Armstrong et al v. Sebelius et al

Filing 50

ORDER Plaintiffs have moved for an order reversing this Courts order of May 10, 2013, and therefore granting a preliminary injunction as requested, in light of the en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013). See Order for Details, by Judge R. Brooke Jackson on 8/1/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-00563-RBJ
W.L. (BILL) ARMSTRONG;
JEFFREY S. MAY;
WILLIAM L. (WIL) ARMSTRONG III;
JOHN A. MAY;
DOROTHY A. SHANAHAN; and
CHERRY CREEK MORTGAGE CO., INC.,
a Colorado corporation,
Plaintiffs,
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 Treasury;
UNITED STATES DEPARTMENT OF HEALTH
AND HUMAN SERVICES;
UNITED STATES DEPARTMENT OF LABOR; and
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

ORDER

Plaintiffs have moved for an order reversing this Court’s order of May 10, 2013, and
therefore granting a preliminary injunction as requested, in light of the en banc decision in
Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3216103 (10th Cir. June 27, 2013). Defendants
oppose the motion on two grounds. First, they suggest that Hobby Lobby is factually
distinguishable from this case. Second, they note that the majority in Hobby Lobby only

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resolved the first two elements of a preliminary injunction (likelihood of success on the merits
and irreparable injury), and that the case therefore was remanded to the trial court to address the
other two elements (balance of equities, public interest). They suggest that in this case, as in
Hobby Lobby, those two elements were not expressly addressed by the trial court. Plaintiffs have
not submitted a reply.
This Court did make it clear that it intended to follow the lead of the Tenth Circuit en
banc panel once its decision was reached. I also note that on remand Judge Heaton addressed the
two elements, resolved them against the government, and entered a preliminary injunction in
plaintiffs’ favor. Hobby Lobby Stores, Inc. v. Sebelius, no. CIV-12-1000-HE, 2013 WL 3869832
(W.D. Okla. July 19, 2013). The government’s counsel in the present case served as the
government’s counsel on remand in Hobby Lobby. The government’s opposition to plaintiffs’
pending motion in the present case was filed the day before Judge Heaton’s order was issued. I
do not know whether this affects the government’s thinking on the pending motion here.
Assuming that the government wishes to press its opposition to the entry of a preliminary
injunction, the Court directs both parties, as promptly as possible and in any event no later than
14 days from this date, to address the following questions:
1. Does the plaintiffs’ pending appeal in the present case deprive this Court of
jurisdiction to enter the injunction as requested? See, e.g., State of Colorado v. Idarado Mineral
Co., 916 F.2d 1486, 1490 n.2 (10th Cir. 1990). See also Pinson v. Pacheco, 424 F. App’x 749,
754 (10th Cir. 2011); Fairchild Semiconductor Corp. v. Third Dimension, no. 2009-1168, 2009
WL 790105, at *1 (Fed. Cir. March 25, 2009). The only reference to this issue in the motion and
response is the plaintiffs’ reference to Fed. R. Civ. P. 62(c).

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2. If this Court can address the issue, where in the record of this case does the Court find
evidence relevant to the two unaddressed factors? If there is no evidence in the record, on what
basis can this Court decide these issues without another hearing as was the case with Judge
Heaton?
DATED this 1st day of August, 2013.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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