Case: 4:13-cv-00462-AGF Doc. #: 1 Filed: 03/13/13 Page: 1 of 15 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BICK HOLDINGS, INC., and BICK

)

GROUP INC., MARY FRANCES

)

CALLAHAN, MARY CLARE BICK, )

JAMES PATRICK BICK, JR.,

)

WILLIAM JOSEPH BICK,

)

MARY PATRICIA DAVIES,

)

Case No. 4:13-cv-462

JOSEPH JOHN BICK, FRANCIS

)

XAVIER BICK, MARY MARGARET )

JONZ, MARY SARAH ALEXANDER, )

)

)

Plaintiffs,

)

)

v.

)

COMPLAINT

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES; )

KATHLEEN SEBELIUS, in her official )

Capacity as the Secretary of the United )

States Department of Health and Human )

Services; UNITED STATES

)

DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official

)

capacity as the Secretary of the

)

United States Department of the Treasury; )

UNITED STATES DEPARTMENT OF )

LABOR; and SETH D. HARRIS, in his )

official capacity as Acting Secretary of the )

United States Department of Labor,

)

)

)

Defendants.

)

______________________________________________________________________________

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COME NOW Plaintiffs, Mary Frances Callahan, Mary Clare Bick, James Patrick Bick, Jr., William Joseph Bick, Mary Patricia Davies, Joseph John Bick, Francis Xavier Bick, Mary Margaret Jonz, Mary Sarah Alexander, Bick Holdings, Inc., and Bick Group Inc., by and through their attorneys, and state to this Court as follows:
INTRODUCTION 1. Plaintiffs seek judicial review of Defendants’ violations of constitutional and statutory provisions in connection with the Defendants’ promulgation and implementation of certain regulations adopted under the 2010 Patient Protection and Affordable Care Act (hereafter, “PPACA”), specifically those regulations mandating that non-exempt employers pay for, as part of employee health benefit plans, certain goods and services, regardless of whether paying for such goods and services violates the employer’s religious and moral values. 2. Specifically, Plaintiffs ask the court for declaratory and injunctive relief from the operation of regulations confirmed and promulgated by the Defendants on February 15, 2012, mandating that group health plans include coverage, without cost-sharing, for “all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity” in plan years beginning on or after August 1, 2012 (hereafter, “the Mandate”), see 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/womensguidelines. 3. Plaintiffs, Mary Frances Callahan, Mary Clare Bick, James Patrick Bick, Jr., William Joseph Bick, Mary Patricia Davies, Joseph John Bick, Francis Xavier Bick, Mary Margaret Jonz, Mary Sarah Alexander (the “Bicks”) are adherents of the Catholic religion. The Bicks own the controlling interest in Plaintiff, Bick Holdings, Inc. (“BHI”) and its subsidiaries,

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including Bick Group Inc., and wish to conduct their business in a manner that does not violate the principles of their religious faith.
4. Plaintiffs’ Catholic beliefs include the belief that human life is a sacred gift from God and that individuals are not permitted to cause, or pay for, directly or indirectly, the intentional, unjustified termination of such life.
5. The Bicks have concluded that complying with the Mandate would require them to violate their religious beliefs because it would require them and/or the corporations they control to pay for and provide not only contraception and sterilization, but also abortion, because certain drugs and devices that the Bicks have concluded have abortion-causing mechanisms of action, such as the “morning-after pill,” “Plan B,” and “Ella,” come within the Mandate’s and HRSA’s definition of “Food and Drug Administration-approved contraceptive methods.”
6. Plaintiffs contend that by requiring them to choose between conducting their business in a manner consistent with their religious beliefs, or paying ruinous fines and penalties, the Mandate violates their rights under the First Amendment and the Religious Freedom Restoration Act, and also violates the Administrative Procedure Act.
JURISDICTION AND VENUE 7. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2) because it is a civil action against agencies and officials of the United States based on claims arising under the Constitution, laws of the United States, and regulations of executive departments and it seeks equitable or other relief under an Act of Congress, and also pursuant to 28 U.S.C. § 1361 as this court may compel officers and agencies of the United States to perform a duty owed Plaintiffs. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. § 2000bb-1.
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This court has the authority to award Plaintiffs their costs and attorneys’ fees pursuant to 28 U.S.C. § 2412 and 42 U.S.C. § 1988.
8. Venue is appropriate in this district pursuant to 28 U.S.C. §1391(e)(B)-(C) because the Plaintiffs reside within this district, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
IDENTIFICATION OF PARTIES 9. Plaintiffs, the Bicks, are individuals and citizens of the State of Missouri and the United States. The Bicks hold 91% of the voting interest in Plaintiff, BHI. 10. Plaintiff, BHI, a Missouri corporation, is the holding company for and 100% owner of the BHI operating companies, Bick Group Inc., Bick Properties, Inc., and SEALCO, LLC. 11. Plaintiff, Bick Group Inc. (“Bick Group”), a Missouri corporation, is a whollyowned subsidiary of BHI and maintains the group health plan for the employees of BHI’s operating companies. 12. The Bicks operate BHI through a Board of Directors, consisting of 7 individuals, all of whom are elected by the Bicks, and one additional shareholder who is the CEO of the company. At all times, at least one of said directors is one of the Bicks. The Bicks have the ultimate responsibility and authority for setting and approving all phases and policies of the business of BHI and its operating companies. 13. Defendant United States Department of Health and Human Services (“HHS”), is an agency of the United States, and is responsible for administration and enforcement of the Mandate.
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14. Defendant Kathleen Sebelius is Secretary of HHS, and is named as a party in her official capacity.
15. Defendant United States Department of the Treasury is an agency of the United States, and is responsible for administration and enforcement of the Mandate.
16. Defendant Jacob J. Lew is Secretary of the Treasury, and is named as a party in his official capacity.
17. Defendant United States Department of Labor (“DOL”) is an agency of the United States, and is responsible for administration and enforcement of the Mandate.
18. Defendant Seth D. Harris is Acting Secretary of DOL, and is named as a party in his official capacity.
FACTUAL ALLEGATIONS 19. Plaintiff BHI, through its operating subsidiaries, including Bick Group, is engaged in the data center consulting, design, maintenance, service and cleaning business, as well as the business of information technology consulting for healthcare providers. 20. BHI has its main offices at 12969 Manchester Road, St. Louis, St. Louis County, Missouri. 21. Plaintiff Bick Group has its main offices at 12969 Manchester Road, St. Louis, Missouri. 22. BHI and its subsidiaries, including Bick Group, share a common mission and values, which is published on BHI’s website. 23. The Bick Group website sets forth that the first “Core Value” of BHI and its subsidiaries is:
“To Honor God.
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We believe in the Christian principles that form the societal mores the founders of our country believed necessary for our Democracy to work. In our dealings with customers, employees, owners, and all members of the community, we must above all strive to act in a manner which adheres to the Judeo-Christian principles of ethical behavior.” 24. BHI and its subsidiaries currently have approximately 196 full-time employees. 143 employees are covered by a group policy of health insurance offered through Bick Group and underwritten by United Healthcare Insurance Company. Like BHI’s profit sharing and retirement plan, Plaintiffs consider BHI’s provision of employee health insurance an integral component of furthering the company’s mission and values. 25. The Bicks hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. They believe that actions intended to terminate an innocent human life by abortion are gravely sinful. Further, the Bicks adhere to Catholic Church teaching regarding the immorality of contraception and sterilization. 26. The Bicks believe that they cannot arrange for, pay for, facilitate, or provide coverage for contraceptives, sterilization, abortion or related education and counseling without violating their religious beliefs. In other words, direct subsidization of immoral goods or services is itself an immoral act that the Bicks’ faith forbids, regardless of whether those goods or services are ever used by others. 27. BHI’s group health plan was renewed on January 1, 2013 and currently contains the mandated contraceptive and abortifacient coverage objected to by the Bicks and their companies. Until January 2013, the Bicks were unaware that this plan provided coverage for contraception and abortifacients, as the Bicks believed that such drugs constituted voluntary, elective “treatment” akin to cosmetic plastic surgery and thus were not covered by BHI’s group health plan.
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APPLICABLE PROVISIONS OF THE MANDATE 28. Under the Mandate challenged herein, all employers that offer non-grandfathered group health plans must provide coverage for all FDA-approved contraceptive methods, sterilization, and education and counseling for same. 29. Plaintiff BHI and its subsidiaries, including Bick Group, constitute a “single employer” for purposes of PPACA as defined at 42 U.S.C. § 18024(b)(4)(A), and are, thus, subject to the Mandate. 30. BHI’s group health plan contains the objectionable coverage. Plaintiffs wish to maintain insurance coverage for BHI’s employees while, at the same time, excluding coverage for all FDA-approved contraceptive methods, sterilization procedures and patient education and counseling regarding such procedures, consistent with the religious beliefs of the Bicks and their previous belief that such drugs and services were not covered by BHI’s group health plan. 31. Under the terms of the Mandate, Plaintiffs will not be permitted to obtain coverage that excludes the aforementioned drugs and services. On the contrary, the Mandate will require that Plaintiffs continue to pay for and provide coverage of those services that Plaintiffs consider sinful and immoral, something Plaintiffs would not be required to do under Missouri state law.1 32. Plaintiffs, as for-profit employers, do not qualify for the “religious employer” exemption afforded by Defendants. See 45 CFR § 147.130 (a)(1)(iv)(A) and (B).
1 The State of Missouri has its own version of a contraceptives mandate. Mo. Rev. Stat. § 376.1199. Unlike the federal Mandate being challenged here, however, the Missouri statute contains a complete exemption — not limited to “religious” employers — for any employer for whom “the use of such contraceptives is contrary to the moral, ethical or religious beliefs or tenets of such person or entity.” Mo. Rev. Stat. § 376.1199(4)(1).
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33. Because Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
34. Failure to comply with the Mandate would likely require BHI to pay ruinous annual fines and penalties to the federal government. Under 26 U.S.C. § 4980D, Plaintiffs would likely face over $5 million in penalties for each year that they provide an insurance plan for their full-time employees that does not cover the goods and services that Plaintiffs’ faith forbids them from directly subsidizing.
35. Plaintiffs are thus now subject to the Mandate and are confronted with choosing between complying with its requirements in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically. Because the Mandate coerces Plaintiffs into complying with its requirements or abandoning integral components of the Plaintiffs’ religiously inspired mission and values, it imposes a substantial burden on Plaintiffs’ religious exercise.
36. Any alleged interest Defendants have in providing free FDA-approved contraceptives, abortifacients, and sterilization and related education and counseling services, without cost-sharing, is not compelling as applied to Plaintiffs. In addition, any such interest could be advanced by Defendants through other more narrowly tailored means that do not require Plaintiffs to pay for and otherwise support coverage of such items through their employee health plan in violation of their religious beliefs and moral values.
37. Plaintiffs lack an adequate or available administrative remedy or, in the alternative, any effort to obtain an administrative remedy would be futile.
38. Plaintiffs lack an adequate remedy at law.
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CAUSES OF ACTION Count I
Violation of the Religious Freedom Restoration Act 39. Plaintiffs incorporate by reference all of the preceding paragraphs. 40. Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.” 41. The Mandate, by requiring Plaintiffs to provide said coverage, imposes a substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between conducting their business in violation of their religious beliefs or paying substantial penalties to the government for choosing to conduct their business in accordance with those beliefs. 42. The Mandate furthers no compelling governmental interest. 43. The Mandate is not narrowly tailored to furthering any compelling interest. 44. The Mandate is not the least restrictive means of furthering the Defendants’ stated interests. 45. The Mandate and the Defendants’ threatened enforcement of same violate rights secured to the Plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq. 46. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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Count II Violation of the First Amendment to the United States Constitution Free Exercise Clause
47. Plaintiffs repeat and re-allege the allegations in paragraph 1 – 46 above and incorporate those allegations herein by reference.
48. Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.”
49. The Mandate, by requiring Plaintiffs to provide coverage imposes a substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between conducting their business in violation of their religious beliefs or paying substantial penalties to the government for choosing to conduct their business in accordance with those beliefs.
50. The Mandate furthers no compelling governmental interest. 51. The Mandate is not narrowly tailored to furthering any compelling interest. 52. The Mandate is not the least restrictive means of furthering the Defendants’ stated interests. 53. The Mandate is neither neutral nor generally applicable. 54. The Mandate and the Defendants’ threatened enforcement of same violate Plaintiffs’ rights to free exercise of religion as guaranteed by the First Amendment to the United States Constitution. 55. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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Count III Violation of the First Amendment to the United States Constitution Free Speech Clause
56. Plaintiffs repeat and re-allege the allegations in paragraphs 1 – 55 above and incorporate those allegations herein by reference.
57. The First Amendment protects organizations as well as individuals against compelled speech.
58. Expenditures of money are a form of protected speech. 59. Plaintiffs believe that the aforementioned services covered by the Mandate are contrary to their religious beliefs. 60. The Mandate would compel the Plaintiffs to subsidize services, activities, and practices Plaintiffs believe to be immoral. 61. The Mandate compels the Plaintiffs to arrange for, pay for, provide, facilitate, or otherwise support coverage for education and counseling related to contraception, sterilization, and abortion. 62. Defendants’ actions thus violate the Plaintiffs’ free speech rights as guaranteed by the First Amendment to the United States Constitution. 63. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
Count IV Violation of the Administrative Procedure Act 64. Plaintiffs repeat and re-allege the allegations in paragraphs 1 – 63 above and incorporate those allegations herein by reference.
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65. PPACA expressly delegates to an agency within Defendant United States Department of Health and Human Services, the Health Resources and Services Administration, the authority to establish “preventive care” guidelines that a group health plan and health insurance issuer must provide.
66. Given this express delegation, Defendants were obliged to engage in formal notice and comment rulemaking as prescribed by law before Defendants issued the guidelines that group health plans and insurers must provide.
67. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given a chance to take part in the rulemaking through the submission of written data, views, or arguments.
68. Defendants promulgated the “preventive care” guidelines without engaging in the formal notice and comment rulemaking as prescribed by law. Defendants delegated the responsibilities for issuing “preventive care” guidelines to a non-governmental entity, the Institute of Medicine, which did not permit or provide for broad public comment otherwise required by the Administrative Procedure Act.
69. Defendants also failed to engage in the required notice and comment rulemaking when Defendants issued interim final rules and the Mandate that incorporates the “preventive care” guidelines.
70. In addition, in its creation of the Mandate, the Government disregarded the large body of medical evidence indicating that hormonal contraceptives can significantly increase women’s risks of cancer, stroke, and other diseases.
71. Moreover, the Mandate is contrary to Section 1303(b)(1)(A) of PPACA which provides that “nothing in this title” . . . “shall be construed to require a qualified health plan to
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provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
72. The Mandate violates the Religious Freedom Restoration Act. 73. The Mandate violates the First Amendment to the United States Constitution. 74. Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on for-profit employers such as Plaintiffs. 75. Accordingly, the Mandate is arbitrary and capricious, not in accordance with law or required procedure, and is contrary to constitutional right, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2). 76. Absent injunctive and declaratory relief against the Mandate, Plaintiffs’ have been and will continue to be harmed.
REQUEST FOR RELIEF Plaintiffs repeat and re-allege all allegations made above and incorporate those allegations herein by reference, and Plaintiffs request that this Court grant them the following relief and enter final judgment against Defendants and in favor of Plaintiffs:
A. Declare that the Mandate and Defendants’ enforcement of same against Plaintiffs violates the Religious Freedom Restoration Act;
B. Declare that the Mandate and Defendants’ enforcement of same against Plaintiffs violates the Free Exercise Clause of the First Amendment to the United States Constitution;
C. Declare that the Mandate and Defendants’ enforcement of same against Plaintiffs violates the Establishment Clause of the First Amendment to the United States Constitution;
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D. Declare that the Mandate and Defendants’ enforcement of same against Plaintiffs violates the Free Speech Clause of the First Amendment to the United States Constitution;
E. Declare that the Mandate and Defendants’ enforcement of same against Plaintiffs violates the Administrative Procedure Act;
F. Issue preliminary and permanent injunctions prohibiting Defendants, their officers, agents, servants, employees, successors in office, attorneys, and those acting in active concert or participation with them, including any insurance carriers or third party plan administrators, from applying and enforcing the Mandate and any related regulations, rules, statutes, laws, penalties, fines or assessments against Plaintiffs; and prohibiting Defendants, their officers, agents, servants, employees, successors in office, attorneys, and those acting in active concert or participation with them from applying and enforcing the Mandate against any insurance carriers or third party plan administrators with whom Plaintiffs may seek to contract with respect to the provision or administration of an employee health plan for Plaintiffs’ employees;
G. Award Plaintiffs their costs and attorney’s fees associated with this action; and H. Award Plaintiffs any further relief this court deems equitable and just. Respectfully submitted this 13th day of March, 2013,
/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 fmanion@aclj.org gsurtees@aclj.org
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Edward L. White III (MI Bar No. P62485)* AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984 Fax: (734) 302-1758 ewhite@aclj.org Erik M. Zimmerman* AMERICAN CENTER FOR LAW & JUSTICE 1000 Regent University Dr. Virginia Beach, VA 23464 Tel: (757) 226-2489 Fax: (757) 226-2836 ezimmerman@aclj.org Carly F. Gammill* AMERICAN CENTER FOR LAW & JUSTICE 188 Front St., Suite 116-19 Franklin, TN 37064 Tel: (615) 415-4822 Fax: (615) 599-5189 cgammill@aclj-dc.org Attorneys for Plaintiffs *Pro hac vice pending
15

 
 Case: 4:13-cv-00462-AGF Doc. #: 19 Filed: 04/01/13 Page: 1 of 1 PageID #: 121

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BICK HOLDING, INC., et al., Plaintiffs,
vs.
KATHLEEN SEBELIUS, et al., Defendants,

) ) ) ) ) Case No. ) ) ) ) )

4:13-cv-00462-AGF

ORDER

The Court, having reviewed Defendant’s Unopposed Motion to Stay Proceedings and Notice of Non-Opposition to Plaintiffs’ Motion for Preliminary Injunction, hereby grants the motion and orders as follows:
Defendants are hereby ENJOINED, until 30 days after the mandate issues from the Eighth Circuit in O’Brien v. HHS, No. 12-3357, or Annex Medical, Inc. v. Sebelius, No. 131118, whichever occurs first, from applying or enforcing the contraceptive coverage regulations against Bick Holdings, Inc.; Bick Group, Inc.; or their employee health plan(s) or insurer(s).
All proceedings in this case are stayed pending resolution of the appeal in O’Brien or Annex Medical, whichever occurs first, and the case shall be closed for administrative purposes only. The Parties shall advise the Court within ten days of the issuance of the mandate in either case.
IT IS SO ORDERED

Dated this 1st day of April, 2013

___________________________________ AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

 
 Case: 4:13-cv-00462-AGF Doc. #: 8 Filed: 03/25/13 Page: 1 of 4 PageID #: 39

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BICK HOLDINGS, INC., and BICK

)

GROUP INC., MARY FRANCES

)

CALLAHAN, MARY CLARE BICK, )

JAMES PATRICK BICK, JR.,

)

WILLIAM JOSEPH BICK,

)

MARY PATRICIA DAVIES,

)

Case No. 4:13-cv-462

JOSEPH JOHN BICK, FRANCIS

)

XAVIER BICK, MARY MARGARET )

JONZ, MARY SARAH ALEXANDER, )

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES; )

KATHLEEN SEBELIUS, in her official )

Capacity as the Secretary of the United )

States Department of Health and Human )

Services; UNITED STATES

)

DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official

)

capacity as the Secretary of the

)

United States Department of the Treasury; )

UNITED STATES DEPARTMENT OF )

LABOR; and SETH D. HARRIS, in his )

official capacity as Acting Secretary of the )

United States Department of Labor,

)

)

)

Defendants.

)

______________________________________________________________________________

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, by and through their undersigned counsel, pursuant to Rule 65 of the Federal

Rules of Civil Procedure, and for the reasons set forth in the accompanying Memorandum of

Law, hereby move this Court for a preliminary injunction prohibiting Defendants, their agents,

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officers and employees from applying and enforcing against the plaintiffs regulations purporting

to require Plaintiffs to include in their employee health benefit plan coverage for FDA-approved

contraceptives, sterilization procedures and patient education and counseling for such services,

including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4), the application of

the penalties found in 26 U.S.C. §§ 4980D and 4980H and 29 U.S.C. § 1132, and any

determination that the requirements are applicable to Plaintiffs.

Entry of a preliminary injunction is appropriate in this case because there is a threat of

irreparable harm to the movants, they are likely to succeed on the merits, the balance of harms

favors the Plaintiffs, and granting the injunction is in the public interest.

In addition, Plaintiffs are in need of immediate relief from the Mandate to allow time to

obtain insurance coverage that complies with the Plaintiffs’ religious beliefs by not causing them

to arrange for, pay for, or otherwise support employee health plan coverage for contraceptives,

abortifacients, or related education and counseling.

Bond should be waived since there will be no demonstrable harm to the Defendants if the

unconstitutional acts complained of herein are enjoined. Respectfully submitted this 25th day of March, 2013.

Carly F. Gammill* American Center for Law & Justice 188 Front St., Suite 116-19 Franklin, TN 37064 Tel: (615) 415-4822 Fax: (615) 599-5189 cgammill@aclj-dc.org

/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* American Center for Law & Justice PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 fmanion@aclj.org gsurtees@aclj.org

2

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Edward L. White III P62485 American Center for Law & Justice 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984; Fax: (734) 302-1758 ewhite@aclj.org

Erik M. Zimmerman* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 Tel. (757) 226-2489; Fax. (757) 226-2836 ezimmerman@aclj.org
Counsel for Plaintiffs
*admitted pro hac vice

3

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is an attorney at law and is a person of such age

and discretion as to be competent to serve process. On March 25th, 2013 he caused to be served a

copy of the foregoing by placing said copy in an overnight envelope and addressed to the persons

hereinafter named at the addresses stated below and by depositing said envelope and its contents

with the United States Mail:

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

Jacob J. Lew U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

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

Richard Callahan
U.S. Attorney Thomas Eagleton U.S. Courthouse 111 South 10th St., 20th Floor St. Louis, MO 63102

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

 
 Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 1 of 21 PageID #: 43

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MARY FRANCES CALLAHAN,

)

MARY CLARE BICK, JAMES PATRICK )

BICK, JR., WILLIAM JOSEPH BICK, )

MARY PATRICIA DAVIES,

)

JOSEPH JOHN BICK, FRANCIS

)

XAVIER BICK, MARY MARGARET )

JONZ, MARY SARAH ALEXANDER, )

BICK HOLDINGS, INC., and BICK

)

GROUP INC.,

)

)

)

Plaintiffs,

)

)

v.

)

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES; )

KATHLEEN SEBELIUS, in her official )

Capacity as the Secretary of the United )

States Department of Health and Human )

Services; UNITED STATES

)

DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official

)

capacity as the Secretary of the

)

United States Department of the Treasury; )

UNITED STATES DEPARTMENT OF )

LABOR; and SETH D. HARRIS, in his )

official capacity as Acting Secretary of the )

United States Department of Labor,

)

)

)

Defendants.

)

____________________________________

Case No. 4:13-cv-00462

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................... 2 THE REGULATIONS BEING CHALLENGED ............................................................ 4 ARGUMENT.................................................................................................................. 5 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
RFRA CLAIM. ......................................................................................................... 6 A. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion.................... 7 B. The Defendants Cannot Demonstrate a Compelling Governmental
Interest ................................................................................................................ 9 C. The Mandate is not the Least Restrictive Means of Achieving a Compelling
Governmental Interest ....................................................................................... 12 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT
AN INJUNCTION, WHILE DEFENDANTS WILL SUFFER NO HARM ............. 13 III. THE PUBLIC INTEREST FAVORS A PRELIMINARY
INJUNCTION......................................................................................................... 14 CONCLUSION............................................................................................................. 14
i

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TABLE OF AUTHORITIES CASES Page
Am. Pulverizer Co. v. U.S. Dep’t of Health & Hum. Servs, 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012)..............................2, 6, 7, 10
Anderson v. Celebrezze, 460 U.S. 780 (1983)................................................................ 12 Annex Med. v. Sebelius, 2013 U.S. App. LEXIS 2497
(8th Cir. Feb. 1, 2013).......................................................................................1, 6, 7, 8 Autocam Corp. v. Sebelius, 2012 U.S. Dist. LEXIS 184093
(W.D. Mich. Dec. 24, 2012), appeal docketed, 2012 U.S. App. LEXIS 26736 (6th Cir. Dec. 28, 2012)................................................................................................ 7 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)................................................ 11 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)..................................................................................................... 9 Conestoga Wood Specialties Corp. v. Sebelius, 2013 U.S. Dist. LEXIS 4449 (E.D. Pa. Jan. 11, 2013)................................................................................................. 7 Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981) ............................... 6 Geneva Coll. v. Sebelius, 2013 U.S. Dist. LEXIS 30265 (W.D. Pa. Mar. 6, 2013)............................................................................................... 7 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)..................................................................................................... 9 Grote v. Sebelius, 2013 U.S. App. LEXIS 2112 (7th Cir. Jan. 30, 2013).......................... 7 Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), appeal docketed, 2012 U.S. App. LEXIS 26741 (10th Cir. Dec 20, 2012), and 133 S. Ct. 641 (2012) (Sotomayor, J., in chambers) ................................................ 7 In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007) ....................................................................................... 11 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ...................................................... 13
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Korte v. Sebelius, 2012 U.S. App. LEXIS 23764 (7th Cir. Dec. 28, 2012) ....................... 7 Legatus v. Sebelius, 2012 U.S. Dist. LEXIS 156144
(E.D. Mich. Oct. 31, 2012)...................................................................................... 7, 14 Monaghan v. Sebelius, 2012 U.S. Dist. LEXIS 182857 (E.D. Mich. Mar. 14, 2013)........ 7 Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).................................7, 10, 12 O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 U.S. Dist.
LEXIS 140097 (E.D. Mo. Sept. 28, 2012) ..........................................................1, 6, 7, 8 Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789
(E.D. Mo. 2011)............................................................................................................ 6 Planned Parenthood of MN v. Rounds, 530 F.3d 724 (8th Cir. 2008) .............................. 6 Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Hum. Servs.,
2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012).....................................2, 6, 7 Sioux Chief Mfg. Co., Inc. v. Sebelius, No. 4:13-cv-00036
(W.D. Mo. Feb. 28, 2013) ............................................................................................ 7 Triune Health Grp., Inc. v. U.S. Dep’t of Health & Hum. Servs.,
No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013) ................................................................... 7 Tyndale House Publ’rs v. Sebelius, 2012 U.S. Dist. LEXIS 163965
(D.D.C. Nov. 16, 2012)........................................................................................... 7, 10 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803
(2000) ........................................................................................................................ 13 United States v. Robel, 389 U.S. 258 (1967).................................................................. 13 Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................................................................... 11
FEDERAL STATUTES
26 U.S.C. § 4980D(b)(1)................................................................................................. 5 26 U.S.C. § 4980H(c)(2) ............................................................................................... 11 26 U.S.C. § 4980H(c)(2)(A)............................................................................................ 5
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42 U.S.C. § 300gg-13(a)(4)............................................................................................. 4 42 U.S.C. § 2000bb-1(a) ................................................................................................. 7 42 U.S.C. § 2000bb-1(b) ............................................................................................. 7, 9
FEDERAL REGULATIONS 45 C.F.R. § 147.130 (2011)............................................................................................. 4 45 C.F.R. § 147.130(a)(iv)(B) ......................................................................................... 5 75 Fed. Reg. 41726 (July 19, 2010)................................................................................. 5 76 Fed. Reg. 46621 (Aug. 3, 2011) ............................................................................. 4, 5 77 Fed. Reg. 8725 (Feb. 15, 2012) .................................................................................. 5
MISCELLANEOUS Application of the New Health Reform Provisions of Part A of
Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf................................................. 10 G. Bernagiano & H. von Hertzen, Towards more effective emergency contraception? 375 The Lancet 527-28 (Feb. 13, 2010)........................................................................ 3 FDA, Birth Control Guide (Oct. 19, 2011), http://www.fda.gov/downloads/forconsumers/byaudience/ forwomen/freepublications/ucm282014.pdf ................................................................. 4 Statistics about Business Size (including Small Business) from the U.S. Census Bureau, U.S. Census Bureau, http://www.census.gov/econ/smallbus.html................................................................ 10 A. Tarantal et al., Effects of Two Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca fascicularis), 54 Contraception 107-115 (1996).............................. 3 Women’s Preventive Services: Required Health Plan Coverage Guidelines, Health Res. & Servs. Admin., http://www.hrsa.gov/womensguidelines/ ....................... 4
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INTRODUCTION Plaintiffs, Mary Frances Callahan, Mary Clare Bick, James Patrick Bick, Jr., William Joseph Bick, Mary Patricia Davies, Joseph John Bick, Francis Xavier Bick, Mary Margaret Jonz, and Mary Sarah Alexander (hereinafter “the Bicks”), seek preliminary injunctive relief so they may run their businesses, Plaintiffs Bick Holdings, Inc., Bick Group Inc., and the subsidiaries thereof (hereinafter “the Bick Companies”), in a manner consistent with their religious values and beliefs. Absent such relief, the Bicks will face a stark and unavoidable choice: abandon their beliefs in order to stay in business, or abandon their businesses in order to stay true to their beliefs. That is a choice that the federal government, bound by the First Amendment and the Religious Freedom Restoration Act (“RFRA”), may not lawfully impose upon them without demonstrating a compelling interest served through the least restrictive means available. The government cannot make that showing here. The choice the government imposes on Plaintiffs, through regulations requiring them to provide employee insurance coverage for contraceptives, abortifacients, and counseling to which they are morally opposed (“the Mandate”), is a choice the government has decided not to impose on thousands of other employers who share the Bicks’ views, and tens of thousands more employers (of well over 100 million employees) who may or may not share their views. This massive under-inclusiveness shows that the government’s purported interests are remarkably non-compelling. Indeed, twice now, on facts virtually identical to those presented here, the Eighth Circuit Court of Appeals has preliminarily enjoined application of the Mandate. See O’Brien v. U.S. Dep’t of HHS, No. 12-3357 (8th Cir. Nov. 28, 2012); Annex Med. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013). Another district court within this district has done
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the same, see Sharpe Holdings, Inc. v. U.S. Dep’t of HHS, No. 2:12-CV-92, 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012), as have the Seventh Circuit and several other district courts, including the U.S. District Court for the Western District of Missouri. See Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-cv-3459, 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012).
For the reasons stated herein, including the fact that the Eighth Circuit has already held that plaintiffs in the same situation as Plaintiffs herein are entitled to preliminary injunctive relief, this Court should grant Plaintiffs a preliminary injunction against the Mandate.
FACTUAL BACKGROUND Plaintiffs, the Bicks, are nine siblings who own and control the Bick Companies, businesses involved in data center consulting, design, maintenance, service and cleaning, as well as information technology consulting for healthcare providers. Ex. A, Decl. of James P. Bick, Jr., ¶¶ 3, 5 . The Bicks are adherents of the Catholic religion. Id. at ¶ 8. Their religious convictions include the beliefs that human life is a sacred gift from God and that individuals are not permitted to cause, or pay for, directly or indirectly, the intentional, unjustified termination of such life. Id. at ¶ 9. The Bicks seek to manage and operate the Bick Companies in a manner that reflects these sincerely held religious beliefs. Id. at ¶ 8. In fact, the Bick Group website sets forth that the first “Core Value” of BHI and its subsidiaries is: “To Honor God. We believe in the Christian principles that form the societal mores the founders of our country believed necessary for our Democracy to work. In our dealings with customers, employees, owners, and all members of the community, we must above all strive to act in a manner which adheres to the Judeo-Christian principles of ethical behavior.” Id. at ¶ 11; Ex. 1. The Bick Companies currently have approximately 196 full-time employees. Id. at ¶ 7.
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Of these employees, 143 are covered by a health insurance plan paid for by Bick Group Inc. Id.
As explained further below, Defendants’ Mandate requires group health plans, such as the plan
the Bick Companies provide for their employees, to include coverage, without cost sharing, for
contraceptives (including abortion-inducing drugs), sterilization, and related patient education
and counseling. The Bicks hold to the teachings of the Catholic Church regarding the sanctity of
human life from conception to natural death. Id. at ¶ 12. They believe that actions intended to
terminate an innocent human life by abortion are gravely sinful. Id. Further, the Bicks adhere to
Catholic Church teaching regarding the immorality of contraception and sterilization. Id. They
believe that they cannot arrange for, pay for, facilitate, or provide coverage for contraceptives,
sterilization, abortion or related education and counseling without violating their religious
beliefs. Id. at ¶ 13. In other words, direct subsidization of immoral goods or services is itself an
immoral act that the Bicks’ faith forbids, regardless of whether those goods or services are ever
used by others. Id. The Bicks wish to manage and operate their businesses in a manner that reflects their religious beliefs. Id. at ¶¶ 8, 11.1/ Despite the religious beliefs of the Bicks,
however, the Bick Companies are not exempt from the dictates of the Mandate. Id. at ¶ 19, 20.
The Bicks discovered earlier this year that the Bick Companies’ current group health plan includes coverage for contraception and abortifacients.2/ Id. at ¶ 14. This is an error that the
1/ Plaintiff Bick Group Inc. is wholly owned by Plaintiff Bick Holdings, Inc. All other Bick Companies are wholly owned subsidiaries of either Bick Group Inc. or Bick Holdings, Inc. While the Bicks operate Bick Holdings, Inc. through a Board of Directors, the Bicks maintain ultimate responsibility and authority for setting and approving all phases and policies of the business of Bick Holdings, Inc., Bick Group Inc., and the subsidiaries thereof. (Ex. A, at ¶ ).
2/ One drug that the FDA classifies as “contraceptive,” and that must be paid for by employers subject to the Mandate, is ulipristal (marketed as the emergency contraceptive “Ella”). Ulipristal (HRP 2000) acts in a similar way to RU-486, a formulation that is used for medically induced abortions. See A. Tarantal et al., Effects of Two Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca fascicularis), 54 Contraception 107-115 (1996), at 114 (“[S]tudies with mifepristone and HRP 2000 have shown both antiprogestins to have roughly comparable activity in terminating pregnancy when administered during the early stages of gestation.”); G. Bernagiano & H. von Hertzen, Towards more effective emergency contraception?, 375 The Lancet 527-28 (Feb. 13, 2010) (“Ulipristal has similar biological effects to mifepristone, the antiprogestin used in medical abortion.”).
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Bicks wish to correct. Id. at ¶¶ 8, 17. Plaintiffs are in need of immediate relief from the Mandate to allow time to obtain insurance coverage that complies with the Bicks’ religious beliefs by not causing them to arrange for, pay for, or otherwise support employee health plan coverage for contraceptives, abortifacients, or related education and counseling. Id. at ¶ 17, 18. If Plaintiffs fail to comply with the Mandate or drop employee group health coverage altogether, the Bick Companies will likely face substantial penalties. Id. at ¶ 21, 22.
THE REGULATIONS BEING CHALLENGED On March 23, 2010, the Affordable Care Act (hereafter “ACA”) became law. The ACA requires group health plans to provide no-cost coverage for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration (hereafter “HRSA”). 42 U.S.C. § 300gg-13(a)(4). The HRSA guidelines include, among other things, “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” WOMEN’S PREVENTIVE SERVICES: REQUIRED HEALTH PLAN COVERAGE GUIDELINES, Health Res. & Servs. Admin., http://www.hrsa.gov/womensguidelines/ (last visited Nov. 15, 2012). FDA-approved contraceptive methods include emergency contraception (such as Plan B and Ella), diaphragms, oral contraceptive pills, and intrauterine devices.3/ On August 3, 2011, Defendants promulgated an interim final rule, requiring all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” to provide coverage for all FDA-approved contraceptive methods and sterilization procedures as well as patient education and counseling about those services. 76 Fed. Reg. 46621, 46622 (Aug. 3, 2011); 45 C.F.R. § 147.130 (2011). This interim rule, which, along with the
3/ FDA, BIRTH CONTROL GUIDE (Oct. 19, 2011), http://www.fda.gov/downloads/forconsumers/byaudience/ forwomen/freepublications/ucm282014.pdf.
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religious employer exemption described below, comprises the Mandate, was adopted as final, “without change,” on or about February 15, 2012. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
Not all employers are required to comply with the Mandate. Grandfathered health plans, that is, plans in existence on March 23, 2010, and that have not undergone any of a defined set of changes,4/ are exempt from compliance with the Mandate. See 75 Fed. Reg. 41726, 41731 (July 19, 2010).5/ Defendant HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41732. Also exempt from the Mandate are nonprofit “religious employers,” as defined at 45 C.F.R. § 147.130(a)(iv)(B).6/ In addition, employers with fewer than fifty full-time employees can avoid providing Mandate-required coverage by not providing an employee health plan because they have no obligation to provide health insurance under the ACA. 26 U.S.C. § 4980H(c)(2)(A). Non-exempt employers that fail to provide an employee health insurance plan will face annual fines of roughly $2,000 per full-time employee, minus the first thirty employees, see 26 U.S.C. §§ 4980H(a), (c)(1), and those that provide coverage that does not comply with the Mandate may be subject to penalties of $100 a day per employee. See 26 U.S.C. § 4980D(b)(1). In sum, the challenged regulations contain categorical exemptions that exclude the employers of literally tens of millions of Americans and their dependents from the requirement to provide “preventative services” coverage.
ARGUMENT This Court may properly exercise its discretion and grant Plaintiffs injunctive relief under Fed. R. Civ. P. 65. In exercising that discretion, this Court considers “(1) the threat of irreparable
4/ See 26 C.F.R. § 54.9815-1251T (2010); 29 C.F.R. § 2590.715-1251 (2010); 45 C.F.R. § 147.140 (2010). 5/ See 42 U.S.C. § 18011 (2010); 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). 6/ 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012). A religious employer was defined as one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under IRC §§ 6033(a)(1) and (a)(3)(A)(i) or (iii).
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harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113, 114 (8th Cir. 1981) (en banc); accord Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789, 791 (E.D. Mo. 2011). “In balancing the equities no single factor is determinative,” id., but the movant must make a threshold showing of being likely to prevail on the merits. Planned Parenthood of MN v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR RFRA
CLAIM. For purposes of their motion, Plaintiffs rely on Count I of their Complaint (RFRA). (Doc. 1.) Plaintiffs preserve the other claims and issues in their Complaint. The Eighth Circuit has issued injunctions pending appeal in two cases that are, in all material respects, indistinguishable from this case. O’Brien v. U.S. Dep’t of HHS, No. 12-3357 (8th Cir. Nov. 28, 2012); Annex Med. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013). Another court within this very district has granted a temporary restraining order against enforcement of the Mandate, see Sharpe Holdings, Inc. v. U.S. Dept. of HHS, No. 2:12-CV-92, 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012) (relying in part on O’Brien in concluding that plaintiffs had shown a reasonable likelihood of success on the merits), and the U.S. District Court for the Western District of Missouri has granted a preliminary injunction, see Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12cv-3459, 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012). In fact, since July of 2012,
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nine courts, including the Seventh Circuit, in a total of thirteen separate cases, have preliminarily
enjoined application of the Mandate to for-profit employers like Plaintiffs.7/
A. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion.
Under RFRA, the “[g]overnment shall not substantially burden a person’s exercise of
religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1(a).
The only time the federal government may substantially burden a person’s exercise of religion is
if “it demonstrates that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b) (emphasis added).
In Annex Medical, the Eighth Circuit considered a motion seeking preliminary relief that
was nearly identical to Plaintiffs’ motion. 2013 App. LEXIS 2497. There, appellants argued that
the Mandate substantially burdened their exercise of religion by requiring them to violate their
Catholic faith, specifically the religious belief that paying for a group health plan that includes
“coverage for abortifacient drugs, sterilization, and contraception supplies and prescription
medications . . . is sinful and immoral.” Id. at *3 (internal quotations omitted). Appellants
7/ Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012); Grote v. Sebelius, No. 13-1077, 2013 U.S. App. LEXIS 2112 (7th Cir. Jan. 30, 2013); Korte v. Sebelius, No. 12-3841, 2012 U.S. App. LEXIS 23764 (7th Cir. Dec. 28, 2012); Monaghan v. Sebelius, 2012 U.S. Dist. LEXIS 182857 (E.D. Mich. Mar. 14, 2013); Geneva College v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 30265 (W.D. Pa. Mar. 6, 2013); Sioux Chief Mfg. Co., Inc. v. Sebelius, No. 4:13-cv-00036 (W.D. Mo. Feb. 28, 2013); Triune Health Grp., Inc. v. U.S. Dep’t of Health & Human Servs., No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013); Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92, 2012 U.S. Dist. LEXIS 182942 (E.D. Mo. Dec. 31, 2012); Am. Pulverizer Co. v. U.S. Dep’t of Health & Human Servs., No. 12-cv-3459, 2012 U.S. Dist. LEXIS 182307 (W.D. Mo. Dec. 20, 2012); Tyndale House Publ’rs, Inc. v. Sebelius, No. 12-1635, 2012 U.S. Dist. LEXIS 163965 (D.D.C. Nov. 16, 2012); Legatus v. Sebelius, No. 12-12061, 2012 U.S. Dist. LEXIS 156144 (E.D. Mich. Oct. 31, 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).
But see Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 U.S. Dist. LEXIS 4449, at *10–14 (E.D. Pa. Jan. 11, 2013), appeal docketed, No. 13-1144, 2013 U.S. App. LEXIS 2706, at *6 (3d Cir. Jan. 29, 2012) (denying injunction pending appeal); Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 U.S. Dist. LEXIS 184093, at *15-23 (W.D. Mich. Dec. 24, 2012), appeal docketed, No. 12-2673, 2012 U.S. App. LEXIS 26736 (6th Cir. Dec. 28, 2012) (same); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012), appeal docketed, No. 12-6294, 2012 U.S. App. LEXIS 26741 (10th Cir. Dec 20, 2012) (denying injunction pending appeal), and 133 S. Ct. 641 (2012) (Sotomayor, J., in chambers) (same).
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contended that because the Mandate does not serve any compelling governmental interest through the least restrictive means, it violated their rights under RFRA. In addressing these arguments, the Eighth Circuit looked to the earlier decision in O’Brien, 2012 U.S. App. LEXIS 26633, in which the panel issued a stay pending appeal, and clarified that the decision was a grant of “the only motion that was pending before the court: a motion for an injunction pending appeal.” Id. at *8. Clearing up the apparent confusion among the district courts within the circuit, the Annex Medical court explained that “[t]o grant the pending motion, the O’Brien panel necessarily concluded that the appellants satisfied the prerequisites for an injunction pending appeal, including a sufficient likelihood of success on the merits and irreparable harm.” Id. at *89. Recognizing the substantial similarities between the case before it and the O’Brien case, and the “significant interest in uniform treatment of comparable requests for interim relief within th[e] circuit,” the Annex Medical court likewise granted appellants’ motion for preliminary injunction pending appeal.
The facts of the present case are not meaningfully distinguishable from those in O’Brien and Annex Medical. Like Mr. O’Brien, Mr. Lind, and their respective businesses, Plaintiffs here have a sincere religious objection to including coverage for contraceptives, abortifacients, and related counseling in the group health plan for employees of the Bick Companies. Like O’Brien and Lind, the Bicks wish to provide health coverage for their employees in a manner that is consistent with their religious beliefs without the imposition of potentially ruinous penalties for doing so. Like O’Brien and Lind, Plaintiffs are being directly pressured by the government, through application of the Mandate, to violate their beliefs as a prerequisite to staying in business. By coercing the Bicks and their businesses into choosing between violating their religious beliefs or paying substantial penalties for adherence to those beliefs, the government
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has placed a substantial burden on their right to freely exercise their religion, as protected by the Religious Freedom Restoration Act.
B. Defendants Cannot Demonstrate a Compelling Governmental Interest. As in O’Brien, Annex Medical, and all the other similar cases brought under RFRA, the government may impose this substantial burden on Plaintiffs’ religious exercise only if it can demonstrate that the Mandate serves “a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). As described above, the strict scrutiny test imposed by RFRA must be conducted “through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (emphasis added). It is therefore not enough for the government to describe a compelling interest in the abstract or in a categorical fashion; the government must demonstrate that the interest “would be adversely affected by granting an exemption” to the religious claimant. Id. In other words, in this case the government must demonstrate that exempting Plaintiffs from the Mandate would jeopardize its asserted interests even though the government willingly exempts thousands of other employers who employ tens of millions of employees. As courts addressing the very claim presented here have repeatedly held, however, Defendants cannot overcome this high hurdle. The Supreme Court has stated, “[i]t is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993) (citations and internal quotation marks omitted). Following this teaching, courts have noted the
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colossal number of employees whose employers are not subject to the Mandate and whose health and equality interests are completely unaffected by it, and have concluded that this “massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.” Newland, 881 F. Supp. 2d at 1298; see also id. at 1291 (finding, based on government estimates, that “191 million Americans belong to plans which may be grandfathered under the ACA”) (emphasis added); Tyndale House Publ’rs, 2012 U.S. Dist. LEXIS 163965, at *61 (holding, in light of “the myriad of exemptions to the contraceptive coverage mandate already granted by the government,” that it had “not shown a compelling interest in requiring the plaintiffs to provide the specific contraceptives to which they object”); Am. Pulverizer Co., 2012 U.S. Dist. LEXIS 182307, *14 (“these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs”).
The alleged compelling nature of the government’s asserted interests is further undermined by the fact that although grandfathered plans need not comply with the preventive services coverage provision challenged here, they must comply with other provisions of the ACA—the prohibition on excessive waiting periods and the extension of dependent coverage, for example.8/ The government’s decision to impose certain provisions of the ACA on grandfathered plans—but not the preventive services coverage provision—indicates that the government itself does not think that the Mandate is necessary to protect an interest of the “highest order.” Nor can Defendants explain how their alleged interests can be compelling when employers with fewer than fifty employees9/ have no obligation to provide health insurance for
8/ For a summary of the applicability of ACA provisions to grandfathered health plans, see Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf (last visited Mar. 20, 2013).
9/ More than 20 million individuals are employed by firms with fewer than twenty employees. STATISTICS ABOUT BUSINESS SIZE (INCLUDING SMALL BUSINESS) FROM THE U.S. CENSUS BUREAU, U.S. CENSUS BUREAU, http://www.census.gov/econ/smallbus.html (last visited Mar. 20, 2013).
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Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 16 of 21 PageID #: 58
their employees and thus no obligation to cover the goods and services that Plaintiffs object to covering.10/ In other words, Defendants cannot sufficiently explain how there is a compelling interest in coercing Plaintiffs into violating their religious principles when businesses with fewer than fifty employees can avoid the Mandate entirely by not providing any insurance.
Finally, with regard to the government’s asserted interest in promoting gender equality in the workplace, the Eighth Circuit has implicitly recognized that an employer’s exclusion of contraceptive coverage from its employee health plan does not jeopardize that interest. In In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007), the court held that where a health plan excluded contraceptive coverage for both women and men, the plan did not amount to gender-based discrimination under Title VII as amended by the Pregnancy Discrimination Act. If the failure to provide cost-free contraceptive services to women does not amount to discrimination (when men are also not covered), then the Mandate is a solution in search of a problem. Cf. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2727, 2738 (2011) (“The State must specifically identify an ‘actual problem’ in need of solving, and the curtailment . . . must be actually necessary to the solution.”).
In sum, Defendants cannot demonstrate a compelling need to require Plaintiffs to comply with a mandate for their approximately 143 employees that does not apply to the employers of tens of millions of employees nationwide. Defendants cannot show a “substantial threat to public safety, peace or order” should Plaintiffs be exempted from the Mandate. Wisconsin v. Yoder, 406 U.S. 205, 230 (1972).
10/ Employers are not subject to penalties for not providing health insurance coverage if they have fewer than fifty full-time employees. 26 U.S.C. § 4980H(c)(2).
11

Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 17 of 21 PageID #: 59
C. The Mandate Is Not The Least Restrictive Means of Achieving a Compelling Governmental Interest.
The existence of a compelling interest in the abstract does not give Defendants carte blanche to promote that interest through any regulation of their choosing particularly where, as here, the regulation runs up against what Defendants themselves recognize is the exercise of a fundamental right. If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).
Assuming arguendo that the interests proffered by Defendants were compelling in this context, the Mandate is not the least restrictive means of furthering those interests. If Defendants wish to further the interests of health and equality by means of free access to contraceptive services, they could do so in a myriad of ways without coercing Plaintiffs, in violation of their religious exercise, into doing so. For example, the government could 1) provide these services to citizens itself, as it already does for numerous individuals through existing programs; 2) allow citizens who pay to use contraceptives to submit receipts to the government for reimbursement; 3) offer tax deductions or credits for the purchase of contraceptive services; or 4) provide incentives for pharmaceutical companies that manufacture contraceptives to provide such products to pharmacies, doctor’s offices, and health clinics free of charge.
Each of these options would further Defendants’ proffered interests in a direct way that would not impose a substantial burden on persons such as Plaintiffs. See Newland, 881 F. Supp. 2d at 1298-99 (rejecting government’s claim that the Mandate furthers a compelling governmental interest through the least restrictive means). Of the various ways the government could achieve its interests, it has chosen a path with clear and undeniable adverse consequences to employers with religious objections to contraceptive services, such as Plaintiffs.
12

Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 18 of 21 PageID #: 60
Although Defendants may contend that any or all of these options would prove difficult to establish or operate, “least restrictive means” does not mean the most convenient way for the government. Even if the government claims these or other options would not be as effective or efficient as the Mandate, “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 824 (2000) (emphasis added). In fact, if a less restrictive alternative would serve the government’s purpose, “the legislature must use that alternative.” Id. at 813. The asserted interests of health and equality “cannot be invoked as a talismanic incantation to support any [law].” United States v. Robel, 389 U.S. 258, 263 (1967). Thus, Plaintiffs are likely to succeed on their RFRA claim. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN
INJUNCTION, WHILE DEFENDANTS WILL SUFFER NO HARM. An injunction should be issued because Plaintiffs’ RFRA rights are being violated by the Mandate on a continuing basis as discussed previously. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (“[A] plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.”). Each day that Plaintiffs are subject to application of the Mandate is another day that they must choose between violating their religious beliefs (by providing coverage for the objectionable drugs and services) and paying enormous penalties as the price of adhering to those beliefs. That the companies cannot purchase new coverage or amend their current coverage to exclude the objectionable services because of the Mandate is proof that the Plaintiffs are—at this moment—suffering irreparable harm. Any argument that Defendants would be harmed by the issuance of a Preliminary Injunction in this case would be meritless. Defendants themselves have already stayed their hand for thousands upon thousands of employers such that millions of employees and their dependents are not covered by the Mandate. An order requiring Defendants to refrain from applying the
13

Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 19 of 21 PageID #: 61
Mandate to the Bicks and the Bick Companies while this case is pending could not conceivably be said to cause harm to any of the Defendants’ interests. Moreover, there is no legitimate governmental interest to be furthered by Defendants’ infringement of Plaintiffs’ rights. See Legatus, 2012 U.S. Dist. LEXIS 156144, *44 (“The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.”). III. THE PUBLIC INTEREST FAVORS A PRELIMINARY INJUNCTION.
The public has no interest in having Defendants violate Plaintiffs’ rights under RFRA; to the contrary, the public has a strong interest in the preservation of religious freedom (as Congress recognized in enacting RFRA). Also, Plaintiffs do not seek to enjoin the Mandate as to all employers, only as to themselves. As such, an injunction will not harm the public interest.
CONCLUSION Because the Plaintiffs have shown that they are currently suffering irreparable harm, they are likely to succeed on the merits of their claims, the balance of harms favors the Plaintiffs, and no harm to the public interest would result from the issuance of the relief requested, and in light of the “significant interest in uniform treatment of comparable requests for interim relief” within the Eighth Circuit, this Court should grant Plaintiffs’ motion for a Preliminary Injunction against Defendants’ requirement that Plaintiffs, in violation of their religious beliefs, include in their employee health plan coverage for contraceptives, abortifacients, and related patient education and counseling. A proposed form of Order is attached.
14

Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 20 of 21 PageID #: 62

Respectfully submitted on this 25th day of March, 2013.

Carly F. Gammill* American Center for Law & Justice 188 Front St., Suite 116-19 Franklin, TN 37064 Tel: (615) 415-4822 Fax: (615) 599-5189 cgammill@aclj-dc.org
Edward L. White III P62485 American Center for Law & Justice 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984; Fax: (734) 302-1758 ewhite@aclj.org

/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* American Center for Law & Justice PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 fmanion@aclj.org gsurtees@aclj.org
Erik M. Zimmerman* American Center for Law & Justice 1000 Regent University Drive Virginia Beach, Virginia 23464 Tel. (757) 226-2489; Fax. (757) 226-2836 ezimmerman@aclj.org
Counsel for Plaintiffs
*admitted pro hac vice

15

Case: 4:13-cv-00462-AGF Doc. #: 9 Filed: 03/25/13 Page: 21 of 21 PageID #: 63

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is an attorney at law and is a person of such age

and discretion as to be competent to serve process. On March 25th, 2013 he caused to be served a

copy of the foregoing by placing said copy in an overnight envelope and addressed to the persons

hereinafter named at the addresses stated below and by depositing said envelope and its contents

with the United States Mail:

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

Jacob J. Lew U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

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

Richard Callahan
U.S. Attorney Thomas Eagleton U.S. Courthouse 111 South 10th St., 20th Floor St. Louis, MO 63102

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

 
 Case: 4:13-cv-00462-AGF Doc. #: 9-2 Filed: 03/25/13 Page: 1 of 5 PageID #: 69

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BICK HOLDINGS, INC., and BICK

)

GROUP INC., MARY FRANCES

)

CALLAHAN, MARY CLARE BICK, )

JAMES PATRICK BICK, JR.,

)

WILLIAM JOSEPH BICK,

)

MARY PATRICIA DAVIES,

)

Case No. 4:13-cv-462

JOSEPH JOHN BICK, FRANCIS

)

XAVIER BICK, MARY MARGARET )

JONZ, MARY SARAH ALEXANDER, )

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES; )

KATHLEEN SEBELIUS, in her official )

Capacity as the Secretary of the United )

States Department of Health and Human )

Services; UNITED STATES

)

DEPARTMENT OF THE TREASURY; )

JACOB J. LEW, in his official

)

capacity as the Secretary of the

)

United States Department of the Treasury; )

UNITED STATES DEPARTMENT OF )

LABOR; and SETH D. HARRIS, in his )

official capacity as Acting Secretary of the )

United States Department of Labor,

)

)

)

Defendants.

)

______________________________________________________________________________

[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION

FOR A PRELIMINARY INJUNCTION

Before this court is Plaintiffs’ motion for preliminary injunction. The court, having

considered the arguments of counsel in support of, and in opposition to, the motion, hereby finds

as follows:

Case: 4:13-cv-00462-AGF Doc. #: 9-2 Filed: 03/25/13 Page: 2 of 5 PageID #: 70
1. Plaintiffs, the Bicks, are individuals and citizens of the State of Missouri and the United States. The Bicks hold 91% of the voting interest in Plaintiff, Bick Holdings, Inc. (“BHI”). The individual Plaintiffs have ultimate responsibility and authority for setting and organizing all phases and policies of the businesses of the corporate Plaintiffs.
2. Plaintiff, BHI, a Missouri corporation, is the holding company for and 100% owner of the BHI operating companies, Bick Group Inc., Bick Properties, Inc., and SEALCO, LLC.
3. Plaintiff, Bick Group Inc. (“Bick Group”), a Missouri corporation, is a wholly-owned subsidiary of BHI and maintains the group health plan for the employees of BHI’s operating companies.
4. Plaintiff BHI and its subsidiaries currently have approximately 196 fulltime employees. 143 employees are covered by a group policy of health insurance offered through Bick Group and underwritten by United Healthcare Insurance Company.
5. Plaintiffs allege that regulations promulgated by Defendants require Plaintiffs to provide, as part of a company-funded health insurance plan, all FDAapproved methods of contraception, sterilization and patient education and counseling related thereto, referred to hereafter as “the Mandate.”
6. Defendants’ Mandate is contained in 42 U.S.C. § 300gg-13(a)(4), 75 Fed. Reg. 41726-60 (July 19, 2010), and Health Resources and Services Administration guidelines available at http://www.hrsa.gov/womensguidelines. See also 76 Fed. Reg. 46621, 46622 (Aug. 3, 2011); 45 C.F.R. § 147.130, adopted “without change” at 77 Fed. Reg. 8725, 8729. In addition, provisions regarding grandfathered plans are at 75 Fed.
2

Case: 4:13-cv-00462-AGF Doc. #: 9-2 Filed: 03/25/13 Page: 3 of 5 PageID #: 71
Reg. 41726, 41731, and provisions regarding small employer and other exemptions are at 26 U.S.C. § 4980H(c)(2)(A) and 26 U.S.C. §§ 5000A(d)(2)(a)(i), (ii), (b)(ii).
7. The Plaintiffs believe that paying for all FDA-approved methods of contraception, sterilization and patient education and counseling related thereto is sinful and in violation of their religious beliefs.
8. BHI’s group health plan was renewed on January 1, 2013 and currently contains the mandated contraceptive and abortifacient coverage objected to by the Bicks and their companies.
9. Plaintiffs wish to exclude from their company-funded plan coverage for contraception, sterilization and related patient education and counseling.
10. Defendants’ Mandate will not permit Plaintiffs to create a companyfunded plan that excludes the aforementioned services.
11. Defendants’ Mandate currently would permit exemptions for some classes of religious objectors but not Plaintiffs.
12. Employers of some 98 million employees with “grandfathered” health plans are not required to comply with Defendants’ Mandate.
13. Plaintiffs are requesting a preliminary injunction against Defendants’ application of the Mandate to them. Plaintiffs contend that the Mandate violates Plaintiffs’ rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. Plaintiffs raise additional claims in their complaint, which they preserve.
14. The requirements of the Mandate substantially burden Plaintiffs’ exercise of their religious beliefs.
15. The Mandate is not justified by a compelling governmental interest.
3

Case: 4:13-cv-00462-AGF Doc. #: 9-2 Filed: 03/25/13 Page: 4 of 5 PageID #: 72
16. The Mandate is not the least restrictive means to further any compelling governmental interest.
17. Plaintiffs have demonstrated a strong likelihood of success on the merits of their claims under RFRA.
18. Plaintiffs will suffer irreparable harm in the absence of preliminary injunctive relief.
19. Defendants will not suffer any harm or costs by the granting of Plaintiffs’ motion for preliminary injunction.
20. The balance of equities tips in Plaintiffs’ favor. 21. The public interest will be served and not harmed by the granting of the requested relief. 22. Plaintiffs have no adequate remedy at law other than obtaining a declaratory judgment and injunctive relief. Accordingly, IT IS HEREBY ORDERED THAT: 1. Plaintiffs’ motion for preliminary injunction is GRANTED; 2. Defendants, their officers, agents, servants, successors in office, employees, attorneys, and those acting in concert or participation with them, and including any insurance carriers, or third party insurance plan administrators with whom Plaintiffs may contract for group health benefits are ENJOINED from applying and enforcing against Plaintiffs any statutes or regulations that require Plaintiffs to include in their employee health benefit plan coverage for all FDA-approved emergency contraceptive methods, and related patient education and counseling for women with reproductive capacity, including the application of any penalties and fines, including
4

Case: 4:13-cv-00462-AGF Doc. #: 9-2 Filed: 03/25/13 Page: 5 of 5 PageID #: 73 those found in 26 U.S.C. § 4980D and § 4980H, and any determination that the requirements are applicable to Plaintiffs; and 3. No bond shall be required of Plaintiffs. IT IS SO ORDERED in Chambers on ____________________, 2013. _______________________________ Hon. Audrey G. Fleissig United States District Court Judge
5

 
 Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 1 of 6 PageID #: 107

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

BICK HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 4:13-cv-462

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

DEFENDANTS’ UNOPPOSED MOTION TO STAY PROCEEDINGS AND NOTICE OF NON-OPPOSITION TO PLAINTIFFS’ MOTION
FOR PRELIMINARY INJUNCTION

In light of the rulings of motions panels of the Eighth Circuit in O’Brien v. HHS, No. 12-

3357, Order (8th Cir. Nov. 28, 2012), and Annex Medical, Inc. v. Sebelius, No. 13-1118, Order

(8th Cir. F eb. 1, 2012), granting injunctions pe nding appeal in cases sim ilar to this one

challenging the con traceptive coverage regulations, defendants wr ite to inform the Court that

they do not oppose plaintiffs’ Motion for Prelim inary Injunction, ECF No. 8, on i ts Religious

Freedom Restoration Act (RFRA) claim , until such tim e as the app eal in O’Brien or Annex

Medical is resolved, whichever occurs first. In light of the pending appeals and defendants’ non-

opposition to a preliminary injunction until the appeal in O’Brien or Annex Medical is resolved,

defendants move to stay all proceedings in this case until such time.

For the reasons stated in defendants’ oppositio ns to plaintiffs’ m otions for prelim inary

injunction in O’Brien and Annex Medical, see Defs.’ Me m. of La w in Opp’n to Pls.’ Mot. for

Prelim. Inj., O’Brien v. HHS, No. 4:12-cv-00476-CEJ (E.D. Mo. Sept. 14, 2012), ECF No. 47;

Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for Prelim . Inj., Annex Medical v. Sebelius , No. 12-

Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 2 of 6 PageID #: 108
cv-02804-DSD-SER (D. Minn. Dec. 12, 2012), ECF No . 17, as well as the district courts’
decisions denying preliminary relief in those cases, see O’Brien v. HHS, __ F. Supp. 2d __, 2012
WL 4481208 (E.D. Mo. Sept. 28, 2012); Annex Medical, Inc. v. S ebelius, No. 12-cv-02804-
DSD-SER, 2013 WL 203526 (D. Minn. Jan. 17, 2013), defendants do not believe that plaintiffs
are likely to succeed on the merits of any of th eir claims, and believe that the d ecisions of the
motions panels in O’Brien and Annex Medical were incorrect. Furthermore, the decisions of the
motions panels in O’Brien and Annex Medical are not binding on this Cour t. See In re
Rodriquez, 258 F.3d 757, 759 (8th Cir. 2001); see also United States v. Henderson , 536 F.3d 776, 778 (7th Cir. 2008); Lambert v. Blackwell , 134 F.3d 506, 513 n.17 (3d Cir. 1997). 1
Nonetheless, defendants acknowledge that, even if this Court were to agree with defendants and
deny plaintiffs’ request for a prelim inary injunction, plaintiffs would likely then seek an
injunction pending appeal, which w ould likely be granted for the reasons already articulated by the motions panels in O’Brien and Annex Medical.2 See Annex Medical, No. 13-1118, Order at
5-6 (8th Cir. Feb. 1, 2012) (gra nting plaintiffs’ m otion for an injunction pending appeal,
“consistent with the O’Brien order,” because “there is a sig nificant interest in uniform treatment
of comparable requests for interim relief within this circuit”). Therefore, defendants do not
1 In addition, m otions panels in four other circuits have reached different conclusions than the motions pane ls in O’Brien and Annex Medical. See Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012); Autocam Corp. v. Sebelius, No. 12-2673, Order (6th Cir. Dec. 28, 2012), reconsideration denied, No. 12-2673 (6th Cir. Dec. 31, 2012); Conestoga Wood Specialties Corp. v. Sebelius , No. 13-1144, Order (3d Cir. Feb. 7, 2013); Gilardi v. HHS, No. 135039, Order (D.C. Cir. Mar. 2 1, 2013). And, the motions panel in O’Brien was divided. See O’Brien, No. 12-3357, Order (8th Cir. Nov. 28, 2012).
2 Defendants note that there are factors in this case that may distinguish it from O’Brien and Annex Medical. Among other things, the individual plaintiffs do not wholly own the company plaintiffs. See Compl. ¶¶ 9, 12. Instead, there is at least one other shareholder who is not a plaintiff in this case. Id. Defendants nevertheless believe it would be prudent for the Court to await the Eighth Circuit’s views on the general legal issues presented in O’Brien, Annex Medical, and this case, see infra p. 3, before assessing the import of these differences, and others, in this case.
2

Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 3 of 6 PageID #: 109
oppose the entry of preliminary injunctive relief in favor of plaintiffs based on their RFRA claim at this time, to last until the pending appeal in O’Brien or Annex Medical is resolved, whichever occurs first. Defendants would suggest that the preliminary injunction remain in effect until 30 days after the m andate issues from the Eighth Circuit in O’Brien or Annex Medical, whichever occurs first, to give the Court and the par ties sufficient time to a ssess the impact of the Eighth Circuit’s ruling on this case.
Defendants also respectfully ask this Court to stay all proceedings in this case pending the resolution of the appeals in O’Brien and Annex Medical. Plaintiffs do not oppose this request.
“[T]he power to stay proceed ings is inciden tal to the power inherent in every cou rt to control the disposition of the causes of its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgm ent, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co. , 299 U.S. 248, 254-55 (1936). In the O’Brien and Annex Medical appeals, the Eighth Circuit will be addressing legal issues that are substantially sim ilar to those presented in this case, involving facts that are analogous in m any respects (but not all, see supra n. 2) to those in this cas e, challenging the same regulations that are challenged in this case, and raising claims that are also largely indistinguishable from those in this case brought against th e same defendants as those in this case. A mong the questions that the Eighth Ci rcuit may very well decide are: (1) whether a for-profit, secular corp oration can exercise religion under RFRA; (2) whether an obligation imposed on a corporation can be a substantial bu rden on the corporation’s owners under RFRA; (3) whether any burden im posed on the corpor ation or its owners under the challenged regulations is too attenuated to qu alify as “substantial” under RFRA; and (4) whether the
3

Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 4 of 6 PageID #: 110
challenged regulations are narrowly tailored to serve com pelling governmental interests. Thus, even if the Eighth Circ uit’s ruling does not entirely dispose of this case, the outcom e of the appeals is likely to sub stantially affect the out come of this litigation, and the Court and th e parties will undoubtedly benefit from the Eighth Circuit’s views.
If this case is not stayed , defendants will file a motion to dism iss the case f or failure to state a claim. This motion will raise many of the same legal issues that are likely to be addressed by the Eighth Circuit. It woul d be highly inef ficient to spe nd the resources and tim e of the parties and this Court for litigation to proceed on these issues simultaneously in both courts. See Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008) (“[T]he district court has broad discretion to decide whether a st ay is appropriate to prom ote economy of tim e and e ffort for itself, for counsel, and for litig ants.”). Nor will there be an y prejudice to plaintiffs if the proceedings are stayed, as they will have the benefit of a preliminary injunction during the pendency of the stay.
Finally, defendants note that se veral district courts – including the district court in Annex Medical – have stayed proceedings in sim ilar circumstances in litigation challenging the contraceptive coverage regulations. See, e.g., Order, Annex Medical, Inc. v. Sebelius, No. 12-cv02804-DSD-SER (D. Minn. Jan. 25, 2013), ECF No. 53; Order, Korte v. Sebelius, No. 3:12-cv01072 (S.D. Ill. Dec. 28, 2012), E CF No. 63; Order, Conestoga Wood Specialties, Corp. v. Sebelius, No. 5:12-cv-06744 (E.D. Pa. Jan. 16, 2013), EC F No. 55; Order, Hobby Lobby v. Sebelius, No. 5:12-cv-01000 (W.D. Okla. Dec. 12, 2012), ECF No. 55.
For these reasons, defendants ask this Court to stay all proceedings in this case pending resolution of the appeal in O’Brien or Annex Medical, whichever occurs first.
Respectfully submitted this 28th day of March, 2013,
4

Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 5 of 6 PageID #: 111

STUART Princip IAN
RICHARD United JENNIFER
SHEILA Deputy
Trial United Civil

F. DELERY al Deputy Assistant Attorney General

HEATH GERSHENGORN Deputy Assistant Attorney General

G. CALLAHAN States Attorney

RICKETTS Director

M. LIEBER Director

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

5

Case: 4:13-cv-00462-AGF Doc. #: 17 Filed: 03/28/13 Page: 6 of 6 PageID #: 112

CERTIFICATE OF SERVICE I hereby certify that on March 28, 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.

MICHELLE

s/ Michelle R. Bennett

_

R. BENNETT

6

 
 Case: 4:13-cv-00462-AGF Doc. #: 17-1 Filed: 03/28/13 Page: 1 of 1 PageID #: 113

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

BICK HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 4:13-cv-462

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

[PROPOSED] ORDER

The Court, having reviewed Defendants’ U nopposed Motion to Stay Proceedings and

Notice of Non-Opposition to Plaintiffs’ Motion for Preliminary Injunction, hereby grants the

motion and orders as follows:

Defendants are her eby ENJOINED, until 30 d ays after the mandate issues f rom the

Eighth Circuit in O’Brien v. HHS, No. 12-3357, or Annex Medical, Inc. v. Sebelius, No. 13-1118,

whichever occurs first, from applying or enforcing the contraceptive coverage regulations against

Bick Holdings, Inc.; Bick Group, Inc.; or their employee health plan(s) or insurer(s).

All proceedings in this case are stayed pending resolution of the appeal in O’Brien or

Annex Medical, whichever occurs first.

IT IS SO ORDERED.

Date: ____________________ The

__________________________________ Honorable Audrey G. Fleissig

 
 Case: 4:13-cv-00462-AGF Doc. #: 23 Filed: 11/10/14 Page: 1 of 3 PageID #: 137

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

____________________________________

)

BICK HOLDINGS, INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 4:13-cv-462

)

SYLVIA M. BURWELL, et al.,

)

)

Defendants.

)

____________________________________)

JOINT MOTION FOR ENTRY OF INJUNCTION AND JUDGMENT
In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the parties jointly agree that judgment should be entered in favor of plaintiffs on their Religious Freedom Restoration Act claim, that a permanent injunction should be entered, that all other claims against defendants should be dismissed, and that the deadline for any petition by plaintiffs for attorneys’ fees or costs should be extended to 60 days after judgment is entered. Accordingly, the parties respectfully request that the Court enter the attached Injunction and Judgment, which has been agreed to by all parties.
The parties further request that this joint motion be deemed to satisfy their obligation to notify the Court within ten days of the issuance of the mandates in O’Brien v. HHS, No. 12-3357 (8th Cir.), and Annex Medical, Inc. v. Sebelius, No. 13-1118 (8th Cir.). See Order, ECF No. 19 (Apr. 1, 2013).

Case: 4:13-cv-00462-AGF Doc. #: 23 Filed: 11/10/14 Page: 2 of 3 PageID #: 138
Respectfully submitted this 10th day of November, 2014,
Attorneys for Plaintiffs
_/s/ Francis J. Manion_____________ Francis J. Manion Geoffrey R. Surtees AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020; Fax: (502) 549-5252 fmanion@aclj.org, gsurtees@aclj.org
Edward L. White III AMERICAN CENTER FOR LAW & JUSTICE 3001 Plymouth Road, Suite 203 Ann Arbor, MI 48105 Tel: (734) 680-8007; Fax: (734) 680-8006 ewhite@aclj.org
Attorneys for Defendants
JOYCE R. BRANDA Acting Assistant Attorney General
RICHARD G. CALLAHAN United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
Attorneys for Defendants.
2

Case: 4:13-cv-00462-AGF Doc. #: 23 Filed: 11/10/14 Page: 3 of 3 PageID #: 139

CERTIFICATE OF SERVICE I hereby certify that on November 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT

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 Case: 4:13-cv-00462-AGF Doc. #: 24 Filed: 11/18/14 Page: 1 of 2 PageID #: 142

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BICK HOLDINGS, INC., et al., Plaintiffs,
v. SYLVIA M. BURWELL, et al.,
Defendants.

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Case No. 4: 13-cv-462

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CONSENT INJUNCTION AND JUDGMENT In light of the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon the parties' Joint Motion for Entry oflnjunction and Judgment, it is hereby ORDERED that defendants, their employees, agents, and successors in office are permanently enjoined (a) from enforcing
(I) the "June 30, 2014 Contraceptive Coverage Requirement," defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiffs Bick Holdings, Inc. and Bick Group Inc. (hereinafter, "Bick Companies") to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(l)(iv); 45 C.F.R. § 147.130(a)(l)(iv); and

Case: 4:13-cv-00462-AGF Doc. #: 24 Filed: 11/18/14 Page: 2 of 2 PageID #: 143
(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and ll85d; and
(b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement
against plaintiffs Bick Companies, their employee health plan(s), the group health coverage provided in connection with such plan(s), and/or the Bick Companies' health insurance issuers and/or third-party administrators with respect to the Bick Companies' health plan(s); and it is further
ORDERED that judgment is entered in favor of plaintiffs and against defendants on
plaintiffs' claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and
it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys' fees or costs shall be submitted
on or before 60 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued; and it is further
ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
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 Case: 4:13-cv-462 As of: 11/02/2017 01:20 PM CDT 1 of 7
STAYED,CLOSED
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:13−cv−00462−AGF

Bick Holdings Inc. et al v. United States Department of Health & Human Services et al Assigned to: District Judge Audrey G. Fleissig Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/13/2013 Date Terminated: 11/18/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Bick Holdings, Inc.

represented by Erik M. Zimmerman AMERICAN CENTER FOR LAW & JUSTICE 1000 Regent University Drive Virginia Beach, VA 23464 757−226−2489 Fax: 757−226−2836 Email: ezimmerman@aclj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III AMERICAN CENTER FOR LAW AND JUSTICE 5068 Plymouth Road Ann Arbor, MI 48105 734−680−8007 Fax: 734−680−8006 Email: elwhite3@yahoo.com ATTORNEY TO BE NOTICED

Geoffrey R. Surtees AMERICAN CENTER FOR LAW AND JUSTICE P.O. Box 60 New Hope, KY 40052 502−549−7020 Fax: 502−549−5252 Email: gsurtees@aclj.org ATTORNEY TO BE NOTICED

Francis J. Manion AMERICAN CENTER FOR LAW AND JUSTICE P.O. Box 60 New Hope, KY 40052 502−549−7020 Fax: 502−549−5252 Email: fmanion@aclj.org ATTORNEY TO BE NOTICED

Plaintiff Bick Group, Inc.

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-462 As of: 11/02/2017 01:20 PM CDT 2 of 7

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Frances Callahan

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Clare Bick

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff James Patrick Bick, Jr.

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:13-cv-462 As of: 11/02/2017 01:20 PM CDT 3 of 7

William Joseph Bick

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Patricia Davies

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joseph John Bick

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Francis Xavier Bick

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Case: 4:13-cv-462 As of: 11/02/2017 01:20 PM CDT 4 of 7

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Margaret Jonz

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mary Sarah Alexander

represented by Erik M. Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED

Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Francis J. Manion (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Department of Health and Human Services
Defendant

represented by Michelle R Bennett U.S. DEPARTMENT OF JUSTICE − CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

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

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

Defendant U.S. Department of the Treasury

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

Defendant
Jacob J. Lew in his offical capacity as the Secretary of the United States Department of the Treasury

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

Defendant U.S. Department of Labor

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

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

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

Date Filed 03/13/2013
03/13/2013 03/13/2013 03/13/2013 03/14/2013

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−3721528, in the amount of $350 Non−Jury Demand,, filed by Mary Clare Bick, Bick Holdings, Inc., William Joseph Bick, Mary Frances Callahan, Mary Margaret Jonz, Bick Group, Inc., Mary Patricia Davies, James P. Bick, Jr, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(Manion, Francis) (Entered: 03/13/2013)
2 MOTION for Leave to Appear Pro Hac Vice Francis J. Manion. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−3721641) by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James P. Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (Manion, Francis) (Entered: 03/13/2013)
3 MOTION for Leave to Appear Pro Hac Vice Geoffrey R. Surtees. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−3721665) by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James P. Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (Surtees, Geoffrey) (Entered: 03/13/2013)
4 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James P. Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz.. (Manion, Francis) (Entered: 03/13/2013)
Case Opening Notification, 5 Summons(es) issued @ 60 days. There are still 3 defendants listed on complaint that court has not received service for. Attorney shall file service with the court for ALL remaining defendants. Disclosure of Corporate Interest to be filed by all corporations.. Judge Assigned: U.S. District Judge Audrey G.

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03/15/2013 03/20/2013 03/20/2013 03/22/2013 03/25/2013 03/25/2013
03/26/2013
03/26/2013
03/26/2013
03/26/2013 03/26/2013 03/26/2013

Fleissig. The summonses were emailed to fmanion@aclj.org. (DLT) (Entered: 03/14/2013)
5 Summons Issued, (remaining 3) as to defendant U.S. Department of Health and Human Services, U.S. Department of the Treasury, U.S. Department of Labor. These summonses were emailed to fmanion@aol.com (DLT) (Entered: 03/15/2013)
6 MOTION for Leave to Appear Pro Hac Vice Erik M. Zimmerman. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James Patrick Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (NCL) (Entered: 03/21/2013)
Receipt 4644034574 in the amount of $100.00 for PRO HAC VICE on behalf of ERIK M. ZIMMERMAN (CCAM) (Entered: 03/21/2013)(DLB) (Entered: 03/22/2013)
7 Docket Text ORDER Re: 6 Motion for Leave to Appear Pro Hac Vice Erik M. Zimmerman by Plaintiffs Mary Sarah Alexander, et al.; ORDERED GRANTED. Signed by District Judge Audrey G. Fleissig on March 22, 2013. (SAA) (Entered: 03/22/2013)
8 MOTION for Preliminary Injunction by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James Patrick Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (Manion, Francis) (Entered: 03/25/2013)
9 MEMORANDUM in Support of Motion re 8 MOTION for Preliminary Injunction filed by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James Patrick Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (Attachments: # 1 Affidavit Declaration of James Patrick Bick, Jr., # 2 Text of Proposed Order)(Manion, Francis) (Entered: 03/25/2013)
10 SUMMONS Returned Executed filed by Bick Holdings, Inc., Mary Frances Callahan, Bick Group, Inc., James Patrick Bick, Jr, Mary Clare Bick, William Joseph Bick, Mary Margaret Jonz, Mary Patricia Davies, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. defendantU.S. Department of Health and Human Services served on 3/20/2013, answer due 5/20/2013; U.S. Department of the Treasury served on 3/20/2013, answer due 5/20/2013; U.S. Department of Labor served on 3/20/2013, answer due 5/20/2013. (Attachments: # 1 Exhibit Summons and U.S.P.S. receipts)(Manion, Francis) (Entered: 03/26/2013)
11 SUMMONS Returned Executed filed by Bick Holdings, Inc., Mary Frances Callahan, Bick Group, Inc., James Patrick Bick, Jr, Mary Clare Bick, William Joseph Bick, Mary Margaret Jonz, Mary Patricia Davies, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. defendantKathleen Sebelius served on 3/22/2013, answer due 5/21/2013. (Attachments: # 1 Exhibit Summons and U.S.P.S. receipts)(Manion, Francis) (Entered: 03/26/2013)
12 SUMMONS Returned Executed filed by Bick Holdings, Inc., Mary Frances Callahan, Bick Group, Inc., James Patrick Bick, Jr, Mary Clare Bick, William Joseph Bick, Mary Margaret Jonz, Mary Patricia Davies, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. defendantSeth D. Harris served on 3/22/2013, answer due 5/21/2013. (Attachments: # 1 Exhibit Summons and U.S.P.S. receipts)(Manion, Francis) (Entered: 03/26/2013)
13 Docket Text ORDER Re: 2 Motion for Leave to Appear Pro Hac Vice Francis J. Manion by Plaintiffs Bick Holdings, Inc., et al.; ORDERED GRANTED. Signed by District Judge Audrey G. Fleissig on March 26, 2013. (SAA) (Entered: 03/26/2013)
14 Docket Text ORDER Re: 3 Motion for Leave to Appear Pro Hac Vice Geoffrey R. Surtees by Plaintiffs Bick Holdings, Inc., et al.; ORDERED GRANTED. Signed by District Judge Audrey G. Fleissig on March 26, 2013. (SAA) (Entered: 03/26/2013)
15 MOTION for Leave to Appear Pro Hac Vice Edward L. White. The Certificate of Good Standing was attached.(Filing fee $100 receipt number 0865−3740444) by Plaintiffs Mary Sarah Alexander, Francis Xavier Bick, James Patrick Bick, Jr, Joseph John Bick, Mary Clare Bick, William Joseph Bick, Bick Group, Inc., Mary Frances

Case: 4:13-cv-462 As of: 11/02/2017 01:20 PM CDT 7 of 7

03/27/2013 03/28/2013 03/28/2013 04/01/2013 04/01/2013
04/01/2013 07/06/2013 11/10/2014 11/18/2014

Callahan, Mary Patricia Davies, Bick Holdings, Inc., Mary Margaret Jonz. (Attachments: # 1 Certificate of Good Standing State Bar of Michigan dated 3/20/2013)(White, Edward) (Entered: 03/26/2013)
16 Docket Text ORDER Re: 15 Motion for Leave to Appear Pro Hac Vice Edward L. White by Plaintiffs Bick Holdings, Inc., et al.; ORDERED GRANTED. Signed by District Judge Audrey G. Fleissig on March 27, 2013. (SAA) (Entered: 03/27/2013)
17 RESPONSE to Motion re 8 MOTION for Preliminary Injunction (Notice of Non−Opposition) filed by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of the Treasury, U.S. Department of Labor. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 03/28/2013)
18 Consent MOTION to Stay by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of the Treasury, U.S. Department of Labor. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 03/28/2013)
19 ORDER All proceedings in this case are stayed pending resolution of the appeal in OBrien or Annex Medical, whichever occurs first, and the case shall be closed for administrative purposes only. The Parties shall advise the Court within ten days of the issuance of the mandate in either case. Granting 18 Motion to Stay Signed by District Judge Audrey G. Fleissig on 4/1/13. (JWJ) (Entered: 04/01/2013)
20 SUMMONS Returned Executed filed by Bick Holdings, Inc., Mary Frances Callahan, Bick Group, Inc., James Patrick Bick, Jr, Mary Clare Bick, William Joseph Bick, Mary Margaret Jonz, Mary Patricia Davies, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. defendantJacob J. Lew served on 3/27/2013, answer due 5/28/2013. (Attachments: # 1 Attachment Summons and U.S.P.S. receipts)(Manion, Francis) (Entered: 04/01/2013)
21 SUMMONS Returned Executed filed by Bick Holdings, Inc., Mary Frances Callahan, Bick Group, Inc., James Patrick Bick, Jr, Mary Clare Bick, William Joseph Bick, Mary Margaret Jonz, Mary Patricia Davies, Joseph John Bick, Mary Sarah Alexander, Francis Xavier Bick. defendant All Defendants. (Attachments: # 1 Attachment Summons and U.S.P.S. receipts)(Manion, Francis) (Entered: 04/01/2013)
22 NOTICE of Change of Address filed by Edward L. White, III (White, Edward) (Entered: 07/06/2013)
23 Joint MOTION to Approve Consent Judgment by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of the Treasury, U.S. Department of Labor. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 11/10/2014)
24 CONSENT INJUNCTION AND JUDGMENT (PLEASE SEE ORDER FOR DETAILS). Signed by District Judge Audrey G. Fleissig on 11/18/14. (JWJ) (Entered: 11/18/2014)