IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI

RANDY REED AUTOMOTIVE, INC.; )

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RANDY REED BUICK GMC, INC.;

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RANDY REED CHEVROLET, LLC;

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RANDY REED NISSAN, LLC; and

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RANDY REED, individually,

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Plaintiffs;

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vs.

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KATHLEEN SEBELIUS,

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in her official capacity as Secretary of the )

United States Department of Health and )

Human Services;

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THOMAS PEREZ,

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in her official capacity as Secretary of the )

United States Department of Labor;

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JACOB LEW,

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in his official capacity as Secretary of the )

United States Department of the Treasury; )

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UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES; )

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UNITED STATES DEPARTMENT OF )

LABOR; and

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UNITED STATES DEPARTMENT OF )

THE TREASURY;

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Defendants.

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Case No. Division:

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VERIFIED COMPLAINT Plaintiffs Randy Reed Automotive, Inc.; Randy Reed Buick GMC, Inc.; Randy Reed Chevrolet, LLC; Randy Reed Nissan, LLC; and Randy Reed, individually (collectively “Plaintiffs”) by and through counsel, state as follows:
INTRODUCTION 1. Plaintiffs have a deeply held religious belief that life begins at conception/fertilization. Therefore, for many years, they have instructed their insurance carrier not to include coverage for the voluntary termination of pregnancies in the company’s health insurance plan for employees. The Plaintiffs understood this to prohibit coverage of abortioninducing drugs that prevent implantation of an embryo. The Patient Protection and Affordable Care Act (“ACA”), however, requires that in its health care plan for employees Plaintiffs include coverage for items that induce early abortions by preventing the implantation of an embryo after conception/fertilization. 2. The ACA authorized Defendants the Department of Heather and Human Services (“HHS”) and its Secretary to develop a mandate that includes early abortion-inducing items under the category of preventive services for women (“Mandate”)1. The mandate is enforced by Defendants the Departments of HHS, Labor and Treasury and their respective Secretaries.
1 The Mandate consists of a conglomerate of authorities, including: “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act,” 77 Fed. Reg. 8725–30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011) which the Feb. 15 rule adopted “without change”; the guidelines by Defendant HHS’s Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/, mandating that health plans include no-cost-sharing coverage of “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” as part of required women’s “preventive care”; regulations issued by
[Footnote continued on next page]
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3. The Mandate illegally and unconstitutionally requires Plaintiffs to violate their religious beliefs by forcing them to provide abortion-inducing items, such as “Plan B” (the socalled “morning after pill”), Ella (the so-called “week after pill”), and inta-uterine devices (“IUDs”). The Mandate subjects the company to heavy fines and penalties if it chooses not to violate those beliefs. Defendants’ coercion tramples on the freedom of conscience, freedom of religious exercise, and freedom of speech of Plaintiffs and their owners.
4. Plaintiffs seek declaratory and injunctive relief for the Defendants’ violations of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 500, et seq., (“APA”) via 5 U.S.C. § 700, et seq., (allowing for judicial review of APA violations), by Defendants’ actions in implementing the ACA in ways that coerce the Plaintiffs to engage in acts that they consider sinful and immoral in violation of their most deeply held religious beliefs.
5. Plaintiffs urgently need relief from this court. Absent an injunction issued forthwith, Plaintiffs will be forced to include abortion-inducing items in their health insurance plan in violation of their religious beliefs.
IDENTIFICATION OF PARTIES
[Footnote continued from previous page] Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4) requiring unspecified preventive health services generally, to the extent Defendants have used it to mandate coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of ACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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6. Plaintiff Randy Reed Automotive, Inc., a Missouri corporation (herein “Randy Reed”), has its principal place of business at 9550 NW Prairie View Rd., Kansas City, MO 64153.
7. Plaintiff Randy Reed Buick GMC, Inc., has its principal place of business at 9550 NW Prairie View Rd., Kansas City, MO 64153.
8. Plaintiff Randy Reed Chevrolet, LLC, has its principal place of business at 3921 Frederick Ave., St. Joseph, MO 64506.
9. Plaintiff Randy Reed Nissan, LLC, has its principal place of business at 9600 NW Prairie View Rd., Kansas City, MO 64153.
10. Plaintiff Randy Reed is principal shareholder and managing member of all named corporate and LLC entities.
11. By virtue of his ownership, directorship, and officer positions, Plaintiff Randy Reed is responsible for implementing Plaintiffs’ compliance with Defendants’ Mandate.
12. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
13. Defendant Kathleen Sebelius is the Secretary of the United States Department of HHS. In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
14. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
15. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
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16. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
17. Defendant Jacob Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
18. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
JURISDICTION AND VENUE 19. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). The United States Defendants are located in this district.
FACTUAL ALLEGATIONS 21. Plaintiff Randy Reed is a practicing and believing Christian. 22. He strives to follow Christian ethical beliefs and religious and moral teachings throughout his life, including in his operation of his business entities, including the named Plaintiffs.
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23. Plaintiff Randy Reed sincerely believes that his Christian faith does not allow him to violate the Bible’s religious and moral teachings in his operating decisions regarding the Plaintiffs.
24. Plaintiff Randy Reed further believes that his operation of Plaintiff companies must be guided by ethical social principles and Christian religious and moral teachings, that individuals must operate their businesses according to the God-ordained ethics, religious and moral teachings of the Bible, and, that his faith prohibits him to sever his religious beliefs from his daily business practice, and that his Christian faith requires him to integrate the gifts of the spiritual life, the virtues, morals, and ethical social principles of Christian teaching into his life and work.
25. Plaintiff Randy Reed believes that the Bible teaches that abortifacient drugs, contraception and sterilization are intrinsic evils.
26. As a matter of religious faith the Plaintiffs believe that those Christian teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.
27. Consequently, Plaintiffs believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, sterilization, and related education and counseling, as would be required by the Mandate, through their inclusion in the health benefits paid for by Plaintiffs.
28. Under Randy Reed’s direction, the Plaintiffs contribute to charitable, religious, and educational organizations, including those that advance spiritual, moral and ethical teachings consistent with the Bible. Plaintiffs particularly support pro-life groups that uphold the Bible’s
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teachings concerning abortion. Plaintiffs have donated over $100,000.00 to charitable, pro-life causes since the formation of the first entity.
Plaintiffs’ Health Insurance Plans 29. As part of fulfilling their organizational mission and Christian and charitable
beliefs and commitments, Plaintiffs provide generous health insurance for their employees. 30. Plaintiffs have approximately 179 full-time employees. 31. Plaintiffs maintain three group plans through Coventry Insurance Group
(hereinafter “Coventry”) for their employees. 32. The plan year for Plaintiffs’ plans begins on January 1 of each year, with the next
plan year starting on January 1, 2014. 33. Consistent with Plaintiffs’ religious commitments, Plaintiff Randy Reed, manager
of all operations and primary shareholder, instructed his providers to exclude abortifacient drugs, contraception or sterilization; however, it appears that Coventry included those mandates in the plans in direct contradiction to Mr. Reed’s beliefs and instructions.
34. To implement the plan for the year beginning January 1, 2014, Plaintiffs must make insurance coverage decisions and logistical arrangements on or by November 1, 2014.
35. Pursuant to their sincerely held religious beliefs, Plaintiffs believe that life begins at conception/fertilization and that any method that functions to prevent or disrupt implantation of a fertilized human embryo is morally wrong and results in the wrongful taking of a human life.
36. Pursuant to Plaintiffs’ religious beliefs, they seek to carve out the offensive mandates from the plan upon renewal January 1, 2014, specifically, to exclude any means of “voluntary termination of pregnancy.”
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37. Pursuant to Plaintiffs’ religious beliefs, they have consistently instructed its insurance carrier not to include services related to the voluntary termination of a pregnancy in the their health insurance plans, despite the fact that their insurance agent secured plans renewing January 1, 2013, that included such services.
38. In making this demand, Plaintiffs’ intent was to ensure that, among other things, abortifacient items, such as Plan B, ella, and IUDs would not be covered.
39. Plaintiffs learned in July 2013 that the “voluntary termination of pregnancy” exclusion did not include certain abortifacient items because some insurance carriers include such items under the category of contraceptives, which Plaintiffs’ plans generally covered. This led Plaintiff Randy Reed to look into his plans more carefully. Until that time, Plaintiffs were unaware that these abortifacient items were being covered by their plan and believed they were not. Mr. Reed then discovered that his original requests were not complied with, including the exclusion of other services for “voluntary termination of pregnancy.”
40. Upon learning this information, Plaintiffs immediately voiced their religious objection to the inclusion of these abortion-inducing items in its plan and requested that they be removed from the plan forthwith.
41. Plaintiffs’ insurance carrier responded by informing them that it, like all other insurance carriers, was required to comply with the Mandate and that Plaintiffs’ plans, both now and continuing with the January 1, 2014, renewal, would therefore include the abortion-inducing items to which Plaintiffs religiously object.
42. Plaintiffs immediately explored its options to seek an injunction against enforcement of the Mandate, which other religious employers have successfully secured, before the start of its next plan year.
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43. The need for injunctive relief to issue is immediate. 44. Absent an injunction, on January 1, 2014, Plaintiffs will be forced to continue to include abortion-inducing items in their health insurance plan in violation of their religious beliefs. 45. If Plaintiffs receive an injunction, they can obtain a plan that omits abortifacient items. The ACA and Defendants’ Mandate Thereunder 46. Under the ACA, employers with over 50 full-time employees are required to provide a certain minimum level of health insurance to their employees. 47. Many such plans must include “preventive services,” which must be offered with no cost-sharing by the employee. 48. On February 10, 2012, the Department of Health and Human Services finalized a rule (previously referred to in this Complaint as “the Mandate”) that imposes a definition of preventive services to include all FDA-approved “contraceptive” items, surgical sterilization, and education and counseling for such services. 49. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate. 50. In the category of “FDA-approved contraceptives” included in the Mandate are several drugs or devices that may cause the demise of an already-conceived but not-yetimplanted human embryo, such as “emergency contraception” or “Plan B” drugs (the so-called “morning after” pill) as well as IUDs.
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51. The FDA approved in this same “contraception” category a drug called “ella” (the so-called “week after” pill), which studies show can function to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
52. The manufacturers of some such drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early human embryo.
53. The Defendants admit that Plan B, ella, and IUDs can function in part to cause the demise of the embryo after its fertilization and before its implantation.
54. The Mandate also requires applicable group health care plans to pay for the provision of counseling, education, and other information for all women beneficiaries who are capable of bearing children concerning and in support of covered devices and drugs, including Plan B, Ella, and IUDs that cause early abortions or harm to human embryos.
55. The Mandate applies to Plaintiff’s January 1, 2013, to December 31, 2013 health insurance plan year.
56. An entity cannot escape the Mandate by self-insuring. 57. Absent relief from this Court, Plaintiffs are subject to the Mandate’s requirement of coverage of the above-described items continuing with their January 1, 2014 plans. 58. Plaintiffs have a sincere and deeply-held religious objection to providing coverage for abortifacients and related education and counseling in their health insurance plans. 59. Plaintiffs cannot in good conscience violate their religious beliefs by providing coverage for emergency contraception, IUDs, or counseling or education in furtherance of the same, in their health insurance plans, both now and continuing with their January 1, 2014, plan year.
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60. The Mandate therefore imminently threatens to impose its heavy penalties, fines, and lawsuits against Plaintiffs in violation of the beliefs and rights of Plaintiffs and their owners.
61. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Plaintiffs and their owners, who object to paying for or providing insurance coverage for such items.
62. An entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the ACA imposes monetary penalties on entities that would so refuse.
63. The exact magnitude of these penalties may vary according to the complicated provisions of the ACA, but the fine is approximately $2,000 per employee per year for employers.
64. In addition, if Plaintiffs dropped insurance for their employees, such an action would not only harm such employees, but it would harm Plaintiffs financially and it would harm their ability to retain and attract qualified employees.
65. The ACA also threatens monetary penalties against Plaintiffs for continuing to offer its insurance plan but continuing to omit abortifacients.
66. The exact magnitude of these penalties may vary according to the complicated provisions of the ACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
67. If Plaintiffs do not submit to the Mandate then they also trigger a range of enforcement mechanisms, including but not limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries under ERISA, which would include but not be limited to
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relief in the form of judicial orders mandating that Plaintiffs violate their and their owner’s sincerely held religious beliefs by providing coverage for items to which they religiously object.
68. The lawsuit penalties that the Mandate triggers under ERISA are in no way speculative since Defendants Secretary Perez and the Department of Labor intend to fully and imminently enforce the Mandate against Plaintiffs.
69. The Mandate applies not only to employers, but also to issuers of insurance. Accordingly, Plaintiffs cannot avoid the Mandate by shopping for an insurance plan that accommodates their right of conscience, because Defendants have intentionally foreclosed that possibility.
70. The Mandate does not apply equally to all religious adherents or groups. 71. The Mandate offers the possibility of a narrow exemption to religious employers, but only if it “is a church, an integrated auxiliary of a church, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A).” 72. Plaintiffs does not qualify under this definition because it is not a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order. 73. The ACA and the Mandate grant unbridled discretion to the government to create or modify this “religious employer” definition. 74. The ACA and the Mandate grant unbridled discretion to the government to give exemptions to some, all, or none of the organizations meeting the Mandate’s four-part definition of “religious employers” or any future definition.
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75. The Mandate picks and chooses among religions, religious believers and religious doctrines, including on the issue of what constitutes religion and religious exercise.
76. The Mandate is not neutral towards religion because it allows exemptions based on religious criteria, and it refuses those exemptions to Plaintiffs.
77. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Plaintiffs and its owners, even though those rights were repeatedly raised in public comments against the Mandate’s regulations.
78. The Mandate requires that Plaintiffs provide coverage for abortifacient methods, and education and counseling related to the same, in violation of the religious beliefs of Plaintiffs and its owners, in a manner that is contrary to law.
79. The Mandate constitutes government-imposed coercion on Plaintiffs and their owners to change or violate their sincerely held religious beliefs.
80. The Mandate exposes Plaintiffs to draconian fines and other penalties for refusal to change or violate its and its owners’ religious beliefs.
81. The Mandate will impose a burden on Plaintiffs employee recruitment and retention efforts by creating uncertainty as to whether or on what terms they will be able to continue offering health insurance due to the prospect of suffering penalties as a result of the Mandate.
82. The Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate employees.
83. Plaintiffs have already expended considerable time and expense determining the application of the Mandate against its religious beliefs and its options in relation thereto.
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84. Unless relief issues from this Court, Plaintiffs are forced to take the Mandate into account now as it plans expenditures, including employee contracts, compensation and benefits packages, as well as potential government fines and lawsuits, for the January 1, 2014, plan year and into the future.
85. The ACA and the Mandate are not generally applicable because they provide for numerous exemptions from their rules.
86. For instance, the Mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption.
87. In addition, as described above, the Mandate exempts certain churches and religious orders narrowly considered to be religious employers. Plaintiffs do not meet this exemption.
88. The Mandate also offers an “accommodation” to certain non-profit entities, which causes payments for the mandated items in ways that are different than the application of the Mandate to Plaintiffs, and in ways that Defendants claim do not require the non-profit entities to arrange, refer, contract or pay for the coverage. This “accommodation” is not available to Plaintiffs because they are not non-profit entities.
89. Furthermore, the ACA creates a system of individualized exemptions because under the ACA’s authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons.
90. Also, the ACA and its Mandate do not force employers having fewer than 50 fulltime employees to provide a health insurance plan to its employees at all.
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91. Defendants have also unilaterally suspended or delayed portions of the ACA such as certain employer reporting requirements. This demonstrates that Defendants have unfettered discretion to decide not to apply their rules in circumstances they consider appropriate, and that Defendants are content to allow some women to not receive the Mandated coverage from their employers. This delay does not benefit Plaintiffs, however, since they already offers generous health insurance and dropping that plan would be harmful both to Plaintiffs and to their employees.
92. Additionally, the Mandate does not apply to employers with preexisting plans that are “grandfathered.”
93. Plaintiffs’ plans are not grandfathered under ACA, nor will their plan year starting on January 1, 2014, have grandfathered status.
94. Plaintiffs’ plans lacks grandfathered status because, inter alia, the facts described in the following few paragraphs deprive the plan of such status according to the Defendants’ regulations governing grandfathered status.
95. Plaintiffs redesigned their plans with Coventry effective January 1, 2011, to reduce premiums and deductibles, therefore improving the benefits to their employees.
96. For example, Humana, the prior provider, requested a 9.4% increase in premiums on its base plan and a 10% increase on its buy up plan. The move to Aetna (now its Health Insurance subsidiary Coventry) resulted in a 8.23% decrease in premiums from the 2010 Humana rates. Additionally, deductibles were decreased from $1500.00 to $1000.00, with maximum out-of-pocket from $3500.00 to $3000.00 for individual coverage.
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97. Due to the January 1, 2011, changes stated above, all the Plaintiffs offered health insurance plans lack grandfathered status, despite the fact that benefits to employees have improved and not diminished.
98. Neither Plaintiffs nor their plan administrator provided a disclosure to plan participants that the plans possessed grandfathered status under ACA (because the plans do not possess such status).
99. According to the government’s statistics, tens of millions of American women in 2013 will be covered under plans where, because they possess grandfathered status, the ACA and Defendants do not subject those plans to the requirements of the Mandate.
100. Despite Defendants’ and the ACA’s choice not to impose the Mandate and its required items on tens of millions of American women in grandfathered plans, Defendants refuse to allow Plaintiffs’ plans with fewer than 300 employees to be exempt from the Mandate.
101. On February 10, 2012, a document was issued from the Center for Consumer Information and Insurance Oversight (CCIIO), Centers for Medicare & Medicaid Services (CMS), of HHS, entitled “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code.”
102. Under this “Guidance,” an organization that truthfully declares “I certify that the organization is organized and operated as a non-profit entity; and that, at any point from February 10, 2012 onward, contraceptive coverage has not been provided by the plan, consistent with any applicable State law, because of the religious beliefs of the organization,” and that
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provides a specified notice to plan participants, will not “be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connection with such plans),” until “the first plan year that begins on or after August 1, 2013.”
103. The February 10, 2012 “safe harbor” was recently extended so that it encompasses plans beginning before January 1, 2014.
104. The February 10, 2012 “Guidance” and its recent extension categorically disqualifies Plaintiffs from making use of this “extra year and a half” because, among other reasons, they are not non-profit entities and further because they object only to the provision of abortifacient contraceptives.
105. On August 15, 2012, in response to litigation against the Mandate that illustrated the February 10, 2012 press conference “Guidance” was sloppily drafted and omitted a variety of organizations, Defendants used their unfettered discretion over the Mandate to issue yet another version of the “safe harbor” Guidance.
106. Under the August 15, 2012 “Guidance,” employers who object to some but not all contraception could be covered, but the “safe harbor” was still limited to non-profit entities.
107. Thus the August 15, 2012 “Guidance” also continues to categorically disqualify Plaintiffs from making use of this “extra year” because, among other reasons, they are not nonprofit entities.
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108. Through their “safe harbor” Guidances, Defendants have essentially granted what they consider to be the equivalent of preliminary injunctions to potentially hundreds or thousands of non-profit corporate entities that possess exactly the same objection that Plaintiffs possess.
109. If Plaintiffs qualified for the “safe harbor,” Defendants would not enforce the Mandate against Plaintiffs until the beginning of its January 1, 2014, plan year.
110. The ACA and the Mandate confer unfettered discretion upon Defendants to create and modify rules such as the Guidances with respect to their categorization and treatment of religious entities.
111. The Mandate, Defendants’ “Guidances,” their multiple federal regulations on this Mandate, and their four-part “religious employer” definition in its various changing forms, all omit Plaintiffs from any protection from the Mandate, despite Plaintiffs and their owners desire to operate Plaintiffs according to their sincerely held religious beliefs.
112. Therefore, while President Obama’s and Defendants’ ever-changing “compromises” purport to accommodate the religious beliefs of a variety of groups, none of these measures will stop the Mandate from being imposed on Plaintiffs January 1, 2014, plan year.
113. Any alleged interest Defendants have in providing free FDA-approved abortifacient contraception and related education and counseling without cost-sharing could be advanced through other, more narrowly-tailored mechanisms that do not burden the religious beliefs of Plaintiffs and its owners and do not require them to provide or facilitate coverage of such items through Plaintiffs’ health plan.
114. The federal government provides massive coverages and subsidies of contraception for women who cannot afford it, without forcing their employers to participate.
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115. Unless relief issues from this Court, the Mandate directly and imminently threatens Plaintiffs with its draconian penalties.
116. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief, Plaintiffs and its owners are suffering and will continue to suffer irreparable harm.
117. Plaintiffs and its owners have no adequate remedy at law. FIRST CLAIM FOR RELIEF
Violation of the Religious Freedom Restoration Act 42 U.S.C. § 2000bb
118. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference.
119. Plaintiffs’ and their owners’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, including “emergency contraception” and IUDs and related education and counseling, in Plaintiffs’ employee health plans.
120. When Plaintiffs and their owners comply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion within the meaning of the Religious Freedom Restoration Act.
121. The Mandate imposes a substantial burden on Plaintiffs and their owners’ religious exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject to penalties and harm to their property and livelihood.
122. The Mandate chills Plaintiffs and their owners’ religious exercise within the meaning of RFRA.
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123. The Mandate exposes Plaintiffs to lawsuits, substantial fines, and financial burdens, and pressures Plaintiffs and their owners by threatening their property and livelihood based on their religious exercise.
124. The Mandate exposes Plaintiffs to substantial competitive disadvantages because of uncertainties about Plaintiffs’ health insurance benefits caused by the Mandate.
125. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
126. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
127. The Mandate violates RFRA. WHEREFORE, Plaintiffs pray for the relief set forth below.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 128. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference. 129. Plaintiffs’ and their owners’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, including “emergency contraception” and IUDs and related education and counseling, in Plaintiffs’ employee health plans. 130. When Plaintiffs and their owners comply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion pursuant to the Free Exercise Clause. 131. The Mandate is not neutral and is not generally applicable.
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132. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
133. The Mandate furthers no compelling governmental interest. 134. Defendants have conceded the lack of a compelling interest in the Mandate by virtue of their and ACA’s voluntary exclusion and exemption of millions of Americans from the Mandate’s coverage. 135. The Mandate is not the least restrictive means of furthering Defendants’ purported interests. 136. The Mandate chills Plaintiffs’ and their owners’ religious exercise. 137. The Mandate exposes Plaintiffs to lawsuits, substantial fines, and financial burdens, and pressures Plaintiffs and their owners by threatening their property and livelihood based on their religious exercise. 138. The Mandate exposes Plaintiffs to substantial competitive disadvantages because of uncertainties about Plaintiffs’ health insurance benefits caused by the Mandate. 139. The Mandate imposes a substantial burden on Plaintiffs’ and their owners’ religious exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject to penalties and harm to their property and livelihood. 140. The Mandate is not narrowly tailored to any compelling governmental interest. 141. By design, Defendants framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 142. Defendants have created exemptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and their religious exercise.
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143. Defendants designed the Mandate, the religious employer exemption thereto, and the “compromise” and guidance allowances thereto, in a way that makes it impossible for Plaintiffs and other similar religious Americans to comply with their sincerely held religious beliefs.
144. Defendants promulgated both the Mandate and the religious exemption/allowances with the purpose and intent to suppress the religious exercise of Plaintiffs and its owners and other religious Americans.
145. The Mandate violates Plaintiffs’ and their owners’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
WHEREFORE, Plaintiffs pray for the relief set forth below. THIRD CLAIM FOR RELIEF
Violation of the Establishment Clause of the First Amendment to the United States Constitution 146. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference. 147. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 148. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits hostility to religious beliefs. 149. The Mandate discriminates against and among religions in refusing to accommodate or exempt a company that follows religious beliefs, while exempting or accommodating others. 150. The Mandate violates Plaintiffs’ and its owners’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
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WHEREFORE, Plaintiffs pray for the relief set forth below. FOURTH CLAIM FOR RELIEF
Violation of the Free Speech Clause of the First Amendment to the United States Constitution
151. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference.
152. Defendants’ requirement of provision of insurance coverage for education and counseling regarding abortifacient drugs and devices such as “emergency contraception” and IUDs forces Plaintiffs and their owners to speak and fund speech in a manner contrary to their religious beliefs.
153. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
154. The Mandate violates Plaintiffs’ and their owners’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
WHEREFORE, Plaintiffs pray for the relief set forth below. FIFTH CLAIM FOR RELIEF
Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 155. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference. 156. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Plaintiffs and its owners and other parties not before the Court. 157. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner.
23 Case 5:13-cv-06117-ODS Document 1 Filed 10/08/13 Page 23 of 26

158. The ACA and the Mandate vest Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations, in crafting “religious employer” exemptions and changing the same, in crafting and modifying further “accommodations” and additional definitions of entities that qualify for the same, and in enforcing the Mandate and crafting rules regarding the same such as through its repeatedly issued enforcement “Guidances.”
159. The Mandate is an unconstitutional violation of Plaintiffs’ and their owners’ due process rights under the Fifth Amendment to the United States Constitution.
WHEREFORE, Plaintiffs pray for the relief set forth below. SIXTH CLAIM FOR RELIEF
Violation of the Administrative Procedure Act 160. Plaintiffs reallege all matters set forth in paragraphs 1–117 and incorporates them herein by reference. 161. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments to the U.S. Constitution. 162. The Mandate is also contrary to the provisions of the ACA which states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A). Some items included as “FDA-approved contraceptives” under the Mandate cause abortions by causing the demise of human embryos before and/or after implantation. By Executive Order, this provision prohibits Defendants from requiring abortion in Trijicon’s plan. 163. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that
24 Case 5:13-cv-06117-ODS Document 1 Filed 10/08/13 Page 24 of 26

“[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
164. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
165. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, Plaintiffs pray for the relief set forth below. PRAYER FOR RELIEF
Plaintiffs respectfully requests the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and their insurer, and others similarly situated but not before the Court, to be an unconstitutional and illegal violation of Plaintiffs’, its owners’, and others’ rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them;
25 Case 5:13-cv-06117-ODS Document 1 Filed 10/08/13 Page 25 of 26

B. That this Court enter a preliminary and a permanent injunction and declaratory relief prohibiting the Mandate from being applied to or considered applicable to Plaintiffs and their plans and others similarly situated but not before the Court in a way that substantially burdens the religious beliefs of Plaintiffs and their owners, or any person, in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs and others not before the Court by requiring them to provide or cause to be provided health insurance coverage for abortifacients, contraception, sterilization and related education and counseling to employees of entities they own or operate;
C. That this Court award Plaintiffs court costs and reasonable attorney’s fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988);
D. That this Court grant such other and further relief as to which Plaintiffs may be entitled.
Plaintiffs demand a jury on all issues so triable.

Respectfully submitted this

day of

, 2013.

Attorneys for Plaintiffs:

Dale Schowengerdt, Esq. ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 ALLIANCE DEFENDING FREEDOM (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org dschowengerdt@alliancedefendingfreedom.org

s/ Kevin M. Smith

_

Kevin Mark Smith

(Kansas Bar No. 19242)

Law Offices of Kevin M. Smith, P.A.

1502 N. Broadway

Wichita, KS 67214

316-262-2331

316-262-8862 (facsimile)

kmsmith@acelaw.net

26 Case 5:13-cv-06117-ODS Document 1 Filed 10/08/13 Page 26 of 26

 
 LAW OFFICE OF KEVIN M. SMITH, P.A. Kevin M. Smith, KS. 19242 1502 N. Broadway Wichita, KS 67214 316-262-2331 316-262-8862 (facsimile) kmsmith@acelaw.net
ALLIANCE DEFENDING FREEDOM Dale Schowengerdt, Mo. 65305 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile)
ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI

RANDY REED AUTOMOTIVE, INC., et al.

)

)

Plaintiffs;

)

v.

)

Case No. 13-cv-06117-REL

)

KATHLEEN SEBELIUS, et al.,

)

Defendants.

)

)

MOTION FOR PRELIMINARY INJUNCTION Comes now the Plaintiff, Randy Reed Automotive, Inc., et al (collectively “Plaintiff”), by and through counsel, Kevin Mark Smith and Dale Schowengerdt, on this, the 15th day of November, 2013, pursuant to the First and Fourth Amendments to the United States Constitution, and moves the Court to issue a Preliminary Injunction against the Defendants staying enforcement of the mandate concerning abortifacients, contraception, and sterilization in the Affordable Care Act (77 Fed. Reg. 8725 (Feb. 15, 2012)).

1 Case 5:13-cv-06117-ODS Document 14 Filed 11/15/13 Page 1 of 3

In support of said motion, Plaintiff contends that all named litigants are closely-
held organizations with a single shareholder, Randy Reed, owning 100% of the entities,
who has a sincerely held religious belief prohibiting him from paying for abortifacients,
contraception, and sterilization in the health care plans he provides to his employees, and
that the relevant section in the Affordable Care Act that mandates such coverage is a
violation of the First Amendment to the United States Constitution, as well as the
Religious Freedom and Restoration Act (RFRA), 42 U.S.C. 2000bb-1. Plaintiff also contends that the issues here are similar to other cases wherein the 8th Circuit Court of
Appeals has already issued injunctive relief similar to what the instant Plaintiff requests.
WHEREFORE for the above reasons, Plaintiff moves the court to issue a
preliminary injunction against the Defendant staying enforcement of the mandate
concerning abortifacients, contraception, and sterilization in the Affordable Care Act,
prior to resolution of similar cases pending before the United States Supreme Court.
Respectfully submitted, s/ Kevin M. Smith
LAW OFFICE OF KEVIN M. SMITH, P.A. 1502 N. Broadway Wichita, KS 67214 316-262-2331 316-262-8862 (facsimile) kmsmith@acelaw.net
and
ALLIANCE DEFENDING FREEDOM Dale Schowengerdt, Mo. Bar No. 65305 dale@alliancedefendingfreedom.org 15192 Rosewood Leawood, KS 66224 (913) 685-8000
2 Case 5:13-cv-06117-ODS Document 14 Filed 11/15/13 Page 2 of 3

(913) 685-8001 (facsimile)
ATTORNEYS FOR PLAINTIFFS
Certificate of Service
The undersigned hereby certifies that he is an attorney at law and is a person of such age and discretion as to be competent to serve process. That on November 15, 2013, he caused to be served a copy of above motion via email to:
Michelle R. Bennett, Asst. U. S. Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch, Michelle.Bennett@usdoj.gov
Additionally, that on November 18, 2013 he caused to be served a copy of the foregoing by placing said copy in the U.S Mail:
Eric H. Holder, Jr. U.S. Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Kathleen Sebelius, U.S. Depart. of Health & Human Services 200 Independence Avenue, SW Washington, DC 20201
Thomas Perez, U.S. Department of Labor 200 Constitution Ave., NW Washington, DC 20210
Jacob Lew, U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220
Tammy Dickenson, U.S. Attorney, Western District of Missouri, Charles Evans Whittaker Courthouse U.S. Attorney's Office, Room 5510, 400 East 9th Street Kansas City, MO 64106
Respectfully submitted, s/ Kevin M. Smith
LAW OFFICE OF KEVIN M. SMITH, P.A. Kevin M. Smith, KS. 19242 1502 N. Broadway Wichita, KS 67214 316-262-2331 316-262-8862 (facsimile) kmsmith@acelaw.net
3 Case 5:13-cv-06117-ODS Document 14 Filed 11/15/13 Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

____________________________________

)

RANDY REED AUTOMOTIVE, INC., )

et al.

)

)

Plaintiffs,

)

)

v.

)

Case No. 5:13-CV-06117-ODS

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

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

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

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

(8th Cir. Feb. 1, 2012), granting injunctions pending appeal in cases similar to this one

challenging the contraceptive coverage regulations, defendants write to inform the Court that

they do not oppose plaintiffs’ Motion for Preliminary Injunction, ECF No. 14, only on their

Religious Freedom Restoration Act (RFRA) claim, to last until 30 days after the mandate issues

in O’Brien or Annex Medical, whichever occurs first. In light of the pending appeals and

defendants’ non-opposition to a preliminary injunction until the appeal in O’Brien or Annex

Medical is resolved, defendants move to stay all proceedings in this case until such time.

For the reasons stated in defendants’ oppositions to plaintiffs’ motions for preliminary

injunctions in O’Brien and Annex Medical, see Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for

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

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

Case 5:13-cv-06117-ODS Document 16 Filed 11/15/13 Page 1 of 5

cv-02804-DSD-SER (D. Minn. Dec. 12, 2012), ECF No. 17, as well as the district courts’ decisions denying preliminary relief in those cases, see O’Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo.); Annex Medical, Inc. v. Sebelius, No. 12-cv-02804-DSD-SER, 2013 WL 203526 (D. Minn. Jan. 17, 2013), defendants do not believe that plaintiffs are likely to succeed on the merits of any of their claims, and believe that the decisions of the motions panels in O’Brien and Annex Medical were incorrect. Furthermore, the decisions of the motions panels in O’Brien and Annex Medical are not binding on this Court. See In re Rodriquez, 258 F.3d 757, 759 (8th Cir. 2001); see also United States v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008); Lambert v. Blackwell, 134 F.3d 506, 513 n.17 (3d Cir. 1997). Nonetheless, defendants acknowledge that, even if this Court were to agree with defendants and deny plaintiffs’ request for a preliminary injunction, plaintiffs would likely then seek an injunction pending appeal, which would likely be granted for the reasons already articulated by the motions panels in O’Brien and Annex Medical. See Annex Medical, No. 13-1118, Order at 5-6 (8th Cir. Feb. 1, 2012) (granting plaintiffs’ motion for an injunction pending appeal, “consistent with the O’Brien order,” because “there is a significant interest in uniform treatment of comparable requests for interim relief within this circuit”). Therefore, defendants do not oppose the entry of preliminary injunctive relief in favor of plaintiffs based on their RFRA claim at this time, to last until 30 days after the mandate issues from the Eighth Circuit in O’Brien or Annex Medical, whichever occurs first, to give the Court and the parties sufficient time to assess the impact of the Eighth Circuit’s ruling on this case.1
Defendants also respectfully ask this Court to stay all proceedings in this case pending the resolution of the appeals in O’Brien and Annex Medical. Plaintiffs do not oppose this request.
1 A proposed order is attached for the Court’s convenience. 2
Case 5:13-cv-06117-ODS Document 16 Filed 11/15/13 Page 2 of 5

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes of its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). In the O’Brien and Annex Medical appeals, the Eighth Circuit will be addressing legal issues that are substantially similar to those presented in this case, involving facts that are analogous to those in this case, challenging the same regulations that are challenged in this case, and raising claims that are also largely indistinguishable from those in this case brought against the same defendants as those in this case. Thus, even if the Eighth Circuit’s ruling does not entirely dispose of this case, the outcome of the appeals is likely to substantially affect the outcome of this litigation, and the Court and the parties will undoubtedly benefit from the Eighth Circuit’s views.
If this case is not stayed, defendants will file a motion to dismiss the case for failure to state a claim. This motion will raise many of the same legal issues that are likely to be addressed by the Eighth Circuit. It would be highly inefficient to spend the resources and time of the parties and this Court for litigation to proceed on these issues simultaneously in both courts. See Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008) (“[T]he district court has broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants.”). Nor will there be any prejudice to plaintiffs if the proceedings are stayed, as they will have the benefit of a preliminary injunction during the pendency of the stay.
Finally, defendants note that several district courts – including the district court in Annex Medical – have stayed proceedings in similar circumstances in litigation challenging the
3 Case 5:13-cv-06117-ODS Document 16 Filed 11/15/13 Page 3 of 5

contraceptive coverage regulations. See, e.g., Order, Annex Medical, Inc. v. Sebelius, No. 12-cv-

02804-DSD-SER (D. Minn. Jan. 25, 2013), ECF No. 53; Order, Korte v. Sebelius, No. 3:12-cv-

01072 (S.D. Ill. Dec. 28, 2012), ECF No. 63; Order, Conestoga Wood Specialties, Corp. v.

Sebelius, No. 5:12-cv-06744 (E.D. Pa. Jan. 16, 2013), ECF No. 55.

For these reasons, defendants ask this Court to stay all proceedings in this case until 30

days after the mandate issues from the Eighth Circuit in O’Brien or Annex Medical, whichever

occurs first.

Respectfully submitted this 15th day of November, 2013,

STUART F. DELERY Principal Deputy Assistant Attorney General

TAMMY DICKINSON United States Attorney

JENNIFER RICKETTS Director

SHEILA M. LIEBER Deputy Director

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT (CO Bar No. 37050)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue N.W. Room 7310

Washington, D.C. 20530

Tel: (202) 305-8902

Fax: (202) 616-8470

Email: michelle.bennett@usdoj.gov

Attorneys for Defendants

4 Case 5:13-cv-06117-ODS Document 16 Filed 11/15/13 Page 4 of 5

CERTIFICATE OF SERVICE I hereby certify that on November 15, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT

5 Case 5:13-cv-06117-ODS Document 16 Filed 11/15/13 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

____________________________________

)

RANDY REED AUTOMOTIVE, INC., )

et al.

)

)

Plaintiffs,

)

)

v.

)

Case No. 5:13-CV-06117-ODS

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

[PROPOSED] ORDER

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

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

motion and orders as follows:

Defendants are hereby ENJOINED, until 30 days after the mandate issues from the

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

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

Randy Reed Automotive, Inc.; Randy Reed Buick GMC, Inc.; Randy Reed Chevrolet, LLC;

Randy Reed Nissan, LLC; or their employee health plan(s) or insurer(s).

All proceedings in this case are stayed until 30 days after the mandate issues from the

Eighth Circuit in O’Brien or Annex Medical, whichever occurs first.

IT IS SO ORDERED.

Date: ____________________

__________________________________ The Honorable Ortrie D. Smith

Case 5:13-cv-06117-ODS Document 16-1 Filed 11/15/13 Page 1 of 1

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

RANDY REED AUTOMOTIVE, INC., )

et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

KATHLEEN SEBELIUS, et al,

)

)

Defendants

.

)

Case No. 13-6117-CV-SJ-ODS

ORDER GRANTING (1) MOTION FOR PRELIMINARY INJUNCTION AND (2) MOTION TO STAY PROCEEDINGS

Pending is Plaintiffs’ Motion for Preliminary Injunction, which seeks to enjoin enforcement of the Affordable Care Act’s mandates regarding health insurance coverage for abortifacients, contraception, and sterilization. Defendants responded with a Consent Motion to Stay Proceedings and Notice of Non-Opposition to Plaintiffs’ Motion for Preliminary Injunction. The combination of these motions expresses Defendants’ agreement to the entry of a preliminary injunction “only with respect to the Religious Freedom Restoration Act (RFRA) claim” that lasts until thirty days after the Eighth Circuit issues its Mandates in two cases raising similar RFRA claims. Since the filing of these motions, the Supreme Court has granted Writs of Certiorari in two cases that implicate the same issues: Sebelius v. Hobby Lobby Stores, Inc., No. No. 13-354, and Conestoga Wood Specialties Corp. v. Sebelius, No. 13-356.
Given the parties’ agreement and the Supreme Court’s subsequent actions, the Court grants both parties’ motions (Doc. # 14 and Doc. # 16). Defendants are preliminarily enjoined from enforcing the Affordable Care Act’s mandates regarding health insurance coverage for abortifacients, contraception, and sterilization. All proceedings in this case are stayed. However, instead of staying the case only until

the Eight Circuit’s Mandates are issued, the stay shall last until thirty days after the Supreme Court issues its ruling in the aforementioned cases.
IT IS SO ORDERED.

/s/ ORTRIE DATE: December 3, 2013

Ortrie D. Smith D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

RANDY REED AUTOMOTIVE, INC., )

et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

SYLVIA BURWELL, et al,

)

)

Defendants.

)

Case No. 13-6117-CV-SJ-ODS

ORDER In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon consideration of the parties’ motions, it is hereby: ORDERED that Defendants, their employees, agents, officers and successors in office are enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require Plaintiffs Randy Reed Automotive, Inc.; Randy Reed Buick-GMC, Inc.; Randy Reed Nissan, LLC; and Randy Reed Chevrolet, LLC (“Randy Reed Companies”) to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which Plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and
(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and
(b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement

against Plaintiffs Randy Reed Companies, their employee health plan(s), the group health coverage provided in connection with such plan(s), and/or the Randy Reed Companies’ health insurance issuers and/or third-party administrators with respect to the Randy Reed Companies’ health plan(s); and it is further
ORDERED that judgment is entered in favor of Plaintiffs and against Defendants on Plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further
ORDERED that all other claims against Defendants are DISMISSED; and it is further
ORDERED that any motion by Plaintiffs for attorneys’ fees pursuant to 42 U.S.C. § 1988(b) may be filed within 45 days after entry of judgment and Defendants shall have 30 days in which to respond to Plaintiffs’ motion; and it is further
ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents Plaintiffs from filing a new civil action to challenge any such future changes.

IT IS SO ORDERED.

DATE: November 12, 2014

/s/ Ortrie D. Smith ORTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

2

 
 CLOSED,MAPN
U.S. District Court Western District of Missouri (St. Joseph) CIVIL DOCKET FOR CASE #: 5:13−cv−06117−ODS

Randy Reed Automotive, Inc. et al v. Sebelius et al Assigned to: District Judge Ortrie D. Smith Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 10/08/2013 Date Terminated: 11/12/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Diversity

Randy Reed Automotive, Inc.

represented by Kevin Mark Smith Kevin Mark Smith 15334 Hendryx Ct Goddard, KS 67052 316−729−7745 Email: 4acelaw@sbcglobal.net (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin H. Theriot Alliance Defending Freedom 15100 N 90th St Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: ktheriot@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale Schowengerdt Alliance Defending Freedom 15192 Rosewood Street Leawood, KS 66224 (913) 302−0270 Fax: (888) 599−0733 Email: dale.adf@gmail.com TERMINATED: 09/16/2014 ATTORNEY TO BE NOTICED

Plaintiff Randy Reed Buick−GMC, Inc.

represented by Kevin Mark Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin H. Theriot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale Schowengerdt (See above for address) TERMINATED: 09/16/2014 ATTORNEY TO BE NOTICED

Plaintiff

Randy Reed Nissan, LLC

represented by Kevin Mark Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:13-cv-6117 As of: 11/09/2017 12:19 PM CST 1 of 5

Plaintiff Randy Reed Chevrolet, LLC
Plaintiff Randy Reed individually

Kevin H. Theriot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale Schowengerdt (See above for address) TERMINATED: 09/16/2014 ATTORNEY TO BE NOTICED
represented by Kevin Mark Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin H. Theriot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale Schowengerdt (See above for address) TERMINATED: 09/16/2014 ATTORNEY TO BE NOTICED
represented by Kevin Mark Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin H. Theriot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale Schowengerdt (See above for address) TERMINATED: 09/16/2014 ATTORNEY TO BE NOTICED

V. Defendant Sylvia Burwell in her official capacity as Secretary of the United States Department of Health and Human Services
Defendant Thomas E Perez in his official capacity as Secretary of the United States Department of Labor

represented by Michelle Bennett United States Department of Justice−DC 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 305−8902 Fax: (202) 616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:13-cv-6117 As of: 11/09/2017 12:19 PM CST 2 of 5

Defendant Jacob J. Lew in his official capacity as Secretary of the United States Department of the Treasury Defendant U.S. Department of Labor
Defendant U.S. Department of Health and Human Services
Defendant U.S. Department of the Treasury

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

Date Filed 10/08/2013 10/09/2013 10/09/2013
10/09/2013 10/10/2013 10/11/2013 10/11/2013 10/16/2013

# Docket Text
1 COMPLAINT against All Defendants filed by Kevin Mark Smith on behalf of All Plaintiffs Service due by 2/8/2014. (Attachments: # 1 Civil Cover Sheet)(Smith, Kevin) Modified on 10/11/2013− filing fee receipt KCMO034707 (Chorny, Traci). (Entered: 10/08/2013)
NOTICE OF MAGISTRATE ASSIGNMENT emailed to counsel for Plaintiffs. This is a docket entry only. No document is attached. Magistrate Return due by 11/4/2013 (Chorny, Traci) (Entered: 10/09/2013)
2 NEW NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NEW NOTICE AND NEW MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.
Notice of MAP assignment to an outside mediator. (Attachments: # 1 MAP General Order)(Chorny, Traci) (Entered: 10/09/2013)
3 ORDER directing Clerk of the Court to randomly assign case to an Article III District Court Judge for all further proceedings. Signed on 10/09/13 by Magistrate Judge Robert E. Larsen. (Suroff, Rebecca) (Entered: 10/09/2013)
4 NOTICE OF REASSIGNMENT from Magistrate Judge Robert E. Larsen to District Judge Ortrie D. Smith. (Chorny, Traci) (Entered: 10/10/2013)
RECEIPT number KCMO034707 in the amount of $400.00 issued to Kevin M. Smith. (Chorny, Traci) (Entered: 10/11/2013)
5 DISCLOSURE OF CORPORATE INTERESTS filed by Kevin Mark Smith on behalf of Plaintiffs Randy Reed Automotive, Inc., Randy Reed Buick−GMC, Inc., Randy Reed Chevrolet, LLC, Randy Reed Nissan, LLC, Randy Reed.(Smith, Kevin) (Entered: 10/11/2013)
SUMMONS ISSUED as to Jacob J. Lew, Thomas E Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury, U.S. Attorney and U.S. Attorney General (Chorny, Traci) (Entered: 10/16/2013)

Case: 5:13-cv-6117 As of: 11/09/2017 12:19 PM CST 3 of 5

11/05/2013
11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/15/2013 11/15/2013
11/15/2013
12/03/2013 07/15/2014 08/18/2014 08/18/2014

6 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. Jacob J. Lew served on 10/21/2013, answer due 12/20/2013; Thomas E Perez served on 10/21/2013, answer due 12/20/2013; Kathleen Sebelius served on 10/21/2013, answer due 12/20/2013; U.S. Department of Health and Human Services served on 10/21/2013, answer due 12/20/2013; U.S. Department of Labor served on 10/21/2013, answer due 12/20/2013; U.S. Department of the Treasury served on 10/21/2013, answer due 12/20/2013. (Smith, Kevin) (Entered: 11/05/2013)
7 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. U.S. Department of Labor served on 10/22/2013. (Smith, Kevin) (Entered: 11/05/2013)
8 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. U.S. Department of Health & Human Services served on 10/22/2013. (Smith, Kevin) (Entered: 11/05/2013)
9 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. Eric Holder, United States Attorney General served on 10/22/2013. (Smith, Kevin) (Entered: 11/05/2013)
10 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. Jacob Lew, U.S. Dept. of the Treasury served on 10/23/2013. (Smith, Kevin) (Entered: 11/05/2013)
11 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. Thomas Perez, U.S. Dept. of the Treasury served on 10/22/2013. (Smith, Kevin) (Entered: 11/05/2013)
12 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. Kathleen Sebelius, U.S. Dept. of Health & Human Services served on 10/22/2013. (Smith, Kevin) (Entered: 11/05/2013)
13 RETURN OF SERVICE of complaint executed by Randy Reed Automotive, Inc.. U.S. Dept. of the Treasury served on 10/23/2013. (Smith, Kevin) (Entered: 11/05/2013)
14 MOTION for preliminary injunction filed by Kevin Mark Smith on behalf of All Plaintiffs. Suggestions in opposition/response due by 12/2/2013 unless otherwise directed by the court. (Smith, Kevin) (Entered: 11/15/2013)
15 NOTICE of appearance by Michelle Bennett on behalf of All Defendants (Attorney Michelle Bennett added to party Jacob J. Lew(pty:dft), Attorney Michelle Bennett added to party Thomas E Perez(pty:dft), Attorney Michelle Bennett added to party Kathleen Sebelius(pty:dft), Attorney Michelle Bennett added to party U.S. Department of Health and Human Services(pty:dft), Attorney Michelle Bennett added to party U.S. Department of Labor(pty:dft), Attorney Michelle Bennett added to party U.S. Department of the Treasury(pty:dft))(Bennett, Michelle) (Entered: 11/15/2013)
16 Consent MOTION to stay proceedings and Notice of Non−Opposition to Plaintiffs' Motion for Preliminary Injunction (ECF No. 14) filed by Michelle Bennett on behalf of All Defendants. Suggestions in opposition/response due by 12/2/2013 unless otherwise directed by the court. (Attachments: # 1 Proposed Order)(Bennett, Michelle) (Entered: 11/15/2013)
17 ORDER GRANTING (1) MOTION FOR PRELIMINARY INJUNCTION AND (2) MOTIONTO STAY PROCEEDINGS entered by Judge Ortrie D. Smith. (Matthes, Renea) (Entered: 12/03/2013)
18 ORDER lifting stay and directing parties to file joint status report. A Joint Status Report setting forth their agreement or their separate positions shall be filed on or before August 18, 2014. Signed on July 15, 2014, by District Judge Ortrie D. Smith. (Melvin, Greg) (Entered: 07/15/2014)
19 STATUS REPORT (Joint) by Sylvia Burwell, Jacob J. Lew, Thomas E Perez, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury. (Bennett, Michelle) (Entered: 08/18/2014)
20 ORDER (1) CONTINUING PRELIMINARY INJUNCTION AND (2) DIRECTING PARTIES TO FILE JOINT STATUS REPORT. Signed on 8/18/14 by District Judge Ortrie D. Smith. (Matthes, Renea) (Entered: 08/18/2014)

Case: 5:13-cv-6117 As of: 11/09/2017 12:19 PM CST 4 of 5

09/15/2014 09/16/2014 09/22/2014 09/23/2014 10/16/2014
10/16/2014 10/22/2014
10/30/2014
11/08/2014 11/12/2014 11/12/2014

21 MOTION to substitute attorney Kevin Theriot for Dale Schowengerdt filed by Dale Schowengerdt on behalf of All Plaintiffs. Suggestions in opposition/response due by 10/2/2014 unless otherwise directed by the court. (Schowengerdt, Dale) (Entered: 09/15/2014)
22 ORDER granting 21 motion to substitute attorney. Attorney Dale Schowengerdt terminated, Attorney Kevin Theriot added as counsel for Randy Reed Plaintiffs. Signed on 9/16/14 by District Judge Ortrie D. Smith. This is a TEXT ONLY ENTRY. No document is attached.(Wolfe, Steve) (Entered: 09/16/2014)
23 STATUS REPORT (Joint) by Sylvia Burwell, Jacob J. Lew, Thomas E Perez, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury. (Bennett, Michelle) (Entered: 09/22/2014)
24 ORDER (1) Continuing Preliminary Injunction and (2) Directing Parties to File Proposed Injunction and Judgment. Signed on 9/23/14 by District Judge Ortrie D. Smith. (Wolfe, Steve) (Entered: 09/23/2014)
25 NOTICE of filing Defs.' Proposed Injunction and Judgment, and Suggestions in Support Thereof by Sylvia Burwell, Jacob J. Lew, Thomas E Perez, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury re 24 Order (Attachments: # 1 Proposed Injunction and Judgment)(Bennett, Michelle) (Entered: 10/16/2014)
26 MOTION for order Permanent Injunction filed by Kevin Mark Smith on behalf of All Plaintiffs. Suggestions in opposition/response due by 11/3/2014 unless otherwise directed by the court. (Smith, Kevin) (Entered: 10/16/2014)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 10/16/2014 as Document No. 25−1, Proposed Injunction and Judgment. The proposed order has been deleted. Per Administrative Procedures any proposed orders are to be emailed to the Courtroom Deputy in Word or WordPerfect format. This is a text entry only − no document is attached. (Martin, Jan) (Entered: 10/22/2014)
27 SUGGESTIONS in opposition re 26 MOTION for order Permanent Injunction filed by Michelle Bennett on behalf of Defendants Sylvia Burwell, Jacob J. Lew, Thomas E Perez, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury. Reply suggestions due by 11/17/2014 unless otherwise directed by the court (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 26 ) (Bennett, Michelle) (Entered: 10/30/2014)
28 REPLY SUGGESTIONS to motion re 26 MOTION for order Permanent Injunction filed by Kevin Mark Smith on behalf of Plaintiffs Randy Reed Automotive, Inc., Randy Reed Buick−GMC, Inc., Randy Reed Chevrolet, LLC, Randy Reed Nissan, LLC, Randy Reed. (Related document(s) 26 ) (Smith, Kevin) (Entered: 11/08/2014)
29 ORDER granting Injunction. Signed on 11/12/14 by District Judge Ortrie D. Smith. (Matthes, Renea) (Entered: 11/12/2014)
30 CLERK'S JUDGMENT (Matthes, Renea) (Entered: 11/12/2014)

Case: 5:13-cv-6117 As of: 11/09/2017 12:19 PM CST 5 of 5