UNITED STATES COURT 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 Department of Labor; 

JACOB J. LEW, in his official capacity 

as Secretary of the United States 

Department of the Treasury; UNITED 

STATES DEPARTMENT OF HEALTH 

AND HUMAN SERVICES; UNITED 

STATES DEPARTMENT OF LABOR; 

UNITED STATES DEPARTMENT OF 

THE TREASURY, 

 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
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PHYSICIANS FOR LIFE; NATIONAL 

ASSOCIATION OF PRO LIFE 

NURSES, 

 Amici Curiae. 

 

ORDER AND JUDGMENT*

 

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

 

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

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

their request for a preliminary injunction to enjoin enforcement of the preventive 

services coverage mandate of the Patient Protection and Affordable Care Act and its 

related regulations. The district court denied the request after concluding that 

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

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

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

not address the other preliminary injunction factors. 

 

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

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

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

is not binding precedent, except under the doctrines of law of the case, res judicata, 

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

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
- 3 - 

 Defendants and plaintiffs now jointly move this court to summarily reverse the 

denial order and remand to the district court to consider the remaining preliminary 

injunction factors in light of our recent en banc decision in Hobby Lobby Stores, Inc. 

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

consideration, we agree that plaintiff Cherry Creek has established a substantial 

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

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

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

with the Hobby Lobby decision. 

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

appeal.

 Entered for the Court 

 Per Curiam