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.

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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 UN ION 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-2- 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 ASSOCI ATION; 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 MEDICA L ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; CATHOLIC MEDICAL A SSOCIATION; EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; ARCHDIOCESE OF DENVER; ARCHDIOCESE OF PUEBLO; ARCHDIOCESE OF COLORADO SPRINGS; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRI ES; 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 JUST ICE FOUNDATION, EAGLE FORUM; BART STUPAK; DEMOCRATS FOR LIFE OF AMERICA; BREAST CANCER PREVENTION INSTITUTE; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION,

Amici Curiae.-3- ORDER AND JUDGMENT *

Before KELLY, LUCERO, and MATHESON, Circuit Judges.

Kathleen Sebelius, Secretary of Depart ment of Health and Human Services (“HHS”), appeals the district court’s or der granting the plaintiffs’ motion for a preliminary injunction barring enforcement of an HHS regulation requiring employerprovided group health plans to cover certain contraceptive dr ugs and services. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.

I. BACKGROUND Hercules Industries, Inc., a for-profit Co lorado corporation, and five of its controlling shareholders and/or officers (collectively, th e “Newlands”) brought suit in Colorado district court seeking an exemp tion from an HHS regulation requiring that employer-provided health plans cover all contraceptive drugs and services approved by the Food and Drug Administration (the “Regul ation”). 45 C.F.R. § 147.130(a). Hercules

* After examining appellant's brief and th e appellate record, and in accord with our order dated August 12, 20 13, this panel has determin ed unanimously that oral argument would not materia lly assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Ci r. R. 34.1(G). The case is th erefore ordered submitted without oral argument. This order and judgment is not binding preceden t, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.-4- 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 th e Regulation substantially burdens their religious exercise in viola tion of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb-1 . The district court grante d the preliminary injunction, and HHS timely appealed. After both parties had filed thei r 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 la w applicable to this case. In Hobby Lobby , two forprofit corporations (collectively, “Hobby Lo bby”) 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 preliminar y injunction, holding that the corporations were “persons” within the meaning of RFRA ; that compliance with the Regulation would substantially burden the corpor ations’ religious exercise; a nd 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 pre liminary injunction factors: (3 ) whether the likely harm to-5- plaintiffs without the preliminary injunctio n outweighed the likel y harm to HHS as a result of the injunction; and (4) whether the in junction 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 weig h in [its] favor: (1) [it] is substantially likely to succeed on the merits; (2) [it] will suffe r irreparable injury if the in junction is denied; (3) [its] threatened injury outweighs th e injury the opposi ng party will suffer under the injunction; and (4) the injunction would not be ad verse to the public interest.” Id. (quotations omitted).

A. Likelihood of Success on the Merits The district court granted a preliminar y injunction without determining whether

Hercules or the Newlands were substan tially likely to succeed on the merits. Newland v.-6- 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 distri ct court may grant a preliminary injunction when “the equities tip strongly in favor” of th e 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 dete rmine 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] compelli ng 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 w ith the Regulation would substan tially 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 clai m 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] woul d satisfy the [Newlands].” Id. Continued . . .-7- Given our decision in Hobby Lobby , Hercules can likely meet all three elements of its RFRA claim. Our precedent holds that Hercules is a “per son” within the meaning of RFRA, the Regulation substan tially 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 th ere is a clear and pres ent 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, Herc ules must show that “the th reatened injury outweighs the harm that the preliminary injuncti on may cause the opposing party.” Greater

______________________________________ Cont. Thus, we need not consider whether the Ne wlands’ individual claims are likely to succeed on the merits.-8- Yellowstone Coalition v. Flowers , 321 F.3d 1250, 1255 (10t h Cir. 2003) (quotations omitted).

The district court stated that the only harm HHS wo uld face from the injunction would be the inability to “enfo rc[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 re lief 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 enforc ing the Regulation was not compelling. Id. at 1143-44. The district court in the pres ent case failed to address th e government’s interests of safeguarding the public health, protecting the statutory rights of affected employees, and ensuring the uniform enforcem ent 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 re manded this issue for further consideration. Id. In the present case, the district court did address this preliminar y injunction factor, so we must review its conclusion for abuse of discretion. See Awad , 670 F.3d at 1125.-9- balance of harms was an abuse of discretion.

D. Public Interest The district court concluded that “public in terest in the free exercise of religion” supported the prelim inary injunction. Newland , 881 F. Supp. 2d at 1295. It considered HHS’s argument that a preliminary injunctio n 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 intere sts. It held that the public interest favors the preliminary injunction. Once again, our review standard is abus e of discretion, which “occurs only when

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

rational basis in the ev idence for the ruling.” Awad , 670 F.3d at 1125 (quotations omitted). The district court applied the correct le gal standard, and the evidence provides a rational basis for the ruling. We therefor e cannot say that it abused its discretion in holding that this preliminary inju nction factor favored Hercules.

III. CONCLUSION

We conclude that the district court di d not abuse its discretion in granting the preliminary injunction to Hercules. We therefore affirm and remand to the district court. Given the pending pe tition for certiorari before the Supreme Court in Hobby Lobby , the

district court is instructed to abate furthe r proceedings until the S upreme Court completes-10- its consideration of the Hobby Lobby case. At that time, the abatement may be lifted and the court may undertake all proceedings necessa ry to resolve the issu es 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