UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

WILLIAM NEWLAND; PAUL NEWLAND; 

JAMES NEWLAND; CHRISTINE 

KETTERHAGEN; ANDREW NEWLAND; 

HERCULES INDUSTRIES, INC., a Colorado 

corporation, 

 Plaintiffs - Appellees, 

v. 

KATHLEEN SEBELIUS, in her official 

capacity as Secretary of the United States 

Department of Health and Human Services; 

HILDA SOLIS, in her official capacity as 

Secretary of the United States Department of 

Labor; TIMOTHY GEITHNER, 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 - Appellants. 

----------------------------------------- 

AMERICANS UNITED FOR SEPARATION 

OF CHURCH AND STATE; UNION FOR 

REFORM JUDAISM; CENTRAL 

CONFERENCE OF AMERICANS RABBIS; 

WOMEN OF REFORM JUDAISM; HINDU 

AMERICAN FOUNDATION; AMERICAN 

CIVIL LIBERTIES UNION; AMERICAN 

CIVIL LIBERTIES UNION OF COLORADO; 

No. 12-1380

(D.C. No. 1:12-CV-01123-JLK) 

(D. Colo.) 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 3, 2013

Elisabeth A. Shumaker 

Clerk of Court
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ANTI-DEFAMATION LEAGUE; 

HADASSAH, THE WOMEN'S ZIONIST 

ORGANIZATION OF AMERICA, INC.; 

INTERFAITH ALLIANCE FOUNDATION; 

NATIONAL COUNCIL OF JEWISH 

WOMEN; RELIGIOUS COALITION FOR

REPRODUCTIVE CHOICE; UNITARIAN 

UNIVERSALIST ASSOCIATION; UNITARIAN 

UNIVERSALIST WOMEN'S FEDERATION; 

LIBERTY, LIFE AND LAW FOUNDATION; 

AMERICAN CENTER FOR LAW AND 

JUSTICE; ASSOCIATION OF AMERICAN 

PHYSICIANS & SURGEONS; AMERICAN 

ASSOCIATION OF PRO-LIFE 

OBSTETRICIANS AND GYNECOLOGISTS; 

CHRISTIAN MEDICAL ASSOCIATION; 

NATIONAL CATHOLIC BIOETHICS CENTER; 

PHYSICIANS FOR LIFE; NATIONAL 

ASSOCIATION OF PRO LIFE NURSES; 

CATHOLIC MEDICAL ASSOCIATION; EAGLE 

FORUM EDUCATION & LEGAL DEFENSE 

FUND; ARCHDIOCESE OF DENVER; 

ARCHDIOCESE OF PUEBLO; ARCHDIOCESE 

OF COLORADO SPRINGS; ASSOCIATION OF 

GOSPEL RESCUE MISSIONS; PRISON 

FELLOWSHIP MINISTRIES; ASSOCIATION 

OF CHRISTIAN SCHOOLS INTERNATIONAL; 

NATIONAL ASSOCIATION OF 

EVANGELICALS; ETHICS & RELIGIOUS 

LIBERTY COMMISSION OF THE SOUTHERN 

BAPTIST CONVENTION; INSTITUTIONAL 

RELIGIOUS FREEDOM ALLIANCE; THE C12 

GROUP; CHRISTIAN LEGAL SOCIETY; 

UNITED STATES JUSTICE FOUNDATION, 

EAGLE FORUM; BART STUPAK; 

DEMOCRATS FOR LIFE OF AMERICA; 

BREAST CANCER PREVENTION 

INSTITUTE; BIOETHICS DEFENSE FUND; 

LIFE LEGAL DEFENSE FOUNDATION, 

 Amici Curiae. 
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ORDER AND JUDGMENT*

 

Before KELLY, LUCERO, and MATHESON, Circuit Judges. 

Kathleen Sebelius, Secretary of Department of Health and Human Services 

(“HHS”), appeals the district court’s order granting the plaintiffs’ motion for a 

preliminary injunction barring enforcement of an HHS regulation requiring employerprovided group health plans to cover certain contraceptive drugs and services. Exercising 

jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm. 

I. BACKGROUND

Hercules Industries, Inc., a for-profit Colorado corporation, and five of its 

controlling shareholders and/or officers (collectively, the “Newlands”) brought suit in 

Colorado district court seeking an exemption from an HHS regulation requiring that 

employer-provided health plans cover all contraceptive drugs and services approved by 

the Food and Drug Administration (the “Regulation”). 45 C.F.R. § 147.130(a). Hercules 

 

* After examining appellant's brief and the appellate record, and in accord with 

our order dated August 12, 2013, this panel has determined unanimously that oral 

argument would not materially assist the determination of this appeal. See Fed. R. App. 

P. 34(a)(2) and 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. 
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and the Newlands contend that compliance with the Regulation would violate their 

sincerely held religious beliefs about contraceptives. 

The plaintiffs sought a preliminary injunction barring HHS from enforcing the 

Regulation against them, claiming that the Regulation substantially burdens their 

religious exercise in violation of the Religious Freedom Restoration Act of 1993 

(“RFRA”), 42 U.S.C. § 2000bb-1. The district court granted the preliminary injunction, 

and HHS timely appealed. 

After both parties had filed their briefs, this court decided Hobby Lobby v. 

Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). That case involved materially similar 

facts and resolved questions of law applicable to this case. In Hobby Lobby, two forprofit corporations (collectively, “Hobby Lobby”) and their individual owners challenged 

the same Regulation on RFRA grounds. This court reversed an Oklahoma district court’s 

denial of Hobby Lobby’s request for preliminary injunction, holding that the corporations 

were “persons” within the meaning of RFRA; that compliance with the Regulation would 

substantially burden the corporations’ religious exercise; and that the Regulation was not 

narrowly tailored to achieve a compelling interest. Id. at 1121, 1128, 1142-43. 

The en banc court therefore determined that the Hobby Lobby plaintiffs had 

satisfied two of the four preliminary injunction factors: (1) they were substantially likely 

to succeed on the merits of their RFRA claim, id. at 1145; and (2) they would suffer 

irreparable injury without the injunction, id. at 1146. We remanded to the district court to 

consider the remaining two preliminary injunction factors: (3) whether the likely harm to 
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plaintiffs without the preliminary injunction outweighed the likely harm to HHS as a 

result of the injunction; and (4) whether the injunction was adverse to the public interest. 

Id. at 1121-22, 1146; see also Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012) 

(reciting the preliminary injunction factors). 

HHS has filed a petition for certiorari with the Supreme Court, seeking review of 

our Hobby Lobby decision. Petition for Writ of Certiorari, Sebelius v. Hobby Lobby, No. 

13-354 (U.S. Sept. 19, 2013). This petition remains pending as of the date of this order 

and judgment. For the reasons discussed below, we affirm the district court’s preliminary 

injunction order and remand with instructions to abate further proceedings pending the 

Supreme Court’s completion of its consideration of the Hobby Lobby case. 

II. DISCUSSION

We review a district court’s decision to grant a preliminary injunction for abuse of 

discretion. See Awad, 670 F.3d at 1125. “To obtain a preliminary injunction, [Hercules] 

must show that four factors weigh in [its] favor: (1) [it] is substantially likely to succeed 

on the merits; (2) [it] will suffer irreparable injury if the injunction is denied; (3) [its] 

threatened injury outweighs the injury the opposing party will suffer under the injunction; 

and (4) the injunction would not be adverse to the public interest.” Id. (quotations 

omitted). 

A. Likelihood of Success on the Merits

The district court granted a preliminary injunction without determining whether 

Hercules or the Newlands were substantially likely to succeed on the merits. Newland v. 
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Sebelius, 881 F. Supp. 2d 1287, 1296-97 (D. Colo. 2012). It applied a relaxed 

preliminary injunction standard that allows relief without a showing of likelihood of 

success. Under the relaxed standard, a district court may grant a preliminary injunction 

when “the equities tip strongly in favor” of the party seeking the injunction and the merits 

questions “are so serious, substantial, difficult, and doubtful as to make the issue ripe for 

litigation and deserving of more deliberate investigation.” Id. at 1294 (quoting Okla. ex 

rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 

2006)). It is not necessary for us to determine whether the relaxed standard applies 

because, as we explain below, our decision in Hobby Lobby resolves the likelihood of 

success factor in Hercules’s favor. 

Under RFRA, the government may not “substantially burden a person’s exercise 

of religion” unless it shows that the law or regulation “is the least restrictive means of 

furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1. To succeed on 

the merits of its RFRA claim, Hercules must show that (1) it is a person protected under 

RFRA; (2) compliance with the Regulation would substantially burden its religion; and 

(3) HHS cannot show that the Regulation is the least restrictive means to meet a 

compelling government interest.1

 

 1

 In this case and in Hobby Lobby, individual and corporate plaintiffs raised the 

same claims. In Hobby Lobby, this court resolved the RFRA claim as to the corporate 

plaintiffs without reaching the individual plaintiffs’ claims. See 723 F.3d at 1126 n.4. 

“[T]here is no dispute that relief as to [Hercules] would satisfy the [Newlands].” Id. 

Continued . . . 
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Given our decision in Hobby Lobby, Hercules can likely meet all three elements of 

its RFRA claim. Our precedent holds that Hercules is a “person” within the meaning of 

RFRA, the Regulation substantially burdens its religious exercise, and the Regulation 

fails to satisfy strict scrutiny. See Hobby Lobby, 723 F.3d at 1121, 1128, 1142-43. 

B. Irreparable Harm

The district court concluded that Hercules made a strong showing that “the injury 

complained of is of such imminence that there is a clear and present need for equitable 

relief to prevent irreparable harm.” Newland, 881 F. Supp. 2d at 1294 (emphasis 

omitted) (quotations omitted). 

This court concluded in Hobby Lobby that the harm to the corporations’ religious 

liberties as a result of forced compliance with the mandate was irreparable and met this 

preliminary injunction factor. See 723 F.3d at 1146. Given that decision, we cannot say 

the district court abused its discretion in making the same conclusion as to Hercules. 

C. Balance of Harms

The district court held that the balance of harms tipped in favor of Hercules. To 

succeed on this third factor, Hercules must show that “the threatened injury outweighs the 

harm that the preliminary injunction may cause the opposing party.” Greater 

______________________________________ 

Cont. 

Thus, we need not consider whether the Newlands’ individual claims are likely to 

succeed on the merits. 
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Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1255 (10th Cir. 2003) (quotations 

omitted). 

The district court stated that the only harm HHS would face from the injunction 

would be the inability to “enforc[e] regulations that Congress found [to be in] the public 

interest” and that this harm “pale[d] in comparison to the possible infringement upon 

[Hercules’s] constitutional and statutory rights.” Newland, 881 F. Supp. 2d at 1295 

(quotations omitted).2

 

We may reverse only if the district court’s conclusion was an abuse of discretion. 

See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 394 (2006) (“[T]he decision whether 

to grant or deny injunctive relief rests within the equitable discretion of the district 

courts.”). We recognized in Hobby Lobby the considerable importance of a corporation’s 

religious liberty interests. See Hobby Lobby, 723 F.3d at 1145-46. Hobby Lobby also 

concluded that HHS’s interest in enforcing the Regulation was not compelling. Id. at 

1143-44. 

The district court in the present case failed to address the government’s interests of 

safeguarding the public health, protecting the statutory rights of affected employees, and 

ensuring the uniform enforcement of health care and employment regulations. We 

cannot say, however, in light of the Hobby Lobby decision, that its conclusion on the 

 2

 In Hobby Lobby, neither the district court nor this court resolved this preliminary 

injunction factor. 723 F.3d at 1121. We remanded this issue for further consideration. 

Id. In the present case, the district court did address this preliminary injunction factor, so 

we must review its conclusion for abuse of discretion. See Awad, 670 F.3d at 1125.
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balance of harms was an abuse of discretion. 

D. Public Interest

The district court concluded that “public interest in the free exercise of religion” 

supported the preliminary injunction. Newland, 881 F. Supp. 2d at 1295. It considered 

HHS’s argument that a preliminary injunction would harm Congress’s public interest 

goals of “improving the health of women . . . and equalizing the coverage of preventive 

services for women and men.” Id. (quotations omitted). But the district court reasoned 

that the current regulations exempting many employers, such as small businesses, from 

the Regulation dilute these interests. It held that the public interest favors the preliminary 

injunction. 

Once again, our review standard is abuse of discretion, which “occurs only when 

the trial court bases its decision on an erroneous conclusion of law or where there is no 

rational basis in the evidence for the ruling.” Awad, 670 F.3d at 1125 (quotations 

omitted). The district court applied the correct legal standard, and the evidence provides 

a rational basis for the ruling. We therefore cannot say that it abused its discretion in 

holding that this preliminary injunction factor favored Hercules. 

III.CONCLUSION

We conclude that the district court did not abuse its discretion in granting the 

preliminary injunction to Hercules. We therefore affirm and remand to the district court. 

Given the pending petition for certiorari before the Supreme Court in Hobby Lobby, the 

district court is instructed to abate further proceedings until the Supreme Court completes 
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its consideration of the Hobby Lobby case. At that time, the abatement may be lifted and 

the court may undertake all proceedings necessary to resolve the issues remaining before 

it. Finally, appellees' motion to hear this matter with the Hobby Lobby proceeding is 

denied as moot. 

ENTERED FOR THE COURT 

Scott M. Matheson, Jr. 

Circuit Judge