Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 1 of 44 PageID #:1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

)

MARTIN OZINGA III, MARTIN

)

OZINGA IV, KARL OZINGA,

)

JUSTIN OZINGA, AARON

)

OZINGA, PAUL OZINGA,

)

TIMOTHY OZINGA, JEFFREY

)

OZINGA, and OZINGA BROS., INC, )

an Illinois corporation,

)

)

)

Plaintiffs,

)

vs.

)

)

UNITED STATES DEPARTMENT )

OF HEALTH & HUMAN

)

SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as )

Secretary of the U.S. Department of )

Health & Human Services; UNITED )

STATES DEPARTMENT OF THE )

TREASURY; JACOB J. LEW, in his )

official capacity as the Secretary of the )

U.S. Department of the Treasury;

)

UNITED STATES DEPARTMENT )

OF LABOR; and SETH D. HARRIS, )

Deputy Secretary of Labor, in his

)

official capacity as Acting Secretary of )

the U.S. Department of Labor,

)

)

Defendants.

No.____________
COMPLAINT Jury Demanded On All Issues So Triable

NOW COMES Plaintif fs Martin Ozinga I II, Martin Ozinga IV, K arl Ozinga, Justin Ozinga, Aaron Ozinga, Paul Ozinga, Timothy Ozinga, Jeffrey Ozinga, and Ozinga Bros., Inc, an Illinois Corporation (hereafter “Plaintiffs”), by and through undersigned counsel, and com plain of the above-nam ed Defendants the United States Department Of Health & Hum an Services; Kathleen Sebelius, in h er official capacity as Secretary of the U.S. Departm ent of Health &

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 2 of 44 PageID #:2
Human Services; the United Sta tes Department of the T reasury; Jacob J. Lew, in his official capacity as the Secretary of the U. S. Departm ent of the Treasury; th e United States Department of Labor; and Seth D. Harris, De puty Secretary of Labor, in his official capacity as Acting Secretary of the U.S. Departm ent of Labor, (c ollectively, the “Defendants”), their em ployees, agents and successors in office, as follows:
Nature of the Case 1. This case seeks to preserve and protect th e foundational rights of a citizenry in a democratic republic, nam ely to fr eely exercise their m ost deeply held religious convictions in their daily lives, including in their freely chosen life’s work and vocation, or as Thom as Jefferson stated early in the life of our Am erican Republic, “to protect the rights of conscience against the enterprises of the civil authority.”1 2. Throughout their management of their fam ily business, individual plaintiffs have made open and m anifest the im portance of their Christian beliefs to ex actly how they conduct that business. Plaintiffs sue for declaratory and injunctive relief, to cease, redress, and repair the Defendants’ grave and ongoing infringem ent of Plaintiffs’ fundamental human right, guaranteed under the First Am endment of the United States C onstitution, as well as their statutory rights arising under other provisions of federal law hereinafter alleged, to continue to engage in the free and robust exercise of their relig ious beliefs, in strict and fa ithful adherence to the deepest
1 Thomas Jefferson to the Society of the Methodist Episcopal Church of New London (February 4, 1809), in XV The Writings of Thomas Jefferson, at 331-332 (Albert Ellery Bergh, ed., Thomas Jefferson Memorial Assoc. 1907 (1905). See: (http://books.google.com/books?id=4zhLAAAAYAAJ&pg=RA1-PA332&lpg=RA1PA332&dq=Jefferson+%22against+the+enterprises+of+the+civil+authority.%22&source=bl&ot s=CUV7pK2P0X&sig=GfyneCww1NCa_vdpV5Jg_AMO7dI&hl=en&sa=X&ei=hrh2UZCKE4 mpqgG544GoDw&ved=0CFEQ6AEwBg#v=onepage&q=Jefferson%20%22against%20the%20e nterprises%20of%20the%20civil%20authority.%22&f=false
-2-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 3 of 44 PageID #:3
dictates of their private conscience as expressed through the religious dimension of their family’s corporate mission.
3. More specifically, all nine plaintiffs, as the eight individual co-owners and senior managers of their privately owned close corpora tion and as the corporation itself, through which the plaintiffs affirm and embrace a solemn conviction and belief at the h eart of their Christian faith, seek to preserve and to protect the foundati onal ethos of their corporate enterprise, namely that as devout Christians they are in business to serve their customers, their community, their coworkers and their Creator.
4. As detailed herein, the federal statutor y scheme of which Plaintiffs herein complain has its origins in the “Patient Protection and Affordable Care Act,” (Public L. 111-148, March 23, 2010, 124 Stat. 119) amended by the “Health Care and Education Reconciliation Act of 2010” (Public L. 111-152, March 30, 2010, 124 Stat . 1029) (hereafter collectively “ACA”). Pursuant to the ACA, Defendants now are purporti ng to f orce Plaintiffs to put asid e, override, ignore and suppress their conscien tious beliefs about what is ri ght and what is fundam entally, and grievously wrong, and which thus also grossl y disserves the health and welfare of the employees of Ozinga Bros., Inc., including members of the individual plaintiffs’ own families.
5. The ACA regulates the national he alth insurance market by directly regulating “group health plans” and “health insurance issuers.”
6. The ACA does not apply equally to all insurers. 7. The ACA does not apply equally to all individuals. 8. The ACA requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal govern ment approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H).
-3-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 4 of 44 PageID #:4
9. Section 2713 of the Public Health Se rvices Act, enacted through the ACA, through a mandate from the United States Depart ment of Health and H uman Services, purports to require Plaintiffs to “provide coverage for an d [not charge for] with respect to wom en, such additional preventative care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of the U. S. Department of Health and Human Services to determine what would be “preventative care” under the mandate. 42 U.S.C. § 300gg-13(a)(4).
10. Without notice of rulem aking or opport unity for public comment, the United States Department of Health and Human Services, the United St ates Department of Labor and the United States Departm ent of the Treasury adopted the Institute of Medicine (“IOM”) recommendations in full, and promulgated an inte rim final rule, which requires that all “group health plan[s] and. . . health insurance issuer [s] offering group or individual health insurance coverage” provide all F DA approved contracep tive methods and procedures. 76 Fed. Reg. 46621 (published August 3, 2011); 45 C.F.R. § 147.130 (the “Mandate”).
11. The Health Resources and Services Administration, also created under ACA, also issued guidelines adopting the IOM recommendations (http://www.hrsa.gov/womensguidelines).
12. Under these IOM “guidelines,” th e Mandate purports to require all insurance providers to provide not only contraception but al so abortion because certain drugs and devices such as th e “morning after” p ill, “plan B,” a nd “ella” com e within th e Mandate’s and Health Resources and Adm inistration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known and publicly documented abortifacient mechanisms
-4-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 5 of 44 PageID #:5
of action.2 13. The Mandate thus forces em ployers and individuals, as Plaintiffs, to violate their
religious beliefs by requiring em ployers and individuals, as Plainti ffs, to pay for insurance from insurance issuers which fund a nd directly provide for drugs, devices and procedures which violate their deeply held religious beliefs.
14. Since under the Mandate all insurance issu ers must provide what the United States Department of Health and Human Services defines as “pre ventative care,” employers and individuals are deprived of any right to choose insurance issuer s or insurance plans to avoid violating their religious beliefs.
15. The result of these undertakings by the United States Department of Health and Human Services is to force religious e mployers and individuals, who believe that funding and providing for abortion and abortifacients is wrong, and to participate in acts that violate their consciences, or to be forced out of the health insurance market altog ether in orde r to ac t in accord with their religious beliefs.
16. Plaintiffs seek a prelim inary injunction and perm anent injunction, enjoining Defendants from implementing and enforcing provi sions of the regulations prom ulgated under the ACA, specifically the Mandate, on the grounds, among others, that the Mandate violates their Free Exercise, Free Speech and Due Process Rig hts under the Bill of Rights of the United States Constitution, under the Religious Freedom Restoration Act, and under the Adm inistrative Procedure Act.
17. Plaintiffs also seek a declaratory judgment that the regulations promulgated under
2 Regarding the abortifacient effect of these contraceptives, see e.g.: http://www.ella-rx.com/; http://planbonestep.com/faqs.aspx?MTD=2&CPN=2&utm_source=bing&utm_medium=cpc&utm_term= what's%20plan%20b&utm_campaign=Branded; http://www.drugs.com/mtm/preven-ec.html.
-5-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 6 of 44 PageID #:6
the ACA, specifically the Mandate, on the grounds that the Mandate violates their Free Exercise, Free Speech and Due Pr ocess Rights under the Bill of Rights of the United States Constitu tion, under the Religious Freedom Restoration Act, and under the Administrative Procedure Act.
18. The ACA’s abortion an d abortifacient co ntraception Mandate vi olates the rights of Plaintiff Ozinga Bros ., Inc., and its individual owners and senior managers plaintiffs Martin Ozinga III, Martin Ozinga IV, Karl Ozinga, Justin Ozinga, Aaron Ozinga, Paul Ozinga, Timothy Ozinga and Jeffrey Ozinga.
19. Plaintiffs, Martin Ozinga III, Ma rtin Ozinga IV, Karl Ozinga, Justin Ozinga , Aaron Ozinga, Paul Ozinga, Tim othy Ozinga and Jeffrey Ozinga are faithful adherents of the Christian faith. As such, each believe s that th e inherent dignity, an d indeed th e inviolable sanctity, of each and every human being rests ultimately on the immutable truth that each person has been created in the image and likeness of God, before whom they stand as equals, endowed with inalienable rights.
20. Consequently, each als o believes that th e life of every hum an being m ust be protected, cherished, and fostered from the moment of his or he r conception until natural death. That the federal government would now coerce Plaintiffs to flout their most profoundly personal and fundamental religious beliefs flies in the face of repeated declar ations of the Founding Fathers and also runs wholly counter to the thrust of our modern Supreme Court jurisprudence to the effect that, “If there is any f ixed star in our constitutional constellation, it is tha t no official, high or petty, can prescribe what s hall be orth odox in politics, nation alism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein [and] if there are any circumstances which permit an exception, they do not now occur to us.” West Virginia Bd. of Education v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added).
-6-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 7 of 44 PageID #:7
21. By reason of their religious conviction Plaintiffs sincerely believe that they cannot facilitate access to, subsidize, or materially cooperate with the p rovision of the offensive procedures and drugs describ ed herein without br eaching their solemn and sacred obligations to God, betraying their professed relig ious faith, and disserving the be st interests of – as well a s risking serious physical and/or spiritual injury to – their fellow human beings.
22. The individual plaintiffs ow n, manage and control the co rporate plaintiff, Ozinga Bros., Inc., a privately held Illinois corporation (hereafter “Ozinga Bros.”). Unless the context indicates otherwise, “Plaintiffs” hereafter refers collectively to the O zinga family members named, and Ozinga Bros.
23. Plaintiffs believe that their r eligious faith, which shapes and deter mines their understanding of the importance a nd meaning of their lives, m ust inform all of their actions, including their actions as director s, officers, managers and owners of Ozinga Bros., in order for them to live fully integrated lives which provide for Christian witness to those around them.
24. By this action Plaintiffs seek only to be allowed to con tinue to cond uct their business, as they have since the company was fi rst wholly owned and c ontrolled by the Ozinga family, some 85 years ago, in a manner that does not violate the principles of their religious faith relating to the sanctity of human life, and the inherent dignity of the individual person.
25. To the end of continuing to freely exercise their religious faith and free speech and associational rights in this way, as have th ree previous generations of the Ozinga fa mily, Plaintiffs have f iled this lawsuit, se eking judicial review of the Defend ants’ violations of the constitutional and statutory pr ovisions described below and in connection with the Defendants’ promulgation and implementation of the above complained of regulations under the ACA.
26. By purporting to force Plaintiffs to pr ovide their employees, including members
-7-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 8 of 44 PageID #:8
of their own fam ilies, with acce ss to drugs and procedures to which they object by reason of their sincerely held re ligious convictions, these federal regulations operate together to violate their legal rights, including the fundamental rights to the free ex ercise of religion, free speech and association guaranteed by the C onstitution of the United States of America, as well as their rights under the other federal statutes herein relied upon.
Jurisdiction and Venue 27. This court has subject m atter jurisdiction pursuant to 28 U.S.C. §§1331, 1346, 1361, and 1367, as this action is one in which the United States is a defendant, and also one which arises under the Constitution and laws of the United States. This Court has ju risdiction to render declaratory and injunctive relief under 28 U.S.C. §§2201, 2202 and 42 U.S.C. §2000bb-1. 28. Plaintiffs’ claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 42 U.S.C §2000bb-1, and pursuant to the general legal and equitable powers of this Court. 29. Venue is appropriate in this district pur suant to 28 U.S.C. §1391(e) (1), as seven of the eight individual pl aintiffs reside and are located with in this District, and Ozinga Bros. has its principal place of business in the District. 30. Plaintiff Martin Ozinga III resides in th e Northern District of Illino is, in W ill County, Illinois, and is a director and the Chairman of Ozinga Bros. 31. Plaintiff Martin Ozing a IV resides in the Northern District of Illinois, in Cook County, Illinois, and is a director and the President of Ozinga Bros. 32. Plaintiff Karl Ozinga resides in Orange County, Calif ornia and is a director and a Vice President of Ozinga Bros.
-8-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 9 of 44 PageID #:9
33. Plaintiff Justin Ozinga resides in the Northe rn District of Illinois, in Will County, Illinois, and is a director and a Vice President of Ozinga Bros.
34. Plaintiff Aaron Ozinga reside s in the Northern District of Illinois, in DuPage County, Illinois, and is a director and a Vice President of Ozinga Bros.
35. Plaintiff Paul Ozinga resides in the Nort hern District of Illinois, in Cook County, Illinois and is a director and Vice-President of Ozinga Bros.
36. Plaintiff Timothy Ozin ga resides in the Nor thern District of Illinois, in W ill County, Illinois and as a director and a Vice President of Ozinga Bros.
37. Plaintiff Jeffrey Ozinga res ides in the No rthern District of Illino is, in Cook County, Illinois and is a director and a Vice President of Ozinga Bros.
38. Martin Ozinga III, Martin Ozinga IV, Karl Ozinga, Justin Ozinga, Aaron Ozinga, Paul Ozinga, Timothy Ozinga, and Jeffrey Ozinga own and control plaintiff, Ozinga Bros., Inc . an Illinois for-profit corporation with its headquarters and principal place of business at Mokena, Illinois also within the Northern District of Illinois.
39. Martin Ozinga III, Martin Ozinga IV, Karl Ozinga, Justin Ozinga, Aaron Ozinga, Paul Ozinga, Timothy Ozinga, and Jeffrey Ozi nga control all policies governing the conduct of all phases of business at Ozinga Bros. related to insurance coverage for the company’s non-union employees.
40. Ozinga Bros. is a closely held or “clos e” Illinois corporation, as that term is defined under Illinois law.
41. Ozinga Bros. is registered at 19001 Old LaGrange Rd., Mokena, Illinois. 42. Ozinga Bros. is treated as a Subchapter S corporation for income tax purposes. 43. Defendant United States Departm ent of Health and Human Services (“HHS”), is
-9-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 10 of 44 PageID #:10
an agency of the United States, and is responsible for administration and enforcement of the Mandate.
44. Defendant Kathleen S ebelius is Secretary of HHS, and is na med as a party defendant in her official capacity.
45. Defendant United States Departm ent of the Treasury is an agency of the United States, and is responsible for administration and enforcement of the Mandate.
46. Defendant Jacob J. Lew is Secretary of th e Treasury, and is nam ed as a party in his official capacity.
47. Defendant United States Department of Labor (“DOL”) is an agen cy of the United States, and is responsible for administration and enforcement of the Mandate.
48. Defendant Seth D. Harris, Deputy Secretary of Labor, is acting secretary of the U. S. Department of Labor and is named as a party in his official capacity.
Factual Allegations 49. Established some 85 ago, since virtually its creation plaintiff Ozinga Bros. has been and still is a fam ily-owned company currently headquartered in Moke na, Illinois. Ozinga Bros. maintains some 35 plants and facilities in Illinois, Indiana a nd Michigan, and em ploys about 675 persons, m ostly in Illinois. Ozinga Br os. is one of the largest privately owned ready mix concrete companies in the United States. 50. Ozinga Bros. em ploys over 50 full-tim e employees or full tim e employee equivalents as defined under the ACA. 51. The ACA purports not to apply to th e failure to offer e mployer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. (26 U.S.C. § 4980H (c)(2)(A)).
-10-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 11 of 44 PageID #:11
52. However, even employers with fewer than 50 employees purchase insurance from health insurers, who are subject to the ACA. 42 U.S.C. § 300gg-13 (a)(1), (4)).
53. Ozinga Bros. constitutes a “single em ployer” as defined under the ACA (42 U.S.C. § 18024(b)(4)(A)).
54. Plaintiffs must pr ovide federal governm ent approved health insurance under the ACA, or pay substantial per-employee fines.
55. Some 540 of Ozinga Bros.’s em ployees are unionized, and receive their health insurance through and as a result of their collective bargaining agreements.
56. Ozinga Bros. provides health insuran ce directly to its approxim ately 210 nonunionized employees, mostly administrative personnel.
57. Ozinga Bros. currently provides group health insurance to its non-unionized employees through BlueCross/BlueShield of Illi nois. Ozinga Bros.’s plan year comm ences annually, on the first of May.
58. Ozinga Bros. was founded in 1928 as a co al yard. The O zinga family became sole owners of the company in 1929.
59. Individual plaintiffs, the current ow ners and managers of Ozinga Bros. represent the third and fourth generation of Ozinga fam ily ownership. Martin Ozinga III, Ma rtin Ozinga IV, Karl Ozinga, Justin Ozinga, Aaron Ozinga, Paul Ozinga, Timothy Ozinga and Jeffrey Ozinga all are devout Christians.
60. Martin Ozinga III is a member of a non-denominational Christian church, located in Homer Glen Illinois.
61. Martin Ozinga IV is a mem ber of a non- denominational Christian church located in Chicago, Illinois.
-11-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 12 of 44 PageID #:12
62. Paul Ozinga and Jeffrey Ozinga bot h are mem bers of a non-denom inational Christian church located in Chicago, Illinois.
63. Justin Ozinga and Tim Ozinga bot h are mem bers of a non-denom inational Christian church located in Orland Park, Illinois.
64. Aaron Ozinga is a member of a church located in Elmhurst, Illinois affiliated with the Christian Reformed Church denomination.
65. Karl Ozinga is a m ember of a non-denom inational Christian church located in Costa Mesa, California.
66. Plaintiffs conduct Ozinga Bros. with the utm ost integrity and in com pliance with the teachings, mission and values of their Christian faith, as set forth in Scripture.
67. Plaintiffs’ values and religious beliefs are those reflected in the teach ings of their Christian faith.
68. Pursuant to and consistent with their Ch ristian values and their religious beliefs, Plaintiffs are Pro-Life.
69. Plaintiffs consider the pr oviding of e mployee health insurance an integral component of furthering their personal corporate mission, by treating their employees well.
70. In addition, plaintiffs reasonably believe that providing some level of benefits is a practical business necessity, and th at the failure to do so would doom to inevitable failure Plaintiffs efforts to attract and retain quality employees which, in turn, would cripple and destroy their entire family owned business.
71. The foundation of Plaintiffs’ Christian valu es and religious beliefs is Scripture, their belief that Scripture alone is G od's word to all m ankind, and that its hum an authors under the guidance of the Holy Spir it wrote Scripture as the suprem e source of truth f or Christian
-12-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 13 of 44 PageID #:13
beliefs and living. See: Mathew 28:18-20 (“Then Jesus came to them and said, “All authority in heaven and on earth has been given to me. Therefore go and m ake disciples of all nations, baptizing them in the nam e of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you.”).
72. As a result of this Scriptural commission, Plaintiffs believe that their obligation to live their faith openly and directly in everything that they do, includes how they manage and operate Ozinga Bros., and how they tre at Ozinga’s employees, customers, and other “stakeholders.” As one exam ple of this, Plaintiffs routinely open and close business m eetings at Ozinga Bros. with public prayer.
73. Reflective of their sin cerely held religious beliefs and the importance of those beliefs to how they conduct Ozinga Bros. busine ss, the company’s web site also m akes direct and unequivocal references to th e importance of Plaintiffs’ fait h in their everyd ay business activities. See: http://www.ozinga.com/about/, at “Documentary.” (Martin Ozinga III: “We honor God by all that we do, and treat others the way we want to be treated.” (s peaking of the basis of the company’s success); Martin Ozinga IV: Keepi ng an “ear to God’s leading” is the k ey to Ozinga’s continued success in the future.). See also: http://bit.ly/Ozinga-HereToStay. (Jim Ozinga: “We’re here to serve God and the cr own of his creation, m an;” Paul Ozinga: “This business is to honor and glorify God.”)
74. Plaintiffs also sincerely believe that their religious faith obligates tithing. See: Deuteronomy 14:22 (“Be sure to set aside a tenth of all that your fields produce each year.”). See also: Genesis 14:20 (“T he Abraham gave him a tent h of everything”); Ge nesis 28: 20-22 (“If God will be with me and will watch over me on this journey I am taking and will give me food to eat and clothes to wear so that I retu rn safely to my father’s household, then the Lo rd will be my
-13-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 14 of 44 PageID #:14
God and this stone that I have set up as a pillar will be God’s house, and of all that you give me I will give you a tenth.”); Luke 11:42 ( “Woe to you Pharisees, because you give God a tenth of your mint, rue and all other kinds of garden herb s, but you neglect justice and the love of God. You should have practiced the latter without leaving the former undone.”)
75. Reflective of their sin cerely held religious beliefs and the importance of those beliefs to h ow they conduct Ozinga Bros., Plain tiffs tithe annually an amount equal to at least 10% of the pre-tax income of the company to charitable works.
76. As a result of this commitment to Scriptural tithing Plaintiffs have provided and continue to provide key significant m aterial support for, and a mong other things, Christian educational institutions located in the Chicagoland area and elsewhere.
77. As a result of this comm itment to Scriptural tithing, Plaintiffs also are providing significant material support to priv ate Christian health car e internationally, including in Af rica (Uganda) and in Europe (Romania), and in the Chicagoland area.
78. The health clinic that Plaintiffs support in Romania, in turn designates a portion of its profits to helping the poor , and has becom e Romania’s “gold standard for health care as well as a model for businesses contending with a corruption-plagued political system.”3
79. Also reflective of their si ncerely held religious belief s, and the im portance of those beliefs to how they c onduct Ozinga Bros., the company also publicly emphasizes the importance of responsible environmental stewardship. As also reflect ed at the Ozinga Bros. site, and as a part of its “Ozinga Green Building” initi ative, Plaintiffs profess publicly that “we ar e passionate about our charge to care for the earth.” See: http://www.ozingagreenbuilding.com/, at tab “Our Philosophy.”
3 http://illinoisreview.typepad.com/illinoisreview/2008/08/ozinga-responds.html.
-14-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 15 of 44 PageID #:15
80. The reference to the “charge to care for the ea rth” referenced in thes e Ozinga Green Building initiative materials is to God’s charge to m an as reflected in Scripture. See: Genesis 1:28 (“God blessed them and said to them, “Be fruitful and increase in number; fill the earth and subdue it. Rule over the fish in the se a and the birds in the sky and over every living creature that m oves on the ground.); 2:15 (“The L ORD God took the man and put him in the Garden of Eden to work it and take care of it.”).
81. To the Plaintiffs, Scripture not only requi res that they live their lives openly, consistently, and correctly as Christians; Script ure also plainly and unequivocally teaches that human life is a sacred gift that comes from God, that God creat es life, that life begins at conception and that we are to “choose life:”
Jeremiah 1: 4-5 (“Before I formed thee in the belly I knew thee; and before thou camest forth out of the womb I sanctified thee, and I ordained thee a prophet unto the nations.”); Psalm 139: 13-15 (“For you created my inmost being; you knit me together in my mother’s womb. I praise you because I am fearfully and wonderfully made; your works are wonderful, I know that full well. My frame was not hidden from you when I was made in the secret place, when I was woven together in the depths of the earth.”); Galatians 1:15 (“But when God, who set me apart before I was born and who called me by his grace, was pleased . . .”); Psalm 22: 10-11 (“From birth I was cast on you; from my mother’s womb you have been my God.”); and Deuteronomy 30:19 (“This day I call the heavens and the earth as witnesses against you that I have set before you life and death, blessings and curses. Now choose life, so that you and your children may live and that you may love the LORD your God, listen to his voice, and hold fast to him. . . “). 82. Plaintiffs therefore believe that by definition abortion, and abortifacient contraception involve the destruc tion of a hum an life, a creation of God, and that as a result all such abortion and abortifacient con traception is wrong and sinful, and th erefore harmful to the spiritual and physical health and well-being of all human beings.
-15-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 16 of 44 PageID #:16
83. Plaintiffs therefore also believe that providing coverage for drugs and procedures that facilitate such wrong and sinful practices constitutes cooperation with such wrong and sinful conduct.
84. Plaintiffs purchase group health insuran ce through insurance is suer Blue Cross/ Blue Shield, of Illinois, and provide this insurance to their employees.
85. Pursuant to their sincerely he ld religious beliefs Plainti ffs strive to provide their employees with employee health coverage equal t o, or superior to, covera ge generally available in the Illinois/Indiana/Michigan market in order that Ozinga Bros. be a competitive employer.
86. Plaintiffs never requested coverage for abortion or a bortifacient contraception, and were under the impression that the policies th at they had did not provide their em ployees with access to these procedures or drugs.
87. As a result of media coverage of objections being raised by privately held closely held family businesses to providing abortion and abortifacient contraceptive coverage to the ir employees beginning in Septem ber 2012, Plaintiffs examined the extent to which the coverage provided at Ozinga Bros., if at all, included such offensive coverage.
88. Upon determining that it had historically provided such offensive coverage, in December 2012 Plaintiffs revised the coverage provided by their health insurance plan to remove abortion and abortifacient contrace ptives from the plan coverage. Blue Cross/B lue Shield of Illinois has deemed that due to the Mandate, Plai ntiffs will not be allo wed to exclude abortio n and abortifacient contraception from Ozinga Bros.’ insurance plan and that Plaintif fs will b e forced to provide and pay for those procedures which violate their religious beliefs.
89. Plaintiffs have been attempting to find, but without success, coverage compliant with the ACA and with their sincerely held religious beliefs.
-16-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 17 of 44 PageID #:17
90. On information and belief, based on the company’s investigation and the investigations of its insurance professionals, there is no such cove rage available nor is there any reasonable likelihood of it becom ing available unde r the ACA, as currently configured and construed.
91. The Mandate com plained of purports to require employers to provide coverage for the full range of FDA approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” 4 The co ntraceptive methods for which coverage must be provided include abortion and abortifacient contraceptives. Id.
92. Plaintiffs cannot provide, f und or participate in health care insurance which covers abortion or abortifacient contraception, or related education and counseling, without violating their deeply held religious beliefs.
93. Plaintiffs cannot provide inform ation or guidance to their em ployees regarding abortion or abortifacient contracep tives, or related educa tion and coun seling, without violating their deeply held religious beliefs.
94. With full knowledge of these aforesaid beliefs, defendants issued the Mandate previously alleged that deliber ately failed to take into any accoun t whatsoever Plaintiffs’ religious beliefs and the analogous beliefs of millions of their fellow citizens.
95. If enforced, the Mandate co erces Plaintiffs to violate their re ligious beliefs by requiring them to provide Ozinga Bros. em ployees, including members of the f amilies of the individual Ozinga plaintiffs themselves, with access to abortifacient contraception, including but without limitation drugs and devices such as the “morning-after pill,” “Plan B,” and “ella,” all of
4 http://www.hrsa.gov/womensguidelines/
-17-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 18 of 44 PageID #:18
which come within the Mandate ’s and HRSA’s definition of “Food and Drug Adm inistrationapproved contraceptive methods” despite their known and admitted abortifacient mechanisms of action.5
96. If enforced, the Mandate not only forces Plaintiffs to violate their religious beliefs as alleged; it also subverts the expression by Plaintiffs of their religious beliefs, and the beliefs of millions of their fellow Americans, by forcing them to fund, prom ote and to ass ist others to acquires procedures and drugs which Plaintiffs believe are wrong and sinful.
97. To justify its “contracep tion mandate,” Defendants argue that without employers like Plaintiffs providing such coverage, Ozinga Bros.’s employees will be without access to such drugs and procedures.
98. Thus the governm ent is, in for m and in substance, insisting that the Plaintiffs directly participate in providing the wrong and sinful drugs and practices herein complained of.
99. That is, as a result of it s Mandate, the government is forcing Plaintiffs to choose: they must either provide their employees with the benefits required by this pernicious legislation, refuse to provide employee benefits at all, or go out of business altogether.
100. Plaintiffs reasonably believe that depriv ing their em ployees of benefits would cripple their business.
101. Plaintiffs have no desire to go out of bus iness and do not believe that they should be forced to choose between violating their si ncerely held religious beliefs by engaging in wrongful and sinful conduct or shutting down their business.
102. The ACA’s Mandate is not generally applicable to all business entities. 103. Defendants’ refusal to accommodate the consciences of the Plaintiffs, and of other
5 Regarding the abortifacient effect of these contraceptives, see note 2, supra..
-18-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 19 of 44 PageID #:19

Americans who share Plaintiffs’ religious views, is highly selective.

104. Numerous exemptions exist in the ACA which appear arbitrary and were granted

to employers who purchase group in surance. This evidences that defendant do not mandate that

all insurance plans need to cover “preventative services” (e.g. the thousands of wai vers from the

ACA issued by Defendants for group insurance based upon the commercial convenience of large

corporations, the age of the insurance plan or the size of the employer, among other things).

105. Despite granting waivers upon a seem ingly arbitrary basis, no exem ption exists

for an em ployer or individual whose religiously formed conscience com pels him or her to

conclude that certain m andated drugs and pro cedures are unethical, immoral and in direct

opposition to their religious beliefs.

106. To date the governm ent has not required every insurance plan in the country to

provide for these procedures. Instead it ha s exempted numerous persons and groups from

compliance with various and sundry parts of th e ACA, often for purposes of commercial or

political convenience (including certain large f ast food franchis e operations; ce rtain “not-for-

profits” public interest organizations; and certain “religious” organizations, narrowly defined) or

has allowed them additional time within which to seek compliance.

107. As a result, Defendants’ plan fails to give the sam

e level of we ight or

accommodation to the exercise of one’s fundamental First Amendment rights that it assigns to

the yearly earnings and profitability of a corporation.

108. To date the government refuses and resists giving any accommodation whatsoever

to families like th e Ozingas, who seek only to continue to opera te their bus iness, as the y

historically have always done, in accordance with their deeply held religious convictions.

109. “Grandfathered” plans are exem pt from the federal Mandate’s preven tative care

-19-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 20 of 44 PageID #:20
requirement. See: 29 CFR Part 2590 (June 17, 2010). As a result of this provision, the mandate is currently not in f orce as to m ore than 190 million individuals whose plans have been “grandfathered” under the provision.6
110. The Plaintiffs’ plan is n ot considered “grandfatherd” and will be sub ject to th e provisions of the Mandate.
111. Certain provisions of the ACA do not appl y equally to m embers of certain kinds of religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) (individual m andate does not apply to members of “recognized religious sects or divisions” that conscientiously objects to acceptance of public o r private insurance fund s); 25 U.S.C. § 5000A(d) (2) (B) (ii) (individual mandates does not apply to m embers of “health care sharing m inistry” that m eets certain criteria).
112. Ozinga Bros. does not qualify for the “rel igious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
113. Since Ozinga Bros. does not qualify as a “religious employer,” Plaintiffs cannot take advantage of the “temporary saf e harbor” as set forth by the Defendants at 77 F ed. Register 8725 (February 15, 2012).
114. The ACA is not neutral because so me groups, both secular and religio us, enjoy exemption from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the ACA, while others-including Plaintiffs--have not.
6 Newland v. Sebelius, 881 F.Supp.2d 1287, 1298, at n. 13 (D. Colo. 2012).
-20-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 21 of 44 PageID #:21
115. The ACA creates a system of individualized exemptions. 116. The United States Departm ent of Health and Hum an Services has the author ity under the ACA to grant com pliance waivers (“HHS waivers”) to em ployers and other health insurance plans. 117. HHS waivers release employers and other plan issuers from complying with the provisions of the ACA. 118. HHS decides whether to grant waivers ba sed on individualized waiver requests from particular employees and other health insurance plan issuers. 119. Upon information and belief, based on public ly reported information, more than a thousand such HHS waivers to date have been granted. 120. Currently, Defendants are considering br oadening the scope of the “religious entity” exemption further, in m yriad ways. 26 CFR Part 54, 29 CFR Part 2590, 45 CFR Parts 147, 148 and 156 (Feb. 6, 2013). 121. As shown by these exemptions, the ACA is creating a sys tem of arbitrary and capricious individualized mandates, rather than an otherwise uniformly and generally applicable governmental mandate, because it allows highl y discretionary and apparently irrational compliance waivers. 122. The mandate is backed by heavy financ ial penalties. Absent co mpliance, Plaintiffs will face ruinous enforcement actions, see 29 U.S. C. §1132 (a); a monetary penalty of $100 a day per em ployee, see 26 U.S. C. §4980D (a)-(b); and an annual tax su rcharge of $2,000 per employee, see id. § 4980H. As potentially applied to Plai ntiffs, these penalties are absolutely unsustainable and do a nd were in tended to c onstitute existential threats to the continued existence of the company.
-21-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 22 of 44 PageID #:22
123. The Ozinga Bros. group health plan is due for renewal on the first of May, 2013. 124. Plaintiffs have been informed and reasonably believe that absent the relief prayed for herein, and upon renewal, Blue Cross/Blue Shield Illinois will have no choice but to includ e in Ozinga Bros.’ plan co verage for abortion and abortifacient contraceptives, contrary to and in violation of Plaintiffs’ sincerely held religious beliefs. 125. The Mandate seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. incl uding Blue Cross/ Blue Sh ield Illinois) 42 U.S.C. § 300gg-13 (a) (1), (4). (“A group h ealth plan and a he alth insurance issuer offering group or individual health insurance coverage shall, at a m inimum provide coverage for and shall no t impose any cost sh aring requirements for evidence-based items or services th at have in effect a rating of ‘A’ or ‘B’ in the curren t recommendations of the United State s Preventative Services Task Force; . . . with respect to wom en, such additional preventative care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”). 126. On July 19, 2010, HHS, along with Defendant s the Department of the Treasury and the Department of Labor, published an interi m final rule under the A ffordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule requi red providers of group health insurance to cover “preventive care” for wom en as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010). 127. On February 15, 2012, the United States Department of Health and Hum an Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedur es, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August
-22-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 23 of 44 PageID #:23

1, 2012 (hereafter, “the Mandate”). See: 45 CFR § 147.130 (a)(1)(iv), as confirm ed at 77 Fed.

Register 8725 (Feb. 15, 2012), adopting and quo

ting Health Resources and Services

Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).

128. The Mandate was enacted pu rsuant to statutory au thority under the Patient

Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as a mended by the

Health Care and Education Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (ACA). 77 Fed.

Reg. 31, 8725 (“Affordable Care Act”).

129. All insurance issuers are m andated to include as “preventative services”

contraception, sterilization, abortion, and abortifacients such as the “m orning after” pill,” “Plan

B,” and “ella” in all of its group and individual plans, not specifically exempted, beginning as of

August 1, 2012 and effective on the anniversary of the employer’s plan year (here May 1, 2013).

130. Individuals and employers, regardless of the number of employees they employ,

will eventually be forced to s elect an insu rance plan which inc ludes what HHS deemed

“preventative care.”

131. All individuals and employees will be stri pped of their choice not to pay for the

“preventative care,” regardless of whether pay ing for such “services” violate s one’s conscience

or deeply held religious beliefs.

132. Health insurance issuers include ins urance companies such as Blue Cross/Blue

Shield of Illinois, which is the insurance issuer used by Plaintiffs.

133. The Mandate reaches ev en further than the ACA to elim inate all employers and

individuals from selecting a health insura nce plan which the insurance issuers do not

automatically provide contraception, and abortion and abortifacient contraception.

134. HHS directed a private health po licy organization, the Institute of Medicine

-23-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 24 of 44 PageID #:24

(“IOM”), to suggest a list of recomm ended guidelines describing which drugs, procedures, and

services should be c overed by all health plans as

preventative care for wom en.

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

135. In developing its guidelines, IOM invite d a select num ber of groups to m ake

presentations on the preventive care that should be mandated by all health plans. These were the

Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John

Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.7

136. No religious groups or other groups th at oppose government-mandated coverage

of contraception, sterilization, abortion, and relate d education and coun seling were am ong the

invited presenters.

137. One year af ter the first interim final rule was published, on July 19, 2011, the

IOM published its recommendations. It recommended th at the preventative services include “All

Food and Drug Administration approved contraceptive methods.” (Institute of Medicine, Clinical

Preventive Services for Women: Closing the Gaps (July 19, 2011)).

138. Preventative services therefore include FDA-approved contraceptive m ethods

such as birth-control pills; prescription contrace ptive devices, including IUDs; Plan B, also

known as the “m orning-after pill”; and ulipristal, also known as “e lla” or the “week-after pill”;

and other drugs, devices, and procedures.

139. Plan B and “ella” can p revent the implantation of a human embryo in the wall of

the uterus and can cause the death of an e mbryo. The use of artificial m eans to prevent the

7 http://www.nap.edu/openbook.php?record_id=13181&PAGE=217.

-24-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 25 of 44 PageID #:25

implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each

constitute an “abortion” as that term is used in federal law and Scriptural teaching. Consequently,

Plan B and “ella” are abortifacients.

140. Thirteen days later, on August 1, 2011, without notice of rulemaking or

opportunity for public comm ent, HHS, the United States Department of Labor, and the United

States Department of Treasury adopted the IO M recommendations in full and promulgated an

interim final rule (“the Mandate”) , which requires that all “group health plan[s] and . . . health

insurance issuer[s] offer ing group or individual health insurance coverage” provide all FDA-

approved contraceptive methods and procedures. 76 Fed. R eg. 46621 (published Aug. 3, 2011);

45 C.F.R. § 147.130. Health Resources and Services Adm inistration issued guidelines adopting

the IOM recommendations. (http://www.hrsa.gov/womensguidelines).

141. The Mandate also req uires group health care plans and insurance issuers to

provide education and counseling for all women beneficiaries with reproductive capacity.

142. The Mandate went into effect immediately as an “interim final rule.”

143. HHS did not take into account the concer ns of religious or ganizations in the

comments submitted before the Mandate was issued.

144. Instead the Mandate was unresponsive to th e concerns stated in the comm ents

submitted by religious organizations.

145. When it issued the Mandate, HHS requested comments from

the public by

September 30, 2011 and indicated that comments would be available online.

146. Upon information and belief, over 100,000 comments were subm itted against the

Mandate.

147. The Mandate fails to take into account the statutory and constitutional conscience

-25-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 26 of 44 PageID #:26
rights of religious business owners and for profit companies that exercise business practices in compliance with certain faith practices, such as Plaintiffs’ company Ozinga Bros.
148. The Mandate requires that Plaintiffs assist, provide, or fund coverage for abortion, abortifacient contraception, and related educatio n and coun seling against its conscience in a manner that is contrary to law.
149. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
150. The Mandate exposes Plaintiffs as indi viduals and as em ployers or companies with over 50 full-tim e employees, to substantial fi nes for refusal to change or violate their religious beliefs.
151. The Mandate im poses a burden on Plainti ffs’ employee recruitm ent efforts by creating uncertainty as to whether P laintiffs will be able to offer h ealth insurance beyond the beginning of their next plan year on May 1, 2013.
152. The Mandate place s Plaintiffs at a com petitive disadvantage in the ir efforts to recruit and retain employees and members.
153. The Mandate forces Plaintiffs to pr ovide, fund, or approve and assist its employees and m embers in purchasing abortif acient drugs in violation of Plaintif fs’ religious beliefs that doing so is gravely im moral and, in cer tain cases, equivalent to assisting another to destroy innocent human life.
154. Plaintiffs have a sincere religious object ion to providing coverage for em ergency contraceptive drugs such as Plan B and “ella” since they b elieve those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
-26-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 27 of 44 PageID #:27
155. Plaintiffs consider the p revention by artificial means of the im plantation of a human embryo to be an abortion.
156. Plaintiffs believe that Plan B and “ell a” can cause the death of the em bryo, which is a person.
157. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 158. “Ella” can prevent the implantation of a human embryo in the wall of the uterus. 159. Plan B and “ella” can cause the death of the embryo. 160. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 161. The use of artificial m eans to cause th e death of a hum an embryo constitutes an “abortion” as that term is used in federal law. 162. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and “ella, ” free of charge, regard less of the ab ility of insured persons to obtain these drugs from other sources. 163. The Mandate forces Plaintiffs to f und education and counseling concerning abortion and abortifacient con traception that d irectly conflicts with Pla intiffs’ religious beliefs and teachings. 164. Plaintiffs could not cease in providi ng its employees with hea lth insurance coverage without violating their religious duty to provide for th e health and well-being of its employees and their f amilies. Additionally, employees would be unable to a ttain similar coverage in the market as it now exists. 165. The Mandate forces Plaintiffs to cho ose between violating their religious beliefs, incurring substantial fines, or terminating their employee or indivi dual health insurance
-27-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 28 of 44 PageID #:28
coverage. 166. Providing counseling and education about contraceptives, sterilization, and
abortion directly undermines and subverts the explicit messages and speech of Plaintiffs. 167. Group health plans and insurance issuers ha ve been subject to the Mandate as of
August 1, 2012. 168. Plaintiffs plan year begins on May 1, 2013—and will be subject to the Mandate as
of that date without Court intervention. 169. Plaintiffs have already had to devote significant instit utional resources, including
both staff tim e and funds, to determ ine how t o respond to the Mandate. Plaintiffs anticipate continuing to m ake such expenditures of tim e and money up until and after the tim e that the Mandate goes into effect for the Plaintiffs’ plan.
170. The Mandate indicates that th e Health Resources and Services Adm inistration (“HRSA”) “may” grant religious exem ptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
171. The Mandate allows HRSA to grant exem ptions for “religious em ployers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization prim arily employs persons who share the religious tenets of the organization. (3) The organizatio n serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in § 6033(a)(1) and § 6033(a) (3) (A) (i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a) (iv) (B).
172. The Mandate imposes no constraint on HRSA ’s discretion to grant exemptions to some, all, or none of the o rganizations meeting the Mandate’s definition of “religious
-28-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 29 of 44 PageID #:29
employers.” 173. HHS stated that it based the exem ption on comm ents on the 2010 interim final
rule. 76 Fed. Reg. 46621. 174. There is no exemption for a for-profit company. 175. Plaintiffs reasonably ex pect, as con firmed by t heir respective insuran ce issuers,
that they will be subjec t to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to Plaintiffs.
176. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exem ption. She a dded that “[n]onprofit em ployers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension.
177. At the sam e time, however, Sebelius a nnounced that HHS “intend[s] to require employers that do not offer coverage of contrace ptive services to provide notice to employees, which will also state that contraceptive services are available at sites su ch as community health centers, public clinics, and hospitals with incom e-based support.” See Statement by U.S. Department of Health and Hum an Services S ecretary Kathleen Sebelius. 8 To date, Defendant HHS has not released any official rule im plementing either the one-year exten sion or the additional forced-speech requirement that applies to either Plaintiff.
178. It is inevitable with the current state of the law that Plaintiffs will have to comply with the M andate, despite the f act that Pla intiffs will violate th e teachings of their religious beliefs and the teaching s of their Christian fa ith by directly providing, funding, and/or allowing its members to engage in dissem inating information and guidance about where to obtain
8 http://www.hhs.gov/news/press/2012pres/01/20120120a.html
-29-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 30 of 44 PageID #:30
abortion, or abortifacient contraceptives 179. Plaintiffs wish to renew coverage for their employees by purchasing an employee
group insurance policy that excludes coverage for drugs and proce dures to which they object as gravely wrong and sinful by reason of their sincerely held religious beliefs.
180. Plaintiffs cannot provide benefits to their employees, consistent with their religious convictions, because the Mandate co mplained of requires th at plaintiffs provide their employees with access to drugs and procedures that plaintiffs believe to be wrong and sinful.
181. Consequently, the Man date at issu e force plaintiffs to provide their employees with coverage of those procedures that plaintiffs consider wrong and sinful.
182. If subject to the Mand ate, Plaintiffs are confronted with a vicious H obson’s choice: either comply with the Ma ndate’s requirements in violation of thei r religious beliefs, or pay ruinous fines that would have a crippling impact on their business and force them to shut down.
183. The Mandate challenged here does not advance a compelling government interest. 184. The Mandate challenged here are neither narrowly tailored nor the least restrictive means available to advance any interests that the government may assert. 185. The Mandates challenged here can be adva nced by other means that are far m ore narrowly tailored and do not burden plaintiffs by requiring them to engage in conduct contrary to their religious convictions. 186. Failure to comply with the Mandate subjects an employer to liability for fines. 187. Failure to comply with the Mandate subjects an employer to liability for penalties. 188. The federal Mandate has the force of law. 189. No monetary damages could adequately compensate plaintiffs for depriving the m
-30-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 31 of 44 PageID #:31
of their Firs t Amendment Constitutional r ights of Free Exercise and Free Speech, and to Du e Process as a result of their bei ng compelled to engage in conduct contrary to their religious and moral beliefs as traditionally has informed and guided their corporate practices. Thus an award of injunctive relief is necessary to avert and pr event plaintiffs from suffering immediate, grave, and ongoing illegal and irreparable harm.
190. Absent declaratory and injunctive relief, plaintiffs will continue to suffer harm by reason of the federal and state m andates that fo rce the plaintiffs to engage in conduct they believe to be gravely wrong and sinful by provi ding their employees with access to drugs and benefits to which the plaintiffs object by reason of their sincerely held religious convictions.
191. Plaintiffs have filed suit because they do not wish to com ply with this immoral mandate, which they believe to be illegal and unconstitutional, and must seek relief to escape the dilemma in which they find themselves.
CLAIMS FOR RELIEF Count I
Violation of the Federal Religious Freedom Restoration Act (“RFRA”) 192. Plaintiffs incorporate by reference all of the preceding paragraphs. 193. Plaintiffs’ sincerely held religious be liefs prohibit them from providing or purchasing coverage for aborti on or abortifacient contracep tion, or related education or counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 194. The Mandate creates governm ent imposed coercive pressure on P laintiffs to change or violate their religious beliefs. 195. The Mandate chills Plaintiffs’ religious exercise. 196. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it
-31-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 32 of 44 PageID #:32
will no longer be permitted to offer or purchase health insurance. 197. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 198. The Mandate furthers no compelling government interest. 199. The Mandate is not narrowly tailored to any compelling government interest, 200. The Mandate is not the least restrictiv e means of advancing the governm ental
interest. 201. The Mandate and the D efendants’ threatened enforcement of same violate rights
secured to the plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb, et seq. 202. Absent declaratory and injunctive relief, the plaintiffs will be gr eatly, illegally,
and irreparably harmed.
Count II Violation of First Amendment to the U.S. Constitution:
Free Exercise Clause 203. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 204. Plaintiffs’ sincerely held religious belie fs prohibit them from providing coverage for contraception that is or potentially could be achieved by abortion, or related education or counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 205. Neither the ACA nor the Mandate is neutra l or generally applicable inasmuch as they are honeycombed with exceptions and waivers. 206. Thus while the Mand ate’s applicability to plaintiffs entails a seve re curtailment and suppression of the plaintiffs’ rights to free and robust exercise of their religious faith, those organizations that f all within th e federal exceptions or are granted waivers suf fer no such curtailment or suppression of their rights.
-32-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 33 of 44 PageID #:33
207. Defendants have created, a nd continue to create ca tegorical exemptions and individual exemptions to the Mandate.
208. The Mandate furthers no compelling government interest. 209. The Mandate is not the least restrictive means of furthering the Defendants’ stated interests. 210. The Mandate creates governm ent imposed coercive pressure on P laintiffs to change or to violate their religious beliefs. 211. The Mandate chills Plaintiffs’ religious exercise. 212. The Mandate exposes Plaintiffs to substantial fines for their religious exercise 213. The Mandate is not narrowly tailored to any compelling governmental interest. 214. The Mandate and Defendants’ threatened enforcement of the Mandate viola te Plaintiffs’ rights secu red by the Free Exercise Clause of the First A mendment to the Unite d States. 215. The ACA and its im plementing regulations require an intrusiv e inquiry into whether entities are “religious” enough to qualify for an exemption and defines religious practice in a limited sense that d eprives citizens of their right to lead their lives in acco rdance with their religious convictions by purporting to dictate w hen, and under what circum stances, citizens can conduct their affairs consistent with their faith. 216. The Mandate discriminates among religious believers by providing exemptions to some but not others based on the governm ent’s unduly narrow and crabbe d concept of what it means to pr actice religion, contrary to the Free Exercise Clause of the First Am endment, and also based on the governm ent’s manifest preference for certain religious denom inations, and the tenets they embrace, and its disfavo r of other denominations, in violation of the Establishm ent
-33-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 34 of 44 PageID #:34
Clause of the First Amendment. 217. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been
and will be greatly, illegally and irreparably harmed.
Count III Violation of First Amendment to the U.S. Constitution:
Free Exercise 218. Plaintiffs incorporate by reference all preceding paragraphs. 219. By design, Defendants im posed the Mandate on some religious organizations or religious individuals but not on oth ers, resulting in discrimination among religions and religious beliefs. 220. The Mandate vests HRSA with unbridled di scretion in deciding whether to allow exemptions to some, all, or no organization meeting the definition of “religious employers.” 221. The Mandate vests HRSA with unbridled di scretion in deciding whether to allow exemptions to some, all, or no organization meeting the definition of religious individuals. 222. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercis e clause of the First Am endment of the Constitution of the United States. 223. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will be greatly, illegally and irreparably harmed.
Count IV Violation of the First Amendment to the United States Constitution:
Establishment 224. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint.
-34-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 35 of 44 PageID #:35
225. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs.
226. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs.
227. The Mandate vests HRSA with unbridled di scretion in deciding whether to allow exemptions to some, all or no organizations meeting the definition of “religious employers.”
228. The Mandate also vests HRSA with unbrid led discretion in deciding whether to allow exemptions to some, all or no individuals.
229. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment to the Constitution of the United States.
230. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will be greatly, illegally and irreparably harmed.
Count V Violation of the First Amendment to the United States Constitution:
Free Speech 231. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 232. Plaintiffs profess, educate, lecture and engage in outreach amongst the community that abortion and abortifacients are violations of their religious beliefs. 233. The Mandate would com pel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion and abortifacients. 234. Defendants’ actions thus violate Plaintiffs’ right to be free from compelled speech as secured to them by the First Amendment of the Constitution of the United States.
-35-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 36 of 44 PageID #:36
235. The Mandate’s compelled speech requirement is not n arrowly tailored to a compelling government interest.
236. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will be greatly, illegally and irreparably harmed.
Count VI Violation of the First Amendment of the United States Constitution:
Expressive Association 237. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 238. Plaintiffs profess, educate, lecture and engage in outreach amongst the community that abortion and abortifacients are violations of their religious beliefs. 239. The Mandate would com pel Plaintiffs to subsidize activities that Plaintif fs profess, educate, and engage in outreach in the community are violations of Plaintiffs’ re ligious beliefs. 240. The Mandate would com pel Plaintiffs to fund and to provide education and counseling related abortion and abortifacients. 241. Defendants’ actions thus vi olate Plaintiffs’ right of expressive association as secured to them by the First Amendment of the Constitution of the united States. 242. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will be greatly, illegally and irreparably harmed.
Count VII Violation of the First Amendment of the United States Constitution:
Free Exercise and Freedom of Speech 243. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 244. By stating that the HRSA “ may” grant an exemption to certain religious groups,
-36-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 37 of 44 PageID #:37
the Mandate vests HRSA with unbridled discreti on over which organizations or individuals can have their First Amendment interests accommodated.
245. The Mandate fails to address the constitutional and statutory implications of the Mandate on for-profit employers such as Plainti ffs and Ozinga Bros., Inc., such that and as a result Plaintiffs are sub ject to the u nbridled discretion of the HRSA to determ ine whether such companies would be exempt or are wholly left without relief from the Mandate
246. Defendants’ actions violate Plaintiffs right not to be subject to a s ystem of unbridled discretion when engaging in speech or when engaging in religio us exercise, as secured to them by the First Amendment of the Constitution of the United States.
247. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will be greatly, illegally and irreparably harmed.
Count VIII Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706 248. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 249. The Mandate/Final Rule is contrary to section 1303(b)(1)(A) of Patient Protection and Affordable Care Act (“PPACA”), Pub. L. 111-148 § 1303, 124 Stat. 119, 168 (to be codified at 42 U.S.C. §18023(b)(1)(A)), which provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide coverage of [abortion] procedures . . . a s part of its essential health benefits for any plan year.” 250. The federal Mandate requires provision of abortifacients, drugs that will result in abortions, contrary to this statutory section. 251. The Mandate/Final Rule is thus contrary to existing law, and therefore it should be judicially reviewed and declared void, pur suant to the 5 U.S.C. §706(2), as arbitrary,
-37-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 38 of 44 PageID #:38
capricious, an abuse of discretion, and not in accordance with law, and in excess of statutory jurisdiction, authority, limitations, or short of statutory right.
252. The Mandate/Final Rule should also be st ruck down as having been promulgated without observance of procedure required by law, nam ely, 5 U.S. C. §553, in that no notice or comment period was provided before the federa l defendants prom ulgated said Mandate/F inal Rule, as legally required. Defendants disreg arded and dispensed with these procedural protections requiring notice and comment on the part of intere sted parties without legally sufficient cause.
253. Defendants’ stated reasons that public comments were unnecessa ry, impractical and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
254. Without proper notice and opportunity for public comm ent, Defendants were unable to take into any account, much less full account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.”
255. Defendant did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
256. Defendants in effect delegated their ru le making authority to a non-governm ental organization so as to circumvent the APA and in violation of the Act.
257. Defendants acted in an arbitrary an d capricious manner, furthermore, when they ignored comments indicating that abortion and abortifacient contraceptives, as well as counseling and education for these procedures, could not reasonably be viewed as preventative care.
258. For these reasons am ong others, Defendant s have taken agency action not in observance with procedures required by law, a nd the Defendants’ actions should be set aside, pursuant to 5 U.S.C. §706(2).
-38-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 39 of 44 PageID #:39
259. Absent injunctive and declaratory relief against the Mandate/Final Rule, plaintiffs have been and will continue to be greatly, irreparably and illegally harmed.
Count IX Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706 260. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 261. In promulgating the Mandate, defendants failed to consider the constitutional and statutory implications of the Ma ndate on Plaintiffs and sim ilarly situated organizations, companies and individuals. 262. Defendants’ explanations for its decision not to exem pt Plaintiffs and sim ilar companies and relig ious individuals runs co unter to th e evidence submitted by religio us organizations during the comment period. 263. Defendants’ issuance of the interim final rules was arbitrary and capricious within the meaning of 5 U.S.C. §706 (2) (A) because the ru les fail to consid er the full ex tent of th e implications and they do not take into consideration the evidence against them. 264. Absent injunctive and declaratory relief against the Mandate/Final Rule, plaintiffs have been and will continue to be greatly, irreparably and illegally harmed.
Count X Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706 265. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 266. The Mandate is contrary to the Weldon Amendment of the Consolidated Security, Disaster Assistance, and C ontinuing Appropriations Act of 2009, public Law 110 329, Div. A., Sec. 101, 122 Stats. 3574, 3575 (September 30, 2008). 267. The Weldon Amendment provides that “[n]one of the funds made available in this
-39-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 40 of 44 PageID #:40
Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Hum an Services] m ay be made available to a Federal agen cy or program . . . if such agency, prog ram, or governm ent subjects any in stitutional or individual health care entity to discrimination on the bas is that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
268. The Mandate requires issuers, employers, and individuals, incl uding Plaintiffs, to provide and purchase coverage for al Federal Drug Administration-approved contraceptives.
269. Some FDA-approved contraceptives cause abortions. 270. As set forth above, the Mandate violates RFRA and the First Amendment. 271. Under 5 U.S.C. 706 (2) (A), the Mandate is contrary to existi ng law, and is in violation of the Administrative Procedure Act. 272. Absent injunctive and declaratory relief against the Mandate/Final Rule, plaintiffs have been and will continue to be greatly, irreparably and illegally harmed.
Count XII Violation of the Administrative Procedure Act, 5 U.S.C. §§ 553, 706
273. Plaintiffs incorporate by reference the preceding paragraphs of this Complaint. 274. The Mandate is contrary to the provisions of the Affordable Care Act. 275. Section 1303 (a) (1) (A) (i) of the ACA states that “nothing in this title”—Title I of the Act, including pr ovisions dealing with “preventative services”—“shall be construed to require a qualified health plan to provide covera ge of [abortion] services. . . as part of its essential health benefits for any plan year.” 276. Section 1303 further states that it is the “issue r” of a plan that “sha ll determine whether or not the plan provides coverage” of abortion procedures.
-40-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 41 of 44 PageID #:41
277. Under the ACA, Defe ndants do not have authority to decide whether a plan covers abortion; only the issuer does.
278. However, the Mandate requires all issuers, including Plainti ffs and Pl aintiffs insurance issuer Blue Cross/Blue Shield of Illinois to provide coverage of all Federal Drug Administration-approved contraceptives.
279. Some FDA approved contraceptives cause abortions. 280. Under 5 U.S. C. § 706 (2) (A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 281. Absent injunctive and declaratory relief against the Mandate/Final Rule, plaintiffs have been and will continue to be greatly, irreparably and illegally harmed.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully pray that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violate and infringe upon the Plaintiffs’ First Amendment rights under the Constitution of the United States; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act; c. Declare that the Mandate was issued in violation of the Administrative P rocedure Act.; d. Issue both a pre liminary and a permanent injunction prohibiting and e njoining Defendants from enforcing the Mandate against Plaintiffs and other religious individuals, employees, and companies that object to funding and providing insurance coverage for abortion and abortifacients, and related education and counseling; and
-41-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 42 of 44 PageID #:42
e. Award plaintiffs the costs of this action, reasonable attorneys fees, and such other relief as the Court deems just and proper.
Submitted this May 1, 2013. s/ Thomas Brejcha s/ Peter Breen Attorneys for Plaintiffs Of Counsel: Thomas Brejcha Peter Breen THOMAS MORE SOCIETY 29 South LaSalle St. – Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Fax 312-782-1887 Sam Casey Managing Director & General Counsel JUBILEE CAMPAIGN USA – LAW OF LIFE PROJECT 9689-C Main Street Fairfax, VA 22031 USA Tel. 202-587-5652 or 703-503-0791 Kevin Edward White KEVIN EDWARD WHITE & ASSOCIATES 77 West Wacker Drive, Suite 4800 Chicago, IL 60601-2010 Tel. 312-606-8602 Fax: 312-606-8603
-42-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 43 of 44 PageID #:43

CERTIFICATE OF SERVICE
The undersigned, one of plaintiffs’ counsel , hereby certify that on this May 1, 2013, a true and correct copy of the fo regoing was ca used to be f iled electronically with this Court through the CM/ECF filing system and that I mailed a co py of the foregoing co mplaint by placing same in a sealed envel ope, together with the requisite waiver form s, and properly addressing same to the following persons, affixing proper first class postage prepaid thereto, and depositing same in the U.S. mail chute at 29 South LaSalle St., Suite 440, Chicago, IL 60603:

Civil Process Clerk UNITED STATES ATTORNEY'S OFFICE Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604
Eric H. Holder, Jr. U.S. Attorney General U. S. DEPARTMENT OF JUSTICE 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. DEPARTMENT OF HEALTH & HUMAN SERVICES 200 Independence Avenue, SW Washington, DC 20201
Seth D. Harris, Deputy Secretary of Labor, in his official capacity as Acting Secretary of the U.S. Department of Labor U.S. DEPARTMENT OF LABOR 200 Constitution Ave. NW Washington, DC 20210

Of Counsel:

By: __________________________________

Thomas Brejcha Peter Been THOMAS MORE SOCIETY 29 South LaSalle St. – Suite 440 Chicago, IL 60603 Tel. 312-782-1680 Fax 312-782-1887

Sam Casey Managing Director & General Counsel JUBILEE CAMPAIGN USA – LAW OF LIFE PROJECT 9689-C Main Street Fairfax, VA 22031 USA

-43-

Case: 1:13-cv-03292 Document #: 1 Filed: 05/01/13 Page 44 of 44 PageID #:44 Tel. 202-587-5652 Kevin Edward White KEVIN EDWARD WHITE & ASSOCIATES 77 West Wacker Drive, Suite 4800 Chicago, IL 60601-2010 Tel. 312-606-8602 Fax: 312-606-8603
-44-

 
 Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 1 of 7 PageID #:429

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Martin Ozinga III, et al., Plaintiffs,
v. U.S. Department of Health & Human Services, et al.,
Defendants.

)

)

)

No. 13 C 3292

)

)

Judge Thomas M. Durkin

)

)

)

)

)

ORDER

Defendants move to stay all further proceedings in this case pending the

Seventh Circuit’s ruling in Korte v. Sebelius, No. 12-3841 (7th Cir.), and Grote v.

Sebelius, No. 12-1077 (7th Cir.). R. 17. For the following reasons, Defendants’

motion to stay is granted.

Background

Plaintiffs—eight members of the Ozinga family and their privately-held, for-

profit business, Ozinga Bros., Inc.—challenge certain provisions of the Patient

Protection and Affordable Care Act (“ACA”). As in Korte and Grote, this case

involves the ACA’s requirement that nongrandfathered and nonexempt group

health insurance plans cover certain preventive health services without cost

sharing, 42 U.S.C. § 300gg-13(a)(4), and regulations promulgated by the U.S.

Department of Health and Human Services specifying that the required coverage

must include all FDA-approved contraceptive methods and sterilization procedures.

45 C.F.R. § 147.130. Plaintiffs argue that these ACA provisions contradict their

1

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 2 of 7 PageID #:430
Christian beliefs (and the “foundational ethos” of their for-profit business) and violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), the First and Fifth Amendments of the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq.
On July 16, 2013, the Court entered a preliminary injunction enjoining Defendants from enforcing the relevant ACA provisions and regulations against Plaintiffs until 30 days after the Seventh Circuit issues any mandate denying injunctive relief in Korte and Grote. R. 16. Defendants have not yet answered or otherwise responded to Plaintiffs’ complaint in this case.
Legal Standard “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In deciding whether to enter such a stay, courts consider the following factors: (i) whether a stay will unduly prejudice or tactically disadvantage the nonmoving party; (ii) whether a stay will simplify the issues in question and streamline the trial; and (iii) whether a stay will reduce the burden of litigation on the parties and on the court. Tap Pharm. Prods., Inc. v. Atrix Labs, Inc., 2004 WL 422697, at *1 (N.D. Ill. Mar. 3, 2004). “[I]f there is even a fair possibility that the stay . . . will work damage to someone else,” the party seeking the stay “must make out a clear case of hardship or inequity in being required to go forward.” Landis, 299 U.S. at 255. Indeed, the court “must weigh competing interests and maintain an even
2

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 3 of 7 PageID #:431
balance.” Id. (citing Kansas City S. R. Co. v. United States, 282 U.S. 760, 763 (1931); Enelow v. N.Y. Life Ins. Co., 293 U.S. 379, 382 (1935)).
Courts in this district have recognized that when two related cases are pending in separate federal courts, either of those courts may exercise that inherent power to stay the proceedings before it in deference to the related action. See GE Bus. Fin. Servs. Inc. v. Spratt, 2009 WL 1064608, at *1 (N.D. Ill. Apr. 20, 2009); Whirlpool Fin. Corp. v. Metropolis Capital Grp., 1991 WL 212112, at *3 (N.D. Ill. Oct. 7, 1991). Indeed, this Court has a “duty . . . to avoid duplicative litigation in more than one federal court.” Whirlpool, 1991 WL 212112, at *3 (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)); see also CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 851 (7th Cir. 2002) (“A federal court is authorized to stay proceedings in a lawsuit before it because parallel proceedings are pending in another court, either federal or state.”). Therefore, the Seventh Circuit not surprisingly has advised that “[a] district court has ‘an ample degree of discretion’ in deferring to another federal proceeding involving the same parties and issues to avoid duplicative litigation.” Trippe Mfg. Co. v. Am. Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995) (quoting Kerotest Mfg. Co. v. C-OTwo Fire Equip. Co., 342 U.S. 180, 183 (1952)).
Analysis Defendants argue that the Court should stay the proceedings here pending the Seventh Circuit’s resolution of the Korte and Grote appeals, which involve similar issues, namely plaintiffs from for-profit businesses challenging the validity
3

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 4 of 7 PageID #:432
and constitutionality of the same provisions of the ACA. The Seventh Circuit consolidated the appeals in Korte and Grote and heard oral arguments on May 22, 2013. In both Korte and Grote, the district courts denied the plaintiffs’ motions for preliminary injunctions, which sought to enjoin the defendants from enforcing the ACA’s contraception mandate against the plaintiffs’ businesses. Defendants argue that the Seventh Circuit’s decision in Korte and Grote will address issues at the heart of this case, and that briefing a motion to dismiss in this Court before the Seventh Circuit rules would be a waste of resources.
The Court agrees that a stay is warranted. First, a stay will promote judicial economy by avoiding duplicative litigation, simplifying the issues in question, and reducing the burden of litigation on the parties and the Court. This case is materially similar to Korte and Grote—the defendants are the same and all of the plaintiffs represent for-profit companies seeking to escape the ACA’s contraception mandate. Because a motion for preliminary injunction requires a court to assess the likelihood of success on the merits, the Seventh Circuit will likely address issues such as: (i) whether a for-profit corporation can exercise religion under the RFRA; (ii) whether a mandate upon a corporation can impose a substantial burden on a corporation’s owners under the RFRA; (iii) whether any such burden on the owners would be too attenuated to constitute a “substantial” burden under the RFRA; and (iv) whether the legislature narrowly tailored the ACA’s mandate to serve compelling government interests. Each of these issues will be material to, and potentially dispositive of, the issues raised here. It would be a waste of resources to
4

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 5 of 7 PageID #:433
require the parties to brief these issues now under pre-Korte and Grote case law and for this Court to prematurely proceed in this case only to risk issuing an opinion inconsistent with the Seventh Circuit’s forthcoming ruling in Korte and Grote. The better approach is to await the Seventh Circuit’s guidance.
Second, Plaintiffs do not demonstrate any prejudice or hardship from staying this matter. The Court has already entered a preliminary injunction staying the enforcement of the ACA’s contraception mandate against Plaintiffs until 30 days after the Seventh Circuit issues any mandate denying injunctive relief in Korte and Grote. Plaintiffs cite the hardship and uncertainty this matter poses to their business, but that uncertainty will exist whether this case proceeds immediately or not. Indeed, the bulk of that uncertainty at this stage hinges on how the Seventh Circuit ultimately resolves the pending Korte and Grote appeals.
In opposing a stay, Plaintiffs argue that Defendants’ motion assumes that the government will ultimately prevail in Korte and Grote. The Court disagrees. Regardless of where the Seventh Circuit ends up, its ruling would still provide valuable guidance to this Court and could greatly streamline this case. The Seventh Circuit’s forthcoming ruling in Korte and Grote could just as easily benefit Plaintiffs in this case as opposed to Defendants.
Plaintiffs also argue that this case is not substantially similar to Korte and Grote. Although there are certainly some factual differences between the plaintiffs in each case, the cases still share substantially similar fact patterns and central
5

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 6 of 7 PageID #:434
legal issues. The resolution of Korte and Grote will therefore inform the Court’s decision in this case and narrow the issues which it must resolve.
Finally, the Court notes that many of Plaintiffs’ exact arguments for opposing a stay were considered and rejected in Triune Health Group, Inc. v. U.S. Dep’t of Health & Human Servs., Inc., No. 12 C 6756, R. 64 (N.D. Ill. Apr. 2, 2013) (St. Eve, J.). Triune involved another challenge to the ACA’s contraception mandate. Notably, Triune was even further along than this case—a fully-briefed motion to dismiss was pending. Nonetheless, the court stayed the case until the Seventh Circuit issues its decision and denied the motion to dismiss without prejudice, indicating that it would give the parties sufficient time to refile the motion once the Seventh Circuit provides additional guidance. R. 65. The court’s approach in Triune readily illustrates the folly of allowing the parties here to begin briefing a motion to dismiss while the Korte and Grote appeals are still pending. That briefing would almost certainly be rendered obsolete once the Seventh Circuit rules, and the parties would inevitably have to engage in additional rounds of supplemental briefing to address the Seventh Circuit’s forthcoming ruling.
Conclusion For the foregoing reasons, the Court grants Defendants’ motion to stay. The Court will therefore stay these proceedings until the Seventh Circuit issues a decision in Korte and Grote.
6

Case: 1:13-cv-03292 Document #: 29 Filed: 08/14/13 Page 7 of 7 PageID #:435

ENTERED:

Dated: August 14, 2013

_______________________________ Honorable Thomas M. Durkin United States District Judge

7

 
 Case: 1:13-cv-03292 Document #: 25 Filed: 07/16/13 Page 1 of 2 PageID #:374 tase: 1:13-cv-03292 Document#: 19-10 Filed: 07/15/13 Page 2 of 3 PageiD #:269

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

)

MARTIN OZINGA HI, eta/.,

)

)

Plaintiffs,

)

)

~

)

)

U.S. DEPARTMENT OF HEALTH & )

HUMAN SERVICES, et "/.

)

)

Defendants.

)

Case No. l: 13-cv-3292-TMD

PRELIMINARY INJUNCTION ORDER The Court, having reviewed Plaintiffs' Motion for Temporary Restraining Order Pending Ruling on Motion for Preliminary Injunction, and their Plaintiffs' Memorandum ln Support Of Their Motion for Preliminary Injunction, the Defendants agreeing not to oppose the motion to the extent premised on Plaintiffs RFRA claim, hereby grants the motion and orders as follows:
1. Defendants, their agents, officers, and employees, are enjoined, until thirty (30) days after any mandate denying such injunctive relief issues from the United States Circuit Court for the 7th Circuit Court of Appeals in Korte, et a/. v. Sebelius. et al., Appeal No. 12-3841, and Grote v. Sebelius, et al. consolidated with Korte as Appeal No. 13-1077, from enforcing against Plaintiff'>, their employee health plans, any group health insurance coverage provided in connection with such plans, and/or their insurers the statute and regulations that require Plaintiffs to provide their employees insurance coverage for ''[a]ll Food and Drug Administration approved contraceptive methods, sterilization

Case: 1:13-cv-03292 Document #: 25 Filed: 07/16/13 Page 2 of 2 PageID #:375 tase: 1:13-cv-03292 Document#: 19-10 Filed: 07/15/13 Page 3 of 3 PageiD #:270

procedures, and patient education and counseling for all women \Vith

reproductive capacity," Fed. Reg. 8725. This injunction includes the substantive

requirements imposed in 42 U.S.C. § 300gg-13(a)(4), Pub. L. 111-148, §1563(e)-

(f), as well as the application of any penalties, fines, assessments, or any other

enforcement actions for noncompliance, including but without limitation those

found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, ll85d, and any

determination that any such requirement is applicable to the Plaintiffs.

IT IS SO ORDERED.

~/+77~
The Honorable Thomas M. Durkin

2

 
 Case: 1:13-cv-03292 Document #: 53 Filed: 09/30/15 Page 1 of 5 PageID #:734

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

)

MARTIN OZINGA III, MARTIN

)

OZINGA IV, KARL OZINGA,

)

JUSTIN OZINGA, AARON

)

OZINGA, PAUL OZINGA,

)

TIMOTHY OZINGA, JEFFREY

)

OZINGA, and OZINGA BROS., INC, )

An Illinois corporation,

)

)

Plaintiffs,

)

)

v.

)

)

)

)

)

)

U.S. DEPARTMENT OF HEALTH & )

HUMAN SERVICES; KATHLEEN )

SEBELIUS, in her official capacity as )

Secretary of the U.S. Department of )

Health & Human Services; UNITED )

STATES DEPARTMENT OF THE )

TREASURY; JACOB J. LEW, in his )

official capacity as the Secretary of the )

U.S. Department of the Treasury; )

UNITED STATES DEPARTMENT )

OF LABOR; and SETH D. HARRIS, )

Deputy Secretary of Labor, in his

)

official capacity as Acting Secretary of )

the U.S. Department of Labor,

)

)

Defendants.

)

No. 13 C 3292 Judge Thomas M. Durkin

ORDER
Before the Court are two proposed competing permanent injunction orders
differing in scope. Plaintiffs propose enjoining Defendants from enforcing “any 1

Case: 1:13-cv-03292 Document #: 53 Filed: 09/30/15 Page 2 of 5 PageID #:735
regulation promulgated or amended” pursuant to the Affordable Care Act that would require them to provide health insurance coverage for “abortifacients, contraception, sterilization, and related education and counseling to the employees of Ozinga Bros., Inc.” R. 45-2 at 6. Defendants propose an injunction limited to those regulations at issue in Hobby Lobby v. Burwell and the Plaintiffs’ complaint in this case. See R. 42-1.
For the reasons stated below, the Court grants Defendants’ motion for entry of permanent injunction and final judgment and enters their proposed injunction.
BACKGROUND The Affordable Care Act requires for-profit corporations to provide health insurance to their employees that includes coverage for contraception (the “contraceptive mandate”). Plaintiffs claim that the mandate substantially burdens their exercise of religion in violation of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (the “RFRA”). On July 17, 2013, the Court entered an unopposed preliminary injunction barring the Defendants from enforcing the mandate against Plaintiffs pending the outcome of similar cases then on appeal. See R. 25. On June 30, 2014, the Supreme Court struck down the contraceptive mandate as applied to for-profit corporations objecting on religious grounds. Hobby Lobby v. Burwell, 134 S. Ct. 2751, 2775-85 (2014) (finding that the contraceptive mandate substantially burdens the exercise of religion and is not the least restrictive means to further a presumptively compelling governmental interest). In
2

Case: 1:13-cv-03292 Document #: 53 Filed: 09/30/15 Page 3 of 5 PageID #:736
the wake of the Supreme Court’s ruling, Defendants moved the Court to enter a permanent injunction that bars them from enforcing against Plaintiffs the regulations that the Supreme Court struck down in Hobby Lobby. See R. 42. The Plaintiffs have attached to their response to the Defendants’ motion a broader proposed order that would enjoin the Defendants from enforcing against Plaintiffs any regulations implementing the Affordable Care Act’s provisions regarding contraception. See R. 45-2.
ANALYSIS The scope of an injunction should match, but not exceed, the specific relief requested and permitted by law. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (Injunctions “must be narrowly tailored to remedy the specific harm shown.”); Califano v. Yamasaki, 422 U.S. 682, 702 (1979) (“[I]njunctive relief should be no more more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”). Plaintiffs seek to enjoin regulations, adopted after the Plaintiffs filed their complaint in this case, intended to accommodate the religious beliefs of objecting for-profit corporations. See R. 45 at 12-13; see also Final Rules, Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318 (July 14, 2015). Whether those regulations are valid is beyond the scope of Plaintiffs’ current complaint, and they have not sought to amend it.1 The overwhelming majority of
1 The Seventh Circuit has recently issued decisions rejecting arguments similar to the arguments the Plaintiffs make in this case regarding the new regulations. See
3

Case: 1:13-cv-03292 Document #: 53 Filed: 09/30/15 Page 4 of 5 PageID #:737
judges who have dealt with this issue have entered permanent injunctions consistent with the Defendants’ proposed order, in some cases over objection. See R. 42 at 9 (42 of the 43 cases addressing the issue have entered injunctions similar to the one the Defendants have proposed);2 see also R. 42-2. The Court believes that Judge Reggie Walton’s statement in one of those cases is apt here: “the breadth of the plaintiffs’ proposed injunction would conceivably enjoin regulations that could pass muster under the RFRA.” Tyndale House Publishers v. Burwell, No. 12-1635 (RBW) (D.D.C. July 15, 2015), R. 53.
In sum, the Plaintiffs seek an improperly broad injunction. They are entitled to an injunction limited to the specific statutory provisions decided in Hobby Lobby and at issue in this case, and no more.
CONCLUSION For the foregoing reasons, the Court grants the Defendants’ motion for entry of a permanent injunction and final judgment, R. 42, and grants the Plaintiffs’ motion for leave to file supplemental authority, R. 52.
University of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015); Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. 2015); Grace Schools v. Burwell, — F.3d —, Nos. 14-1430 & 14-1431, 2015 WL 5167841 (7th Cir. Sept. 4, 2015). 2 On September 18, 2015, Plaintiffs filed, but did not notice for hearing, a motion to file supplemental authority. R. 52. The Court grants that motion. The judge in the case that the Plaintiffs cite in their motion—March for Life v. Burwell, Case No. 14cv-1149 (RJL) (D.D.C. Aug. 31, 2015)—granted an injunction similar to the injunction that the Plaintiffs have requested in this case. So, it appears that the current tally is 42 of 44.
4

Case: 1:13-cv-03292 Document #: 53 Filed: 09/30/15 Page 5 of 5 PageID #:738

ENTERED:

Dated: September 30, 2015

Honorable Thomas M. Durkin United States District Judge

5

 
 General Docket Seventh Circuit Court of Appeals
Court of Appeals Docket #: 15-3648 Nature of Suit: 2440 Other Civil Rights Timothy Ozinga, et al v. Thomas E. Price, et al Appeal From: Northern District of Illinois, Eastern Division Fee Status: Paid

Docketed: 11/30/2015 Termed: 04/28/2017

Case Type Information: 1) civil 2) us 3) -

Originating Court Information:

District: 0752-1 : 1:13-cv-03292

Trial Judge: Thomas M. Durkin, District Court Judge

Date Filed: 05/01/2013

Date Order/Judgment:

Date NOA Filed:

09/30/2015

11/27/2015

Prior Cases: None

Current Cases: None

TIMOTHY OZINGA Plaintiff - Appellant
PAUL OZINGA Plaintiff - Appellant
AARON OZINGA Plaintiff - Appellant

Kevin Edward White, Attorney Direct: 312-606-8602 [COR LD NTC Retained] KEVIN EDWARD WHITE & ASSOCIATES Suite 4800 77 W. Wacker Drive Chicago, IL 60601
Kevin Edward White, Attorney Direct: 312-606-8602 [COR LD NTC Retained] (see above)
Kevin Edward White, Attorney Direct: 312-606-8602 [COR LD NTC Retained] (see above)

JUSTIN OZINGA Plaintiff - Appellant
JEFFREY OZINGA Plaintiff - Appellant
v.

Kevin Edward White, Attorney Direct: 312-606-8602 [COR LD NTC Retained] (see above)
Kevin Edward White, Attorney Direct: 312-606-8602 [COR LD NTC Retained] (see above)

NORRIS W. COCHRAN, Acting Secretary of the U.S. Department of Health and Human Services Terminated: 02/17/2017
Defendant - Appellee

THOMAS E. PRICE, Secretary of the U.S. Department of Health and Human Services
Defendant - Appellee

Benjamin L. Berwick, Attorney [COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530
Patrick Nemeroff, Attorney [COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530-0000
Alisa B. Klein, Attorney [NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530-0000

SYLVIA MATHEWS BURWELL, In her official capacity as Secretary of the U.S. Department of Health and Human Services Terminated: 02/02/2017
Defendant - Appellee

ADAM J. SZUBIN, Acting Secretary of the Treasury Terminated: 02/17/2017
Defendant - Appellee

STEVEN T. MNUCHIN, Secretary of the Treasury
Defendant - Appellee

Benjamin L. Berwick, Attorney [COR LD NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [COR LD NTC Government Federal] (see above)
Alisa B. Klein, Attorney [NTC Government Federal] (see above)

JACOB J. LEW, in his official capacity as Secretary of the U.S. Department of Treasury Terminated: 02/02/2017
Defendant - Appellee

EDWARD C. HUGLER, Acting Secretary of Labor Terminated: 05/04/2017
Defendant - Appellee

R. ALEXANDER ACOSTA, Secretary of Labor
Defendant - Appellee

Benjamin L. Berwick, Attorney [COR LD NTC Government Federal] (see above)
Patrick Nemeroff, Attorney [COR LD NTC Government Federal] (see above)
Alisa B. Klein, Attorney [NTC Government Federal] (see above)

SETH D. HARRIS, in his official capacity as Deputy Secretary of the U.S. Department of Labor Terminated: 02/02/2017
Defendant - Appellee

TIMOTHY OZINGA, et al., Plaintiffs - Appellants
v.
THOMAS E. PRICE, Secretary of the United States Department of Health & Human Services, et al., Defendants - Appellees

11/30/2015

1
28 pg, 974.99 KB

U.S. civil case docketed. Fee paid. Docketing Statement due for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga by 12/04/2015. Transcript information sheet due by 12/14/2015. Appellant's brief due on or before 01/11/2016 for Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [1] [6711270] [153648] (AP)

11/30/2015 2

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: APPELLANTS: Ozinga Bros, Inc., Marty Ozinga IV, Martin Ozinga, III and Karl Ozinga. [2] [6711272] [15-3648] (AP)

12/03/2015 3
5 pg, 81.13 KB

Docketing Statement filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. Prior or Related proceedings: No. [3] [6712269] [15-3648] (White, Kevin)

12/03/2015 4
2 pg, 39.4 KB

Circuit Rule 26.1 Disclosure Statement and Appearance filed by Attorney Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. Additional Parties: Ozinga Bros., Inc.. [4] [6712273] (L-Yes; EYes; R-No) [15-3648] (White, Kevin)

12/03/2015 5
1 pg, 23.44 KB

Filed Certificate of Service to Docketing Statement (No. 3-1) filed on 12/03/2015 by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [5] [6712278] [153648] (White, Kevin)

12/10/2015 6
2 pg, 51.89 KB

Appearance form filed by Attorney Patrick G. Nemeroff for Appellees Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. [6] [6713767] (L-Yes; E-Yes; R-No) [15-3648]--[Edited 12/10/2015 by FP to reflect that atty. Nemeroff and atty. Klein are added to the docket.] (Nemeroff, Patrick)

12/10/2015 7
2 pg, 51.88 KB

Appearance form filed by Attorney Alisa B. Klein for Appellees Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. [7] [6713768] (L-No; E-Yes; R-No) [15-3648] (Nemeroff, Patrick)

12/11/2015 8

Filed Seventh Circuit Transcript Information Sheet by Appellants

2 pg, 158.85 KB Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and

Timothy Ozinga. [8] [6714304] [15-3648] (White, Kevin)

01/11/2016 9
1 pg, 8.55 KB

ENTRY REMOVED AS ENTERED IN ERROR. Supplemental record on appeal filed. Contents of record : 1 vol. of exhibits on DVD. [9] [6720251] [15-3648]--[Edited 01/11/2016 by JAD] (SK)

01/11/2016 10
73 pg, 2.01 MB

Submitted appellant brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [10] [6720559] [15-3648] (White, Kevin)

01/11/2016 11
3 pg, 98.51 KB

Brief deficiency letter sent to Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [11] [6720751] [15-3648] (SP)

01/11/2016 13
72 pg, 11.22 MB

Appellant's brief filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. Paper copies due on 01/21/2016. Appellee's brief due on or before 02/16/2016 for Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. Electronically Transmitted. [13] [6721346] [15-3648] (SP)

01/12/2016 12
73 pg, 1.74 MB

Re-Submitted appellant brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [12] [6720858] [15-3648] (White, Kevin)

01/21/2016 14
5 pg, 86.3 KB

Motion filed by Appellees Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew for stay of appeal. [14] [6722974] [153648] (Nemeroff, Patrick)

01/25/2016 15
1 pg, 105.67 KB

ORDER re: MOTION TO HOLD APPEAL IN ABEYANCE PENDING THE SUPREME COURT'S DECISION IN ZUBIK v. BURWELL, NO. 1418. The appellants shall file a response to the motion by February 8, 2016. ZXT [15] [6723402] [15-3648] (CR)

01/26/2016 16
3 pg, 72.96 KB

Motion filed by Appellees Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew to extend time to file appellee brief. [16] [6723835] [15-3648] (Nemeroff, Patrick)

01/26/2016 17
1 pg, 115.87 KB

Order issued GRANTING Unopposed motion for a 21-day extension of time to file appellees' brief [16] Appellees' brief due on or before 03/08/2016 for Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. Appellants' reply brief, if any, is due on or before 03/22/2016 for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. CMD [17] [6723972] [15-3648] (AP)

02/08/2016

18
23 pg, 160.05 KB

Filed Response in Opposition by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga Attorney Kevin Edward White to Appellees' Motion to Hold Appeal in Abeyance Pending the Supreme Court's Decision in Zubik v. Burwell, No. 14-1418. [18][6727173] [15-3648] (White, Kevin)

02/09/2016 19
1 pg, 97.82 KB

ORDER re: Motion to hold appeal in abeyance pending the Supreme Court's decision in Zubik v. Burwell, No. 14-1418. Briefing in this appeal is SUSPENDED pending resolution of the appellees' Motion to Hold Appeal in Abeyance. ZXT [19] [6727498] [15-3648] (AP)

02/10/2016 20
2 pg, 864.95 KB

ORDER re: 1) Motion to Hold Appeal in Abeyance Pending the Supreme Court’s Decision in Zubik V. Burwell, No. 14-1418. [14] 2) Appellants’ Opposition Response to Appellees’ Motion to Hold Appeal in Abeyance. The appellees' motion is GRANTED to the extent that briefing in this appeal shall proceed as follows: 1. The appellants shall file a supplemental brief by July 15, 2016. The supplemental brief shall not exceed 5,000 words and shall address what effect, if any, the Supreme Court's pending case of Zubik v. Burwell, No. 14-1418 (cert. granted Nov. 6, 2015), has on this appeal. 2. The appellees' brief is due by August 15, 2016. 3. The appellants' reply brief, is any, is due by August 29, 2016. ZXT [20] [6727841] [15-3648] (AD)

07/15/2016 21
11 pg, 2.8 MB

Submitted supplemental brief by Kevin Edard White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [21] [6767527] [15-3648] (White, Kevin)

07/15/2016 22
2 pg, 98.59 KB

Brief deficiency letter sent to Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [22] [6767714] [15-3648] (AB)

07/15/2016

24
15 pg, 564.48 KB

Supplemental brief filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga.... Paper copies due on 07/25/2016 Electronically Transmitted. [24] [6767982] [15-3648] (AB)

07/18/2016

23
15 pg, 544.47 KB

Re-Submitted supplemental brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [23] [6767925] [15-3648] (White, Kevin)

08/15/2016 25

Submitted appellee brief by Patrick G. Nemeroff for Appellees

22 pg, 131.04 KB Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. [25]

[6775260] [15-3648] (Nemeroff, Patrick)

08/15/2016 26

Appellee's brief filed by Appellees Sylvia Mathews Burwell, Seth

22 pg, 136.61 KB D. Harris and Jacob J. Lew. Paper copies due on 08/22/2016

Electronically Transmitted. [26] [6775541] [15-3648] (MT)

08/26/2016 27

Notice to the District Court to transmit the record on appeal. [27]

1 pg, 87.64 KB [6778180] [15-3648] (MT)

08/29/2016

28
16 pg, 174.77 KB

Submitted appellant reply brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [28] [6778830] [15-3648] (White, Kevin)

08/29/2016

29
16 pg, 181.69 KB

Appellant's reply brief filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. Paper copies due on 09/06/2016 Electronically Transmitted. [29] [6778920] [15-3648] (MT)

08/31/2016 30

Original record on appeal filed electronically. Contents of record :

1140 pg, 95.8 MB 2 vol. of pleadings. [30] [6779317] [15-3648] (NR)

08/31/2016 31

Filed electronic transcript of proceedings held on 07/16/2013. [31] [6779318] THIS TRANSCRIPT IS FOR INTERNAL COURT USE ONLY. Remote electronic access to the transcript is ONLY available through the District Court's PACER system. [15-3648] (NR)

09/21/2016 32

Argument set for Tuesday, November 1, 2016, at 9:30 a.m. in the

4 pg, 138.95 KB Main Courtroom, Room 2721. Each side limited to 15 minutes.

[32] [6784137] [15-3648] (NR)

09/28/2016 33
1 pg, 19.97 KB

Received argument confirmation from Patrick Nemeroff for Appellees Sylvia Mathews Burwell, Seth D. Harris and Jacob J. Lew. [33] [6786340] [15-3648] (Nemeroff, Patrick)

09/29/2016 34
1 pg, 95.52 KB

Received argument confirmation from Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [34] [6786682] [15-3648] (White, Kevin)

09/29/2016 35
1 pg, 110.33 KB

Received argument confirmation from Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [35] [6786685] [15-3648] (White, Kevin)

11/01/2016 36

Case heard and taken under advisement by panel: Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [36] [6794578] [15-3648] (NR)

11/01/2016 37
12/27/2016 38
0 pg, 0 KB
12/27/2016 39
0 pg, 0 KB
12/27/2016 40
0 pg, 0 KB
12/27/2016 41
1 pg, 62.36 KB
01/09/2017 43
1 pg, 96.69 KB
01/19/2017 44
7 pg, 1.69 MB
01/20/2017 45
1 pg, 95.77 KB

Case argued by Mr. Kevin Edward White for Appellants Timothy Ozinga, Paul Ozinga, Aaron Ozinga, Justin Ozinga and Jeffrey Ozinga and Mr. Patrick Nemeroff for Appellees Seth D. Harris, Jacob J. Lew and Sylvia Mathews Burwell. [37] [6794585] [153648] (NR)
Filed opinion of the court by Judge Rovner. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [38] [6807289] [15-3648]-[Edited 12/27/2016 by JAD] - [Opinion WITHDRAWN per 12/27/2016 order.] (VG)
ORDER: Final judgment filed per opinion. With costs: yes. [39] [6807296] [15-3648--[Edited 12/27/2016 by JAD] - [Opinion WITHDRAWN per 12/27/2016 order.] (VG)
INTERNET CITATION NOTE: Material from decision with internet citation. ATTACHED. [40] [15-3648]--[Edited 12/27/2016 by JAD] - [Opinion WITHDRAWN per 12/27/2016 order.] (BF)
IT IT ORDERED that the opinion and judgment of this court issued 12/27/2016, are WITHDRAWN as erroneously issued. The appeal remains under consideration by the court. JD [41] [6807373] [15-3648] (JAD)
ORDER: The parties are directed to file supplemental briefs addressing the question whether this case became moot once the regulatory accommodation for religious employers was revised in July 2015 to include closely held, for-profit employers. Appellants shall file their initial supplemental brief no later than January 23, 2017. Appellees shall file their response no later than February 6, 2017. Appellants shall file their reply, if any, no later than February 13, 2017. [6809788] [15-3648] (AP)
Motion filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga to extend time to file Appellants' Supplemental Memorandum and Cert of Service of same. [44] [6812705] [15-3648] (White, Kevin)
Order issued GRANTING motion to extend time to file supplemental brief. The motion is GRANTED. Appellants shall file their initial supplemental brief no later than January 30, 2017. Appellees shall file their response no later than February 13, 2017. Appellants shall file their reply, if any, no later than February 21, 2017. [44] EAH [45] [6813162] [15-3648] (FP)

01/30/2017 46
20 pg, 591.7 KB

Submitted supplemental brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [46] [6815232] [15-3648] (White, Kevin)

01/30/2017

47
20 pg, 602.37 KB

Supplemental brief filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. Paper copies due on 02/07/2017. Electronically Transmitted. [47] [6815289] [15-3648] (GW)

02/02/2017 48

Appellee Sylvia Mathews Burwell has been substituted by Appellee Norris W. Cochran; Appellee Jacob J. Lew has been substituted by Appellee Adam J. Szubin; and Appellees Thomas E. Perez and Seth D. Harris have been substituted by Appellee Edward C. Hugler in 13-3853, 14-1430, 14-1431 & 15-3648, pursuant to FRAP 43(c). [48] [6815901] [13-3853, 14-1430, 141431, 15-3648] (JR)

02/02/2017 49
4 pg, 79.17 KB

Motion filed by Appellees Norris W. Cochran, Edward C. Hugler and Adam J. Szubin to extend time to file supplemental brief. [49] [6815945] [15-3648] (Nemeroff, Patrick)

02/03/2017 50
1 pg, 98.6 KB

ORDER re: Unopposed motion for a four-day extension of time to file appellees' supplemental brief. IT IS ORDERED that the motion for an extension of time is GRANTED. Appellees shall file their supplemental brief on or before February 17, 2017. Appellants shall file their reply, if any, on or before February 24, 2017.[49]EAH [50] [6816114] [15-3648] (AP)

02/13/2017 51
2 pg, 94.08 KB

Brief deficiency letter sent to Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. The Supplemental brief was electronically filed on 01/30/2017. The paper copies of this brief were due to be submitted to the Clerk's Office by 02/07/2017. The paper copies have not been received by this court. Paper copies due on 02/21/2017 or the court may issue a Rule of Show Cause order pursuant to Circuit Rule 31. [51] [6818352] [15-3648] (FI)

02/17/2017 52
0 pg, 0 KB

Submitted supplemental brief by Patrick G. Nemeroff for Appellees Thomas E. Price, Steven T. Mnuchin and Edward C. Hugler. [52] NOTE: Access to this entry is limited to counsel of record. Once the document is approved by the court, it will be filed onto the court's docket as a separate entry which will be open to the public. [6819696] [15-3648]--[Text updated 02/17/2017 by JR.] (Nemeroff, Patrick)

02/17/2017 53

Appellee Norris W. Cochran has been substituted by Appellee Thomas E. Price, and Adam J. Szubin has been substituted by

Appellee Steven T. Mnuchin, in 13-3853, 14-1430, 14-1431 & 153648, pursuant to FRAP 43(c). [53] [6819848] [13-3853, 14-1430, 14-1431, 15-3648] (JR)

02/17/2017

54
10 pg, 104.86 KB

Supplemental brief filed by Appellees Edward C. Hugler, Steven T. Mnuchin and Thomas E. Price, per order. Paper copies due on 02/24/2017 Electronically Transmitted. [54] [6819868] [15-3648] (NR)

02/24/2017 55
0 pg, 0 KB

Submitted supplemental brief by Kevin Edward White for Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga. [55] NOTE: Access to this entry is limited to counsel of record. Once the document is approved by the court, it will be filed onto the court's docket as a separate entry which will be open to the public. [6821539] [15-3648] (White, Kevin)

02/24/2017

56
39 pg, 731.92 KB

Supplemental reply brief filed by Appellants Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Paul Ozinga and Timothy Ozinga, per order. Paper copies due on 03/06/2017 Electronically Transmitted. [56] [6821553] [15-3648] (NR)

04/28/2017

57
12 pg, 117.75 KB

Filed opinion of the court by Judge Rovner. The judgment is VACATED and the case is REMANDED with directions to dismiss the case as moot. The district court retains authority to entertain Ozinga's request for an award of costs and attorney's fees. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [57] [6837439] [15-3648] (FP)

04/28/2017 58

ORDER: Final judgment filed per opinion. The parties shall bear

1 pg, 87.63 KB their own costs of appeal. [58] [6837449] [15-3648] (FP)

04/28/2017 59

INTERNET CITATION NOTE: Material from decision with

16 pg, 1.18 MB internet citation. ATTACHED. [59] [15-3648] (BF)

05/04/2017 60

Appellee/Respondent Edward C. Hugler & Thomas E. Perez have been substituted by Appellee/Respondent R. Alexander Acosta, as Secretary of Labor, in 13-3853, 14-1430, 14-1431, 15-3648, 164244, 17-1087, 17-1096, 17-1184, 17-1201, 17-1216, 17-1321, 171329 & 17-1555, pursuant to FRAP 43(c). [60] [6838781] [133853, 14-1430, 14-1431, 15-3648, 16-4244, 17-1087, 17-1096, 171184, 17-1201, 17-1216, 17-1321, 17-1329, 17-1555] (JR)

06/20/2017 61

Mandate issued. No record to be returned. [61] [6848860] [15-

2 pg, 89.99 KB 3648] (CR)

06/20/2017

FOR COURT USE ONLY: Certified copy of 04/28/2017 Opinion

15 pg, 340.96 KB and Judgment with Mandate sent to the District Court Clerk.

[6848865-2] [6848865] [15-3648] (CR)

 
 Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

In the
United States Court of Appeals
For the Seventh Circuit

No. 15-3648

TIMOTHY OZINGA, et al.,

Plaintiffs-Appellants,

v.

THOMAS E. PRICE, Secretary of Health and Human Services, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:13-cv-03292 — Thomas M. Durkin, Judge.

ARGUED NOVEMBER 1, 2016 — DECIDED APRIL 28, 2017

Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Ozinga Brothers, Inc. (“Ozinga Brothers”) is a family-owned firm supplying ready-mix concrete products and services to builders primarily in the Chicago metropolitan area. The company, along with its owners and senior managers (collectively, “Ozinga”) filed this

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

2

No. 15-3648

suit in 2013, challenging the so-called contraception mandate emanating from the Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act”), 124 Stat. 119 (Mar. 23, 2010). The mandate is embodied in federal regulations implementing a requirement of the Affordable Care Act that nonexempt and non-grandfathered group health plans provide specified preventative-health services to plan participants without cost-sharing; among those services are contraceptives approved by the Food and Drug Administration. See 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv); http://hrsa.gov/womensguidelines2016/index.html (women’s preventative service guidelines) (visited April 26, 2017). Employers who refuse to provide such services are subject to substantial fines. See 26 U.S.C. § 4980H. Ozinga regards certain of the contraceptives covered by the mandate as potential abortifacients, the use of which is proscribed by the firm owners’ and managers’ religious tenets. Invoking the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq., among other statutory and constitutional provisions, Ozinga sought declaratory and injunctive relief barring the enforcement of the mandate.
By the time Ozinga filed suit in 2013, the government had established an accommodation for certain religious employers that provided for alternate means of ensuring employee access to the contraceptive services specified by the mandate without payment or direct involvement by an objecting employer. 76 Fed. Reg. 46,621, at 46,623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012); see also 78 Fed. Reg. 39,870, at 39,873–882 (July 2, 2013) (simplifying and clarifying criteria identifying employers

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

No. 15-3648

3

eligible for exemption); 45 C.F.R. §147.131(a) & b(2)(i). However, the accommodation was not then available to any forprofit employers like Ozinga Brothers. Ozinga’s complaint highlighted the discrepancy. See R. 1 ¶¶ 105–08, 112–16, 170–76, 206, 227–28, 245. At the same time, the complaint made no allegation suggesting that an extension of the accommodation to for-profit firms would be insufficient to resolve Ozinga’s religious objections to the mandate.
Ozinga’s suit was part of an initial wave of lawsuits challenging the application of the contraception mandate to for-profit firms. In the first such cases to reach this court, we held that the objecting closely-held firms were entitled to preliminary injunctions barring enforcement of the mandate. We concluded that the firms were likely to prevail on their claims under the RFRA that the mandate substantially burdened the religious rights of both the firms and their owners, see § 2000bb-1(a), and that the government was unlikely to show that it had employed the least restrictive means of furthering its asserted interest in increasing access to contraceptives, see § 2000bb-1(b). Korte v. Sebelius, 528 F. App’x 583 (7th Cir. 2012) (non-precedential decision) (“Korte I”) (granting interim relief pending appeal); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (same); Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) (“Korte II”) (holding plaintiff companies were entitled to preliminary injunctive relief).
Without opposition from the government, and in light of our decisions in Korte I and Grote, the district court granted Ozinga’s motion for a preliminary injunction barring enforcement of the mandate against Ozinga Brothers; it also stayed

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

4

No. 15-3648

further proceedings pending our resolution of the merits of the Korte and Grote appeals.
This first wave of litigation culminated in the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Hobby Lobby concluded that the contraception mandate, as applied to closely-held private firms whose owners objected on religious grounds to one or more types of contraceptives covered by the mandate, substantially burdened the exercise of religion by those owners—and by extension, their companies—in view of the fines to which the firms were subject if they did not comply with the mandate. Id. at 2768–79. The Court reasoned that the mandate was not the least restrictive means of furthering the government’s interest in making contraceptives widely available, given that the government could (among other alternatives), extend the existing accommodation for religiously-affiliated, not-for-profit employers to closely-held for-profit employers. Id. at 2782–83. The Court left open the question whether that accommodation in its particulars “complies with RFRA for purposes of all religious claims.” Id. at 2782; see also id. at 2763 n.9.
In the wake of the Hobby Lobby decision, the government in July 2015 extended the accommodation to closely held forprofit employers who object to the mandate on religious grounds. 80 Fed. Reg. 41,318, at 41,322–328 (July 14, 2015); see 45 C.F.R. § 147.131(b)(2)(ii).
In the meantime, a second wave of litigation challenging the contraception mandate had commenced in federal courts around the country. This round of litigation was instigated by various not-for-profit, religiously-affiliated employers to

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

No. 15-3648

5

whom the accommodation had been available from the start. These employers contested the adequacy of the accommodation, which imposes certain procedural requirements on an objecting employer, to protect their religious interests. This court rejected the challenges brought by these not-for-profit employers in multiple decisions. See Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015), cert. granted, j. vacated, & remanded, 136 S. Ct. 2007 (2016); Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015); Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. 2015), cert. granted, j. vacated, & remanded, 136 S. Ct. 2010, 2011 (2016). Ultimately, when the Supreme Court took up this line of challenges in Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curiam), the Court declined to reach the merits of the issues presented. Instead, the Court remanded these cases to the lower courts in order to afford the parties an opportunity to see if the accommodation could be modified in such a way as to address the religious concerns of the objecting employers while continuing to meet the government’s interest in making contraceptive services available to employees. The government solicited public comments on possible modifications, 81 Fed. Reg. 47,741 (July 22, 2016); the period for such comments has closed, and potential revisions to the accommodation are under advisement.1

1 Earlier this year, in the waning days of President Obama’s administration, the government indicated that no further revisions to the regulatory accommodation would be made at that time. See FAQs About Affordable Care Act Implementation Part 36, at 4, 5 (January 9, 2017), https://www.cms.gov/ CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/ACA-FAQs-Par36_ 1-9-17-Final.pdf (visited April 26, 2017). However, when President Trump
(continued...)

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

6

No. 15-3648

This second wave of litigation challenging the sufficiency of the accommodation was in full swing in September 2015 when the parties in this case came before the district court with competing proposals as to what form of permanent injunctive relief they viewed as appropriate in view of the Supreme Court’s decision in Hobby Lobby. Notwithstanding the fact that the regulatory accommodation had by this time been expanded to include closely held for-profit employers, Ozinga believed

1 (...continued) assumed office, he immediately issued an executive order directing the Secretary of Health and Human Services and the heads of all other executive departments and agencies with authorities and responsibilities under the Patient Protection and Affordable Care Act to “exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose … a cost, fee, tax, penalty, or regulatory burden on … health insurers, … [or] purchasers of health insurance … .” Exec. Order No. 13,765 of Jan. 20, 2017, Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal § 2, 82 Fed. Reg. 8351 (publ. Jan. 24, 2017). Post-Zubik status updates submitted to this court in cases challenging the sufficiency of the accommodation indicate that the parties have not yet ruled out the possibility of a mutually-agreeable settlement of those disputes. See, e.g., Grace Schools, et al. v. Price, et al., Nos. 14-1430 & 14-1431, Doc. 132 at 2 (Status Report of Plaintiffs-Appellees) (“On February 13, 2017, counsel for Plaintiffs-Appellees submitted a letter to the Attorney General to reinitiate discussions concerning a resolution of these cases, as was contemplated by the Supreme Court’s order in Zubik. PlaintiffsAppellees are awaiting the Government’s response.”); Doc. 131 (Status Report of Appellants) (“The Departments respectfully request that they be permitted to file another status report in 60 days on May 15, 2017, to allow incoming leadership personnel adequate time to consider the issues.”). We take it then, that further revision of the accommodation remains a possibility.

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

No. 15-3648

7

it was entitled to a broad injunction precluding enforcement of any regulation promulgated in furtherance of the mandate, including the newly-revised accommodation. The government, by contrast, asked the court to enter an injunction limited to the original version of the contraception mandate, which of course had made no accommodation available to for-profit employers. The court decided to adopt the government’s proposal (R. 53) and entered a permanent injunction limited to the mandate as it existed prior to the Supreme Court’s decision in Hobby Lobby (R. 54). But the injunction provided that “nothing herein prevents plaintiffs from filing a new civil action to challenge the accommodations or any other post-Hobby Lobby changes in statute or regulation.” R. 54 at 2–3.
Ozinga contends on appeal that the district court abused its discretion and otherwise erred in entering the more limited injunction proposed by the government rather than the injunction that Ozinga itself proposed. Ozinga reasons that the injunction as entered provides no lasting relief to the plaintiffs because it is limited to a state of affairs pre-dating Hobby Lobby—one that no longer exists. Ozinga makes other objections to the injunction, but we need not reach the merits of these challenges. We agree with Ozinga that it was error for the court to enter an injunction directed to a version of the regulatory framework that has been superseded—although not on the grounds that Ozinga has advanced. In fact, for the reasons that follow, we conclude that it was error for the court to enter any injunctive relief at all once the regulatory accommodation was revised to include for-profit employers like Ozinga Brothers. At that point, the case was moot.

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

8

No. 15-3648

Ozinga’s suit was focused exclusively on the mandate as it was originally adopted, with no accommodation addressed to closely held for-profit employers like Ozinga Brothers that object to the mandate on religious grounds. Ozinga’s complaint was that the accommodation was limited to not-forprofit employers and that for-profit employers, like Ozinga Brothers, were categorically excluded from the accommodation. Nothing in the complaint presented any question as to the adequacy of the accommodation itself, nor at any time during the pendency of the suit did the plaintiffs seek to amend their complaint to challenge the particulars of the accommodation (beyond who could invoke it), notwithstanding the second wave of litigation by other employers presenting such challenges. See R. 53 at 3 (district court’s order adopting government’s proposed injunction) (“Whether the post-Hobby Lobby regulations are valid is beyond the scope of Plaintiffs’ current complaint, and they have not sought to amend it.”).
Our jurisdiction as a federal court is limited by Article III to live cases and controversies, U.S. CONST. art. III, § 2, and “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969, 1975 (2016) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S. Ct. 721, 726 (2013)); see also Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). When a plaintiff’s complaint is focused on a particular statute, regulation, or rule and seeks only prospective relief, the case becomes moot when the government repeals, revises, or replaces the challenged law and thereby removes the complained-of defect. See, e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472, 474, 478, 110 S. Ct. 1249, 1252, 1254 (1990)

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

No. 15-3648

9

(amendments to statute); Princeton Univ. v. Schmid, 455 U.S. 100, 103, 102 S. Ct. 867, 869 (1982) (per curiam) (amendment of regulations). At that point, there is no longer an ongoing controversy: the source of the plaintiff’s prospective injury has been removed, and there is no “effectual relief whatever” that the court can order. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S. Ct. 447, 449 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 133 (1895)); see, e.g., Fed’n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (repeal of challenged statute) (collecting cases); City of Milwaukee v. Block, 823 F.2d 1158, 1163–64 (7th Cir. 1987) (repeal of regulations that plaintiff alleged defendants were ignoring). Only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated will a court recognize that the controversy remains live. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.11, 102 S. Ct. 1070, 1074–75 & n.11 (1982) (case not moot despite repeal of challenged statute where city had announced its intent to reenact the statute if district court’s judgment were vacated). Otherwise, we presume that government officials have acted in good faith in repealing the challenged law or policy. See, e.g., Fed’n of Adver. Indus. Representatives, 326 F.3d at 929.
In this case, the revision of the regulatory framework in July 2015 rendered moot Ozinga’s challenge to the contraception mandate. As we have said, that challenge was focused solely on the exclusion of for-profit companies from the regulatory accommodation for employers with religious objections to the mandate. Ozinga had enjoyed the benefit of preliminary injunctive relief during the litigation, so it had

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

10

No. 15-3648

suffered no injury as a result of the mandate; what it sought was prospective relief. Once the government, in response to the Hobby Lobby decision, re-wrote the regulations to permit closely held for-profit firms to invoke the accommodation (and there was no dispute that Ozinga Brothers had become eligible for and entitled to invoke the revised accommodation), the mandate no longer posed a prospective harm to the company, and there was no longer any action for the court to take on Ozinga’s behalf. Any injunction directed to the prior regulations foreclosing the accommodation to Ozinga Brothers (which is the very sort of injunction that the district court entered here) necessarily would be meaningless, as those regulations no longer exist. See N.E. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670, 113 S. Ct. 2297, 2305 (1993) (O’Connor, J., dissenting) (collecting cases). True, regulations are transitory, see Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 328 (7th Cir. 1991), and in light of the second-wave challenges to the sufficiency of the accommodation and Zubik’s directive to see if those challenges can be accommodated, further revisions to the regulatory framework may be in the offing. But we have no reason to think that any such revisions might result in the renewed exclusion of corporations like Ozinga Brothers from the accommodation, given the Supreme Court’s holding in Hobby Lobby that such corporations otherwise have a valid First Amendment objection to the mandate. In short, “the issue of the validity of the old regulation[s] is moot, [and] this case has ‘lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law.’” Princeton Univ., 455 U.S. at 103, 102 S. Ct. at

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

No. 15-3648

11

869 (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S. Ct. 200, 201–02 (1969) (per curiam)).
The parties’ shared belief that there remains a live controversy2—because the plaintiffs have asked for a broad injunction permanently barring any enforcement of the mandate against Ozinga Brothers—mistakenly presumes that Ozinga has made a case that might plausibly support such relief. But as we have said, Ozinga’s complaint focused on its exclusion from the accommodation made available to not-for-profit entities, and at no time in the litigation has Ozinga alleged that the accommodation itself is inadequate to address its religious concerns. Its briefing on the subject of mootness merely hints at the possibility that the accommodation may be insufficient (by referencing the Zubik line of challenges), without bothering to explain why the accommodation as presently constructed may pose a problem for Ozinga Brothers or its principals. If, indeed, Ozinga continues to face the threat of injury notwithstanding the fact that closely held for-profit firms may now invoke the accommodation, it has made no such showing in any form. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 108–09, 118 S. Ct. 1003, 1019–20 (1998). It could have sought leave to amend its complaint to pursue such allegations and did not; it is free to file a new suit if it believes the existing accommodation is flawed in some way.
To be sure, the revised regulations do not alter Ozinga’s status as a prevailing party in this case. The change occurred

2 Following oral argument, we asked the parties to submit supplemental briefs as to whether this case became moot after the accommodation was revised in July 2015.

Case: 15-3648 Document: 57

Filed: 04/28/2017 Pages: 12

12

No. 15-3648

after Ozinga sought and obtained preliminary injunctive relief and after Hobby Lobby validated the legal theory that Ozinga and other employers had pursued in this and similar suits. See Cerajeski v. Zoeller, 794 F.3d 828, 830–31 (7th Cir. 2015). Consequently, nothing prevents the district court from entering an appropriate award of fees to Ozinga pursuant to 42 U.S.C. § 1988(b).
We therefore VACATE the judgment and REMAND with directions to dismiss the case as moot. The district court retains the authority to entertain Ozinga’s request for an award of costs and attorney’s fees. The parties shall bear their own costs of appeal.

 
 Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 1 of 11
APPEAL,MARTIN,STAYED,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:13−cv−03292

Ozinga v. United States Department of Human Services et al Assigned to: Honorable Thomas M. Durkin Case in other court: 15−03648 Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 05/01/2013 Date Terminated: 09/30/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Mr. Timothy Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448

represented by Thomas L. Brejcha , Jr. Thomas More Society 19 South LaSalle Street Suite 603 Chicago, IL 60603 (312)782−1680 Email: tbrejcha@thomasmoresociety.org TERMINATED: 05/12/2014 LEAD ATTORNEY

Jason R. Craddock , Sr. Law Office of Jason R. Craddock 19 S. LaSalle #604 Chicago, IL 60603 (312)629−2818 Email: craddocklaw@att.net ATTORNEY TO BE NOTICED

Peter Christopher Breen Thomas More Society 19 S. LaSalle Suite 603 Chicago, IL 60603 312 782 1680 Email: pbreen@thomasmoresociety.org TERMINATED: 05/12/2014

Samuel B. Casey Jubilee Campaign− Law Of Life Project 801 G. Street, N.w. Suite 521 Washington, DC 20001 (202) 587−5652 Email: sbcasey@lawoflifeproject.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White Kevin E. White & Associates 233 South Wacker Drive Suite 5210 Chicago, IL 60606 (312)606−8602 Email: kwhite@kevinedwardwhiteassociates.com ATTORNEY TO BE NOTICED

Plaintiff
Ozinga Bros., Inc. 19001 Old LaGrange Road Suite 300

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 2 of 11

Mokena, IL 60448

LEAD ATTORNEY

Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014

Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mr. Marty Ozinga IV 19001 Old LaGrange Road Suite 300 Mokena, I 60448

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY

Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014

Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mr. Paul Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY

Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014

Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 3 of 11

Plaintiff Mr. Aaron Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448
Plaintiff Mr. Martin Ozinga, III 19001 Old LaGrange Road Suite 300 Mokena, IL 60448
Plaintiff Mr. Justin Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY
Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED
Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014
Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin E. White (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY
Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED
Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014
Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin E. White (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY
Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED
Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014
Samuel B. Casey (See above for address)

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 4 of 11

PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mr. Jeffrey Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY

Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014

Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mr. Karl Ozinga 19001 Old LaGrange Road Suite 300 Mokena, IL 60448

represented by Thomas L. Brejcha , Jr. (See above for address) TERMINATED: 05/12/2014 LEAD ATTORNEY

Jason R. Craddock , Sr. (See above for address) ATTORNEY TO BE NOTICED

Peter Christopher Breen (See above for address) TERMINATED: 05/12/2014

Samuel B. Casey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin E. White (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Kevin E White

represented by Andy Robert Norman 2115 Rivergrass Court Raleigh, NC 27610 (312) 726−1243 Email: anormanlaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin E. White

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 5 of 11
(See above for address) LEAD ATTORNEY

V. Defendant Kathleen Sebelius In her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant Hon. Jacob J. Lew In his official capacity as Secretary of the U.S. Department of Treasury
Defendant Hon Seth D. Harris In his official capacity as Deputy Secretary of the U.S. Department of Labor

represented by Benjamin Leon Berwick U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Av., NW Suite 7306 Washington, DC 20012 202 305 8573 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 7310 Washington, DC 20530 202 305 8902 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA − Chicago United States Attorney's Office (NDIL − Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA − Chicago (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA − Chicago

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 6 of 11 (See above for address)

Date Filed 05/01/2013
05/01/2013 05/01/2013 05/02/2013 05/02/2013 05/02/2013
05/10/2013 05/15/2013 05/17/2013 05/17/2013 05/17/2013
05/21/2013 05/21/2013 06/06/2013
06/12/2013 07/10/2013 07/10/2013

# Docket Text
1 COMPLAINT filed by Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV, Paul Ozinga, Aaron Ozinga, Martin Ozinga, III, Justin Ozinga, Jeffrey Ozinga, Karl Ozinga; Jury Demand. Filing fee $ 400, receipt number 0752−8302644.(White, Kevin) (Entered: 05/01/2013)
2 CIVIL Cover Sheet (White, Kevin) (Entered: 05/01/2013)
CASE ASSIGNED to the Honorable Thomas M. Durkin. Designated as Magistrate Judge the Honorable Daniel G. Martin. (nsf, ) (Entered: 05/02/2013)
3 ATTORNEY Appearance for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV by Peter Christopher Breen (Breen, Peter) (Entered: 05/02/2013)
4 ATTORNEY Appearance for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV by Thomas L. Brejcha, Jr (Brejcha, Thomas) (Entered: 05/02/2013)
5 ATTORNEY Appearance for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV by Kevin E. White , Kevin Edward White & Associates, (White, Kevin) (Entered: 05/02/2013)
6 MINUTE entry before Honorable Thomas M. Durkin: Status Report due by 7/10/2013. Status hearing set for 7/16/2013 at 09:00 AM. (see order for further detail)Mailed notice (srn, ) (Entered: 05/10/2013)
SUMMONS Issued as to All Defendants, U.S. Attorney (jn, ) (Entered: 05/16/2013)
7 ATTORNEY Appearance for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV by Jason R. Craddock, Sr (Craddock, Jason) (Entered: 05/17/2013)
8 SUMMONS Returned Executed by Aaron Ozinga, Timothy Ozinga, Marty Ozinga IV, Paul Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Ozinga Bros., Inc. as to All Defendants (Craddock, Jason) (Entered: 05/17/2013)
9 AFFIDAVIT of Service filed by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV regarding Complaint served on All Defendants on May 17, 2013 (Craddock, Jason) (Entered: 05/17/2013)
10 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 50, receipt number 0752−8365166. Co−Counsel for Plaintiffs (Casey, Samuel) (Entered: 05/21/2013)
11 MINUTE entry before Honorable Thomas M. Durkin: Samuel B. Casey is granted leave to appear pro hac vice on behalf of all plaintiffs. 10 Mailed notices (gcy, ) (Entered: 05/22/2013)
12 ATTORNEY Appearance for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV by Samuel B. Casey per Pro Hac Vice Order (Casey, Samuel) (Entered: 06/06/2013)
13 ATTORNEY Appearance for Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius by Benjamin Leon Berwick (Berwick, Benjamin) (Entered: 06/12/2013)
14 MOTION by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius for extension of time to file answer regarding complaint, 1 (Berwick, Benjamin) (Entered: 07/10/2013)
15 INITIAL Joint Status Report by All Parties (White, Kevin) (Modified on 7/11/2013 by Clerk's Office) (mb, ). (Entered: 07/10/2013)

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 7 of 11

07/12/2013 07/13/2013 07/13/2013 07/15/2013
07/15/2013 07/15/2013 07/15/2013 07/16/2013
07/16/2013 07/17/2013 07/26/2013 07/30/2013 08/05/2013

16 MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV for preliminary injunction (White, Kevin) (Entered: 07/12/2013)
17 MOTION by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius to stay proceedings and Notice of non−opposition to preliminary injunction (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Triune v. HHS, # 3 Exhibit Monaghan v. Sebelius)(Berwick, Benjamin) (Entered: 07/13/2013)
18 NOTICE of Motion by Benjamin Leon Berwick for presentment of motion to stay, 17 before Honorable Thomas M. Durkin on 7/16/2013 at 09:00 AM. (Berwick, Benjamin) (Entered: 07/13/2013)
19 MEMORANDUM in support of motion for preliminary injunction 17 by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV (Attachments: # 1 Supplement Plaintiff's Mem. Part 2, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D−1, # 6 Exhibit Exhibit D−2, # 7 Exhibit Exhibit D−3, # 8 Exhibit Exhibit D−4, # 9 Exhibit Exhibit D−5, # 10 Exhibit Exhibit E (Proposed Order), # 11 Certificate of Service)(White, Kevin) Modified on 7/17/2013 by Clerk's Office(mb, ). (Entered: 07/15/2013)
20 MEMORANDUM by Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV in Opposition to motion to stay, 17 (White, Kevin) (Entered: 07/15/2013)
21 EXHIBIT D 19 (Tymkovich) (06/27/13) to Plaintiff's Memoranum in Support of Injunction (White, Kevin) Modified on 7/17/2013 by Clerk's Office(mb, ). (Entered: 07/15/2013)
22 EXHIBIT B (Korte) in support of Plainitiffs' Motion for Injunctive Relief (White, Kevin) Modified on 7/17/2013 by Clerk's Office (mb, ). (Entered: 07/15/2013)
23 MINUTE entry before Honorable Thomas M. Durkin:Motion for preliminary injunction 16 is granted. Motion to stay 17 is entered and continued. The Court will rule by mail. Defendants' Motion for extension of time to answer or otherwise plead 14 is granted. If the motion to stay is denied, defendants have 14 days from the date of the Court's ruling to file a responsive pleading. If the Court grants a stay, defendants' response will be due after the stay is lifted. Motion hearing held on 7/16/2013. Mailed notice (srn, ) (Entered: 07/16/2013)
25 PRELIMINARY INJUNCTION ORDER Signed by the Honorable Thomas M. Durkin on 7/16/2013:(mb, ) (Entered: 07/17/2013)
24 REPLY by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius to memorandum in opposition to motion 20 (Attachments: # 1 Exhibit Autocam v. Sebelius)(Berwick, Benjamin) (Entered: 07/17/2013)
26 MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV to file instanter Plaintiffs' Sur−Response Memorandum In Opposition to Defendants Motion for Stay (White, Kevin) (Entered: 07/26/2013)
27 MINUTE entry before Honorable Thomas M. Durkin:Plaintiff's unopposed motion for leave to file instanter their sur−response memorandum in opposition to defendants' motion to stay 26 is granted.Mailed notice (srn, ) (Entered: 07/30/2013)
28 TRANSCRIPT OF PROCEEDINGS held on 7/16/13 before the Honorable Thomas M. Durkin. Court Reporter Contact Information: Laura Renke, laura_renke@ilnd.uscourts.gov, 312.435.6053.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 8 of 11

08/14/2013 09/26/2013 09/26/2013 10/07/2013
10/17/2013
05/09/2014 05/09/2014 05/12/2014 05/05/2015 05/12/2015 06/03/2015 06/23/2015 07/22/2015

Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/5/2013. Release of Transcript Restriction set for 11/4/2013. (Renke, Laura) (Entered: 08/05/2013)
29 ORDER: For the foregoing reasons, the Court grants Defendants' motion to stay 17 . The Court will therefore stay these proceedings until the Seventh Circuit issues a decision in Korte and Grote. Case stayed. Signed by the Honorable Thomas M. Durkin on 8/14/2013:Mailed notice(srn, ) (Entered: 08/14/2013)
30 NOTICE by Thomas L. Brejcha, Jr of Change of Address (Brejcha, Thomas) (Entered: 09/26/2013)
31 NOTICE by Peter Christopher Breen of Change of Address (Breen, Peter) (Entered: 09/26/2013)
32 GENERAL ORDER 13−0018 dated 10/7/13: IT IS HEREBY ORDERED, effective October 1, 2013, that all civil litigation involving as a party the United States of America, is immediately suspended, postponed and held in abeyance continuing for a period of fourteen (14) days from the date of entry of this General Order (For Further Details See Attached Order). Signed by Chief Judge Castillo. (et, ) (Entered: 10/07/2013)
33 GENERAL ORDER 13−0019 dated 10/17/13: IT IS THEREFORE ORDERED, that the stay entered by General Order 13−0018 is hereby lifted, and any and all deadlines in the affected civil litigation (whether established by order, rule, or agreement), including but not limited to any scheduled discovery and pleading dates, are extended by 28 days. The Court warns litigants that this General Order does not purport to affect rights to or deadlines concerning appeal from any decision of this Court. Any litigant affected by this General Order may see relief from the order by motion. Trial dates in the affected cases will stand, although they may need to be adjusted in individual cases to account for the extension of other dates. The Court may, in any particular case, vary the effect or operation of this General Order by a separate ruling. (For Further Details See Attached Order). Signed by Chief Judge Castillo on 10/17/2013 (td, ) (Entered: 10/17/2013)
34 MOTION by counsel for Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV to withdraw as attorney (Breen, Peter) (Entered: 05/09/2014)
35 NOTICE of Motion by Peter Christopher Breen for presentment of motion to withdraw as attorney 34 before Honorable Thomas M. Durkin on 5/22/2014 at 09:00 AM. (Breen, Peter) (Entered: 05/09/2014)
36 MINUTE entry before the Honorable Thomas M. Durkin:Motion to withdraw as attorney 34 is granted; Attorney Peter Christopher Breen and Thomas L. Brejcha, Jr terminated. No appearance required on 5/22/14. Mailed notice (srn, ) (Entered: 05/12/2014)
37 MINUTE entry before the Honorable Thomas M. Durkin: Status hearing set for 5/12/2015 at 09:00 AM.Mailed notice (srn, ) (Entered: 05/05/2015)
38 MINUTE entry before the Honorable Thomas M. Durkin:Status hearing held on 5/12/2015. Status hearing set for 6/3/2015 at 09:00 AM.Mailed notice (srn, ) (Entered: 05/12/2015)
39 MINUTE entry before the Honorable Thomas M. Durkin:Status hearing held on 6/3/2015. Status hearing set for 6/24/2015 at 09:00 AM.Mailed notice (srn, ) (Entered: 06/03/2015)
40 MINUTE entry before the Honorable Thomas M. Durkin:By agreement of the parties the 6/24/15 status date is vacated. Cross opening briefs on the permanent injunction issue are to be filed on or before 7/22/15. Cross responses are due by 8/5/15. The Court will rule by mail. Mailed notice (srn, ) (Entered: 06/23/2015)
41 ATTORNEY Appearance for Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius by Michelle Renee Bennett (Bennett, Michelle) (Entered: 07/22/2015)

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 9 of 11

07/22/2015 07/29/2015
07/30/2015 07/30/2015
08/14/2015 08/14/2015
09/11/2015 09/11/2015 09/16/2015 09/16/2015 09/18/2015
09/30/2015
09/30/2015 11/27/2015

42 MOTION by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius for Entry of Permanent Injunction & Final Judgment (Attachments: # 1 Text of Proposed Order : Defs.' Proposed Injunction & Judgment, # 2 Exhibit : Permanent Injunctions in Other For−Profit Cases)(Bennett, Michelle) (Entered: 07/22/2015)
43 MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga to set a briefing schedule (not opposed), MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga for extension of time (Attachments: # 1 Notice of Motion to Re−Set Briefing Schedule)(White, Kevin) (Entered: 07/29/2015)
44 MINUTE entry before the Honorable Thomas M. Durkin:Plaintiff's motion for extension of time 43 is granted. Plaintiff's opening brief is now due by 7/30/15. Cross responses are due by 8/14/15. Mailed notice (srn, ) (Entered: 07/30/2015)
45 MEMORANDUM by Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV in Opposition to motion for miscellaneous relief, 42 Plaintiffs' Proposed Consent Order (Attachments: # 1 Text of Proposed Order Defendants' Proposed Order, # 2 Text of Proposed Order Plaintiffs' Proposed Order)(White, Kevin) (Entered: 07/30/2015)
46 RESPONSE by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius to memorandum in opposition to motion, 45 (Defs.' Mem. in Opp'n to Pls.' Proposed Permanent Inj. & J.) (Bennett, Michelle) (Entered: 08/14/2015)
47 REPLY by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV to Defendants' Motion for Entry of Permanent Injunction and Final Judgment (Attachments: # 1 Certificate of Service Certificate of Service)(White, Kevin) (Entered: 08/14/2015)
48 NOTICE of Motion by Kevin E. White for presentment of motion for miscellaneous relief, 42 before Honorable Thomas M. Durkin on 9/16/2015 at 09:00 AM. (Attachments: # 1 Certificate of Service)(White, Kevin) (Entered: 09/11/2015)
49 MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV Settlement Conference/ Pre−Trial (White, Kevin) (Entered: 09/11/2015)
50 NOTICE by All Plaintiffs of filing of Fed. R. Civ. P. 28 Supplemental Authority (Attachments: # 1 Exhibit March for Life v. Burwell (D DC), # 2 Certificate of Service Certificate of Service)(White, Kevin) (Entered: 09/16/2015)
51 MINUTE entry before the Honorable Thomas M. Durkin:For the reasons stated orally, plaintiffs' motion for Local Rule 5 settlement conference 49 is denied. Motion hearing held on 9/16/2015. Mailed notice (srn, ) (Entered: 09/16/2015)
52 MOTION by Plaintiffs Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV to amend/correct notice of filing 50 (Attachments: # 1 Exhibit March for Life Opinion, # 2 Exhibit March for Life Order, # 3 Certificate of Service)(White, Kevin) (Entered: 09/18/2015)
53 ORDER: For the foregoing reasons, the Court grants the Defendants' motion for entry of a permanent injunction and final judgment 42 , and grants the Plaintiffs' motion for leave to file supplemental authority 52 . Civil case terminated. Signed by the Honorable Thomas M. Durkin on 9/30/2015:Mailed notice(srn, ) (Entered: 09/30/2015)
54 ORDER Signed by the Honorable Thomas M. Durkin on 9/30/15. Mailed notice (ph, ) (Entered: 10/01/2015)
55 NOTICE of appeal by Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc., Marty Ozinga IV regarding orders 54 Filing fee $ 505, receipt number 0752−11341605. (Attachments: # 1 Certificate of Service Notice of Appeal)(White, Kevin) (Entered: 11/27/2015)

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 10 of 11

11/30/2015 11/30/2015 12/01/2015 12/01/2015 12/01/2015 12/02/2015 12/04/2015
12/09/2015 12/09/2015
02/08/2016
02/09/2016 02/09/2016 04/18/2016
05/13/2016 05/13/2016 05/16/2016
05/31/2016 06/02/2016 06/14/2016

56 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 55 . (smm) (Entered: 11/30/2015)
57 TRANSMITTED to the 7th Circuit the short record on notice of appeal 55 . Notified counsel (smm) (Entered: 11/30/2015)
58 MOTION by Plaintiff Kevin E White for attorney fees (Norman, Andy) (Entered: 12/01/2015)
59 NOTICE of Motion by Andy Robert Norman for presentment of motion for attorney fees 58 before Honorable Thomas M. Durkin on 12/9/2015 at 09:00 AM. (Norman, Andy) (Entered: 12/01/2015)
60 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal, 55 ; USCA Case No. 15−3648 (cc, ) (Entered: 12/02/2015)
61 MEMORANDUM by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius in Opposition to motion for attorney fees 58 (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 12/02/2015)
62 REPLY by Aaron Ozinga, Jeffrey Ozinga, Justin Ozinga, Karl Ozinga, Martin Ozinga, III, Paul Ozinga, Timothy Ozinga, Ozinga Bros., Inc. to memorandum in opposition to motion 61 , MOTION by Plaintiff Kevin E White for attorney fees 58 and other relief (Attachments: # 1 Certificate of Service)(White, Kevin) (Entered: 12/04/2015)
63 ATTORNEY Appearance for Plaintiff Kevin E White by Andy Robert Norman (Norman, Andy) (Entered: 12/09/2015)
64 MINUTE entry before the Honorable Thomas M. Durkin:Plaintiffs' motion for leave for Andy Norman to appear as special attorney's fees counsel for plaintiffs and attorney Kevin E. White is granted. 58 Motion hearing held on 12/9/2015. Plaintiff is to provide the fee petition to the government by 1/13/16. Status hearing set for 2/8/2016 at 09:00 AM.Mailed notice (srn, ) (Entered: 12/09/2015)
65 MINUTE entry before the Honorable Thomas M. Durkin:Status hearing held on 2/8/2016. If the parties are unable to resolve the fee issue, this Court at the next status hearing will set a date for the filing of the fee petition. Status hearing set for 4/18/2016 at 09:00 AM.Mailed notice (srn, ) (Entered: 02/08/2016)
66 NOTICE by Kevin E. White of Change of Address (White, Kevin) (Entered: 02/09/2016)
67 CERTIFICATE of Service by Kevin E. White on behalf of All Plaintiffs regarding notice of change of address 66 (White, Kevin) (Entered: 02/09/2016)
68 MINUTE entry before the Honorable Thomas M. Durkin:Status hearing held on 4/18/2016. Plaintiff's fee petition is to be filed by 5/16/2016. Defendants' response is due by 5/31/2016. Plaintiff's reply is to be filed by 6/14/2016. The Court will rule by mail. Mailed notice (srn, ) (Entered: 04/18/2016)
69 MOTION by Plaintiff Kevin E White for extension of time to file (Norman, Andy) (Entered: 05/13/2016)
70 NOTICE of Motion by Andy Robert Norman for presentment of (Norman, Andy) (Entered: 05/13/2016)
71 MINUTE entry before the Honorable Thomas M. Durkin:Plaintiff's motion for extension of time to file its fee petition 69 is granted. Plaintiff's fee petition is due by 5/31/2016. Defendants' response is due 6/14/2016. Plaintiff's reply is due 6/28/2016. The Court will rule by mail. Mailed notice (srn, ) (Entered: 05/16/2016)
72 PETITION of Plaintiffs for Attorneys Fees, Costs and Expenses (Attachments: # 1 Exhibit Nos. 1−2, # 2 Exhibit Nos. 3−7)(White, Kevin) (Entered: 05/31/2016)
73 PETITION of Plaintiffs for Attorneys Fess Costs and Expenses [Corrected] (Attachments: # 1 Exhibit 1−2, # 2 3−7)(White, Kevin) (Entered: 06/02/2016)
74 RESPONSE by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius to petition 73 (Attachments: # 1 Declaration of Michelle Bennett (with exhibits))(Bennett, Michelle) (Entered: 06/14/2016)

Case: 1:13-cv-3292 As of: 11/02/2017 12:38 PM CDT 11 of 11

06/28/2016 06/28/2016 06/28/2016 06/28/2016 06/29/2016
06/29/2016 06/30/2016
07/01/2016
08/26/2016 08/30/2016 08/30/2016

75 NOTICE of Motion by Andy Robert Norman for presentment of (Norman, Andy) (Entered: 06/28/2016)
76 MOTION by Plaintiff Kevin E White for extension of time to file response/reply (Norman, Andy) (Entered: 06/28/2016)
77 MOTION by Plaintiff Kevin E White to amend/correct (Norman, Andy) (Entered: 06/28/2016)
78 AMENDED (Norman, Andy) (Entered: 06/28/2016)
79 MOTION by Plaintiff Kevin E White for extension of time to file response/reply PLAINTIFFS AMENDED UNCONTESTED MOTION TO EXTEND BY THREE DAYS TO JULY 1, 2016 THE TIME FOR FILING OF PLAINTIFFS REPLY IN SUPPORT OF THEIR FEE PETITION (Norman, Andy) (Entered: 06/29/2016)
80 NOTICE of Motion by Andy Robert Norman for presentment of motion for extension of time to file response/reply, 79 before Honorable Thomas M. Durkin on 7/5/2016 at 09:00 AM. (Norman, Andy) (Entered: 06/29/2016)
81 MINUTE entry before the Honorable Thomas M. Durkin:Plaintiffs' uncontested motion to extend by three days to July 1, 2016 the time for filing of plaintiffs' reply in support of their fee petition 76 79 is granted. Plaintiffs' reply is due by 7/1/2016. No appearance is required on 7/5/2016.Mailed notice (srn, ) (Entered: 06/30/2016)
82 REPLY by Plaintiff Kevin E White PLAINTIFFS REPLY IN SUPPORT OF PETITION FOR ATTORNEY'S FEES, COSTS AND EXPENSES (Attachments: # 1 Exhibit Exhibit 1 Time Box May 31, # 2 Exhibit Exhibit 3 TimeWhite20160601, # 3 Exhibit Exhibit 4 TimeWhite20160531, # 4 Exhibit Exhibit 2 KEWA Invoice 3)(Norman, Andy) (Entered: 07/01/2016)
83 NOTICE to Transmit Record on Appeal regarding notice of appeal, 55 ; USCA Case No. 15−3648 (bg, ) (Entered: 08/29/2016)
84 CERTIFIED and transmitted to the USCA for the 7th Circuit the long record on appeal 55 (USCA no. 15−3648). (smm) (Entered: 08/30/2016)
85 USCA RECEIVED on 8/30/16 the long record regarding notice of appeal 55 . (smm) (Entered: 08/31/2016)