Little Sisters of the Poor Home for the Aged, Denver, Colorado et al v. Kathleen Sebelius et al

Filing 61

USCA ORDER denying 54 Emergency Motion for Preliminary Injunction pending appeal on 12/31/13.(dbrow, )

Appellate Case: 13-1540

Document: 01019179611

Date Filed: 12/31/2013

Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

December 31, 2013
Elisabeth A. Shumaker
Clerk of Court

LITTLE SISTERS OF THE POOR
HOME FOR THE AGED, DENVER,
COLORADO, a Colorado non-profit
corporation, et al.,

No. 13-1540
(D.C. No. 1:13-CV-02611-WJM-BNB)
(D. Colo.)

Plaintiffs-Appellants,
v.
KATHLEEN SEBELIUS, Secretary of
the United States Department of Health
and Human Services, et al.,
Defendants-Appellees.

ORDER

Before KELLY and LUCERO, Circuit Judges.
Plaintiffs-Appellants seek an injunction pending appeal after the district court
denied their motion for a preliminary injunction. They seek to avoid, on religious
grounds, the provisions of the Patient Protection and Affordable Care Act and the
Health Care and Education Reconciliation Act that pertain to insurance coverage for
sterilization, contraceptives, and abortifacients. Those Acts require group health
insurance plans to cover certain preventative medical services without cost-sharing,
including contraception, sterilization, and related counseling, known as the Mandate.
Defendants-Appellees represent that (1) Plaintiffs Little Sisters of the Poor, who

Appellate Case: 13-1540

Document: 01019179611

Date Filed: 12/31/2013

Page: 2

provide health insurance for their employees through the Christian Brothers
Employee Benefit Trust, may opt out from the Mandate by completing a selfcertification form and providing it to the third-party administrator, Christian Brothers
Services, and (2) in addition, because the Trust is a self-insured “church plan”
exempt from ERISA, the third-party administrator, Christian Brothers Services,
would not be subject to fines or penalties. Therefore, there is no enforceable
obligation—through ERISA or otherwise—for any of the Plaintiffs to provide any of
the objectionable coverage.
A stay or injunction pending appeal is governed by the following factors:
(1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay
or injunction is not granted; (3) the absence of harm to opposing parties if the stay or
injunction is granted; and (4) any risk of harm to the public interest. Homans v. City
of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001); 10th Cir. R. 8.1. We make
the same inquiry as we would when reviewing a district court’s grant or denial of a
preliminary injunction. See McClendon v. City of Albuquerque, 100 F.3d 863, 868
n.1 (10th Cir. 1996) (citing Walker v. Lockhart, 678 F.2d 68, 70 (8th Cir. 1982)).
Thus, we must consider, based on a preliminary record, whether the district court
abused its discretion and whether the movants have demonstrated a clear and
unequivocal right to relief. Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061,
1065-66 (10th Cir. 2001). We have considered the district court’s decision and the
parties’ arguments concerning the above factors. Under the unique factual
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Appellate Case: 13-1540

Document: 01019179611

Date Filed: 12/31/2013

Page: 3

circumstances of this case, we conclude that an injunction pending appeal at this
stage is not warranted. Accordingly, we deny Plaintiffs-Appellants’ emergency
motion for an injunction pending appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

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