UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

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

Plaintiffs-Appellants,

v.

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

Defendants-Appellees.

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS;AMERICAN ASSOCIATION OF PROLIFE OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; No. 13-1218 (D.C. No. 1:13-CV-00563-RBJ) (D. Colo.) FILED United States Court of Appeals Tenth Circuit


### September 5, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES,

Amici Curiae.

ORDER AND JUDGMENT *

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

Cherry Creek Mortgage Co., Inc. (Che rry Creek) and its owners, managers and

voting shareholders filed an interlocutory a ppeal from the district court’s denial of

their request for a preliminary injunction to enjoin enforcemen t of the preventive

services coverage mandate of the Patient Protection and A ffordable Care Act and its

related regulations. The dist rict court denied the reque st after concluding that

plaintiffs were not likely to succeed on the merits of their underlying complaint,

which alleged that this portion of the Act violated their rights under the Religious

Freedom Restoration Act (RFRA) and the Fi rst Amendment. The district court did

not address the other prelimin ary injunction factors.

* This panel has determined that oral ar gument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1.- 3 - Defendants and plaintiffs now jointly m ove this court to summarily reverse the

denial order and remand to the district c ourt to consider the remaining preliminary

injunction factors in light of our recent en banc decision 

### in Hobby Lobby Stores, Inc.

v. Sebelius , __ F.3d __, 2013 WL 3216103 (10th Cir. June 27, 2013). Upon

consideration, we agree that plaintiff Ch erry Creek has established a substantial

likelihood of success on the merits of its RF RA claim, and that the district court

erred in concluding otherwise. Consequently, we grant the motion for remand,

vacate the district court’s order, and re mand for further proceedings consistent

with the Hobby Lobby decision.

We deny as moot plaintiffs’ request for a motion for injunction pending

appeal.

Entered for the Court Per Curiam