing)(Bennett, Michelle) (Entered: 08/09/2013)
52 RESPONSE to 50 Order, by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 08/13/2013)
53 SUPPLEMENT/AMENDMENT to 52 Response to Order by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 08/14/2013)
54 ORDER: If (1) plaintiffs file a motion to suspend their appeal pending reconsideration of the injunction issue by this Court, which the government has indicated it will not oppose, or (2) the defendant files a similar motion in the Circuit, and (3) either as a result of such a motion by either party or sua sponte the Tenth Circuit remands the case to this Court to reconsider its decision in light of Hobby Lobby, the Court will then do so. By Judge R. Brooke Jackson on 08/19/13. (alvsl) (Entered: 08/19/2013)
55 USCA ORDER AND JUDGMENT as to 39 Notice of Appeal, filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May : We grant the motion for remand,vacate the district courts order, and remand for further proceedings consistentwith the Hobby Lobby decision. We deny as moot plaintiffs request for a motion for injunction pending appeal. (USCA Case No. 13−1218) (This document is not the Mandate) (dbrow, ) (Entered: 09/05/2013)
56 ORDER : The defendants, their officers and employees are preliminarily enjoined from any further effort to apply or enforce against Cherry Creek Mortgage Co., Inc. or the individual plaintiffs the preventive services requirements found at 42 U.S.C. § 300gg−13(a)(4) or the application of penalties found in 26 U.S.C. § 4980D, 26 U.S.C. § 4980H, and 29 U.S.C. § 1132, pending further order of this Court. by Judge R. Brooke Jackson on 9/17/2013. (trlee, ) (Entered: 09/17/2013)
57 ORDER finding as moot 48 MOTION for Order to F.R. Civ P. 62(c) and Request for Forthwith Determination. By Judge R. Brooke Jackson on 09/17/2013. Text Only Entry(rbjsec. ) (Entered: 09/17/2013)
58 MOTION for Summary Judgment by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Norton, Michael) (Entered: 09/27/2013)
59 MOTION to Stay Case in Light of Lapse of Appropriations by Defendants 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. (Bennett, Michelle) (Entered: 10/01/2013)
60 ORDER granting 59 MOTION to Stay Case in Light of Lapse of Appropriations. By Judge R. Brooke Jackson on 10/02/2013. Text Only Entry(rbjsec. ) (Entered: 10/02/2013)
61 Unopposed MOTION to Stay Case by Defendants 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. (Bennett, Michelle) (Entered: 10/17/2013)
62 ORDER granting 61 Unopposed MOTION to Stay Case. By Judge R. Brooke Jackson on 10/18/2013. Text Only Entry(rbjsec. ) (Entered: 10/18/2013)
63 MANDATE of USCA as to 39 Notice of Appeal, filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May : (USCA Case No. 13−1218) (dbrow, ) (Entered: 10/28/2013)
64 NOTICE OF APPEAL as to 56 Order, by Defendants 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

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 8 of 9

11/18/2013 11/18/2013 11/26/2013 05/12/2014 07/02/2014 07/14/2014 08/12/2014 09/04/2014 09/08/2014
09/22/2014 09/23/2014

(Bennett, Michelle) (Entered: 11/15/2013)
65 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor to the U.S. Court of Appeals. ( Retained Counsel, Fee not paid,) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record)(dbrow, ) (Entered: 11/18/2013)
66 USCA Case Number 13−1480 for 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. (dbrow, ) (Entered: 11/18/2013)
67 ORDER of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. The previously ordered abatement in this appeal remains in place. (USCA Case No. 13−1480) (dbrow, ) (Entered: 11/27/2013)
68 ORDER of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. Abatement of this appeal will remain in place. (USCA Case No. 13−1480) (dbrow, ) (Entered: 05/12/2014)
69 ORDER of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. Accordingly, the abatement of this appeal is lifted and proceedings will resume. (USCA Case No. 13−1480) (dbrow, ) (Entered: 07/02/2014)
70 ORDER of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. Proceedings in this appeal are ABATED until August 13, 2014. (USCA Case No. 13−1480) (dbrow, ) (Entered: 07/14/2014)
71 ORDER of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. Appeal will remain abated until September 5, 2014. (USCA Case No. 13−1480) (dbrow, ) (Entered: 08/13/2014)
72 ORDER and MANDATE of USCA as to 64 Notice of Appeal, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor : (USCA Case No. 13−1480) (Attachments: # 1 mandate)(trlee, ) (Entered: 09/04/2014)
73 MINUTE ORDER re: 58 MOTION for Summary Judgment filed by Cherry Creek Mortgage Co., Inc., W. L. Armstrong, William L. Armstrong, III, Dorothy A. Shanahan, Jeffrey S. May, John A. May. The Court requests a response to the pending motion for summary judgment on or before September 22, 2014 if the government opposes the motion. Or, an indication that the government does not oppose the motion. One way or the other the Court will rule on the motion shortly thereafter. By Judge R. Brooke Jackson on 09/08/2014. Text Only Entry (rbjsec.) (Entered: 09/08/2014)
74 NOTICE of Consent to Injunction and Judgment by Defendants 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 Proposed Order (PDF Only))(Bennett, Michelle) (Entered: 09/22/2014)
75 ORDER finding as moot 58 Motion for Summary Judgment. By Judge R. Brooke Jackson on 09/23/2014. Text Only Entry(rbjsec.) (Entered: 09/23/2014)

Case: 1:13-cv-563 As of: 06/14/2016 04:53 PM MDT 9 of 9

09/23/2014 09/24/2014 09/29/2014 09/29/2014 10/03/2014 10/07/2014
10/07/2014 11/20/2014 11/21/2014 12/18/2014 12/19/2014

76 MINUTE ORDER re: 74 NOTICE of Consent to Injunction and Judgment, filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of the Treasury, United States Department of Labor. The Court grants the plaintiffs 10 days to file a response to the defendants' notice. No more than five pages. No reply. By Judge R. Brooke Jackson on 09/23/2014. Text Only Entry (rbjsec. ) (Entered: 09/23/2014)
77 RESPONSE to 74 Notice (Other), of Consent to Injunction and Judgment by Plaintiffs W. L. Armstrong, William L. Armstrong, III, Cherry Creek Mortgage Co., Inc., Jeffrey S. May, John A. May, Dorothy A. Shanahan. (Attachments: # 1 Proposed Order (PDF Only) Injunction and Judgment)(Norton, Michael) (Entered: 09/24/2014)
78 ORDER : The regulations promulgated by the Department of Health and Human Services under the Patient Protection and Affordable Care Act of 2010 described in Hobby Lobby as "the contraceptive mandate" cannot lawfully be applied to Cherry Creek Mortgage Co., Inc. or to the individual plaintiffs in this case. Judgment shall enter. by Judge R. Brooke Jackson on 9/29/14. (jdyne, ) (Entered: 09/29/2014)
79 JUDGMENT in favor of the plaintiffs − Cherry Creek Mortgage Co. Inc., Dorothy A. Shanahan, Jeffrey S. May, John A. May, W. L. Armstrong, William L. Armstrong, III and against the defendants − United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Jacob J. Lew, Kathleen Sebelius and Seth D. Harris. by Judge R. Brooke Jackson on 9/29/14. (jdyne, ) (Entered: 09/29/2014)
80 Joint MOTION to Alter Judgment re 79 Judgment, , MOTION for Extension of Time to Submit Plaintiffs' Bill of Costs and Motion for Attorneys' Fees by Defendants 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. (Bennett, Michelle) (Entered: 10/03/2014)
81 ORDER granting 80 Joint MOTION to Alter Judgment re 79 Judgment,, MOTION for Extension of Time to Submit Plaintiffs' Bill of Costs and Motion for Attorneys' Fees. An Amended Final Judgment will enter with the substituted paragraph. In addition, the parties request for a period of 45 days after the entry of the Amended Final Judgment to submit a bill of costs and/or a motion for attorney's fees is granted. By Judge R. Brooke Jackson on 10/7/2014. Text Only Entry(rbjsec. ) (Entered: 10/07/2014)
82 AMENDED FINAL JUDGMENT in favor of the plaintiffs, W.L. (Bill) Armstrong, Jeffrey S. May, William L. (Wil) Armstrong III, John A. May, Dorothy A. Shanahan and Cherry Creek Mortgage Co., Inc. and against the defendants, Sylvia M. Burwell, Thomas E. Perez, Jacob J. Lew, United States Department of Health and Human Services, United States Department of Labor and United States Department of the Treasury. by Clerk on 10/7/14. (jdyne, ) (Entered: 10/07/2014)
83 Unopposed MOTION for Extension of Time to File Any Bill of Costs and/or Motion for Attorney's Fees by Defendants 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. (Bennett, Michelle) (Entered: 11/20/2014)
84 ORDER granting 83 Unopposed MOTION for Extension of Time to File Any Bill of Costs and/or Motion for Attorney's Fees. By Judge R. Brooke Jackson on 11/21/2014. Text Only Entry(rbjsec. ) (Entered: 11/21/2014)
85 Unopposed MOTION for Extension of Time to File Any Bill of Costs and/or Motion for Attorney's Fees by Defendants 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. (Bennett, Michelle) (Entered: 12/18/2014)
86 ORDER granting 85 Unopposed MOTION for Extension of Time to File Any Bill of Costs and/or Motion for Attorney's Fees. Bill of costs and motions related to attorneys' fees are now due by January 19, 2015. By Judge R. Brooke Jackson on 12/19/2014. Text Only Entry(rbjsec. ) (Entered: 12/19/2014)