Dordt College et al v. Sebelius et al
Filing
46
ORDER granting 44 Motion for Preliminary Injunction. See text of order for details. Signed by Judge Mark W Bennett on 5/21/14. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DORDT COLLEGE and
CORNERSTONE UNIVERSITY,
No. C 13-4100-MWB
Plaintiffs,
vs.
KATHLEEN SEBELIUS, in her official
capacity as Secretary, United States
Department of Health and Human
Services, et al.,
ORDER REGARDING PLAINTIFFS’
MOTION FOR A PRELIMINARY
INJUNCTION
Defendants.
___________________________
This case is before me on Plaintiffs Dordt College’s (Dordt’s) and Cornerstone
University’s (Cornerstone’s) motion for a preliminary injunction, filed on May 6, 2014
(docket no. 44).
In their motion, Plaintiffs ask that I enjoin enforcement of “the
Mandate”—the provision of the Patient Protection and Affordable Care Act of 2010
(ACA) requiring that group health plans and health insurance issuers provide coverage,
without cost sharing, for certain female contraceptives.
See 42 U.S.C. § 300gg–
13(a)(4).1 Plaintiffs are religiously oriented colleges that must offer their employees
1
Regulations implementing the Mandate provide that certain types of contraceptives—
like Plan B and Ella, which Plaintiffs deem religiously objectionable—must be covered:
The Health Resources and Services Administration has
issued guidelines requiring coverage for “[a]ll Food and
Drug Administration approved contraceptive methods,
sterilization procedures, and patient education and
counseling for all women with reproductive capacity.”
(Footnote continued . . .
ACA-compliant health insurance, or face severe penalties. Plaintiffs claim that the
Mandate violates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§
2000bb to 2000bb–4. Defendants2 resist Plaintiffs’ motion (docket no. 45). For the
reasons discussed below, Plaintiffs’ motion is granted.
Women’s Preventive Services: Required Health Plan
Coverage Guidelines, Health Resources and Services
Administration,
http://www.hrsa.gov/womensguidelines/
(last visited Dec. 31, 2012). The FDA has approved several
contraceptive methods, including Plan B, Ella, and copper
intrauterine devices (IUDs). Birth Control Guide, FDA
Office
of
Women’s
Health,
www.
fda.gov/downloads/ForConsumers/ByAudience/ForWomen/
FreePublications/UCM282014.pdf.
The government issued a regulation (contraceptive mandate)
that adopted the Health Resources and Service
Administration guidelines as final. 77 Fed.Reg. 8725. Group
health plans and health insurance issuers are required to
provide coverage consistent with the guidelines, without cost
sharing, in plan or policy years beginning on or after August
1, 2012. Id. at 8725–26.
Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12 CV 92
DDN, 2013 WL 6858588, at *1 (E.D. Mo. Dec. 30, 2013) (footnote omitted).
2
I recognize that defendant Kathleen Sebelius has resigned as Secretary of the
Department of Health and Human Services. Her successor, however, has not yet been
confirmed. When the next Secretary is confirmed, I will substitute the successor as a
defendant per Federal Rule of Civil Procedure 25(d), which provides:
An action does not abate when a public officer who is a
party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.
Later proceedings should be in the substituted party’s name,
but any misnomer not affecting the parties’ substantial rights
(Footnote continued . . .
2
“RFRA . . . provides that the Government cannot impose a law that substantially
burdens a person’s free exercise of religion unless the Government demonstrates that
the law (1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest.”
Harrell v.
Donahue, 638 F.3d 975, 983 (8th Cir. 2011) (quoting 42 U.S.C. § 2000bb–1(b)(1)–(2))
(internal quotation marks omitted).
Plaintiffs argue that the Mandate substantially
burdens their free exercise of religion by requiring Plaintiffs to offer insurance that
facilitates access to contraceptives that Plaintiffs deem religiously objectionable.
Plaintiffs also argue that the Mandate is not the least-restrictive means to advance any
compelling governmental interest. Thus, Plaintiffs request that I enjoin enforcement of
the Mandate as it applies to their employee health-insurance plans.
In support of their claims, Plaintiffs rely on their verified complaint and 26
employee declarations. I may grant a preliminary injunction based on such evidence.
See Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878, 880 (8th Cir. 2007) (affirming a
preliminary injunction based on a verified complaint and additional documents); Movie
Sys., Inc. v. MAD Minneapolis Audio Distributors, 717 F.2d 427, 432 (8th Cir. 1983)
(holding that courts may rely solely on affidavits in granting preliminary injunctions);
see also K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir. 1972) (“A
verified complaint or supporting affidavits may afford the basis for a preliminary
injunction[.]” (citations omitted)).
Plaintiffs filed their motion for a preliminary injunction while their underlying
suit challenging the Mandate is currently pending before me. In a recent order (docket
must be disregarded. The court may order substitution at
any time, but the absence of such an order does not affect
the substitution.
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no. 43), I informed the parties that I would wait to resolve the Plaintiffs’ underlying
claims until after the United States Supreme Court decided Sebelius v. Hobby Lobby
Stores, Inc., No. 13-354, and Conestoga Wood Specialties Corp. v. Sebelius, No. 13356, because those decisions will likely impact, and may even resolve, part of this case.
But, according to Plaintiffs, the Mandate will take effect against Dordt starting on June
1, 2014—before the Supreme Court will likely decide Hobby Lobby and Conestoga
Wood. Thus, Plaintiffs ask that I enjoin enforcement of the Mandate until I rule on the
merits of their underlying claims, which I expect to do shortly after the Supreme Court
decides Hobby Lobby and Conestoga Wood. While Plaintiffs’ underlying complaint
comprises multiple claims, Plaintiffs rely solely on their RFRA claim in requesting a
preliminary injunction.
In deciding whether to grant a preliminary injunction, I apply
the four factors set forth in Dataphase Systems, Inc. v. CL
Systems, Inc., 640 F.2d 109 (8th Cir. 1981). The Dataphase
factors are “(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that
granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits;
and (4) the public interest.” Id. at 114.
Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013). Generally, the
moving party need not “prove a greater than fifty per cent likelihood that [it] will
prevail on the merits.” Dataphase, 640 F.2d at 113. Rather, the movant need only
show a “fair chance” of prevailing. Heartland Acad. Cmty. Church v. Waddle, 335
F.3d 684, 690 (8th Cir. 2003). Ultimately, “the question is whether the balance of
equities so favors the movant that justice requires the court to intervene to preserve the
status quo until the merits are determined.” Dataphase, 640 F.2d at 113 (footnote
omitted). Each case
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must be examined in the context of the relative injuries to
the parties and the public. If the chance of irreparable injury
to the movant should relief be denied is outweighed by the
likely injury to other parties litigant should the injunction be
granted, the moving party faces a heavy burden of
demonstrating that he is likely to prevail on the merits.
Conversely, where the movant has raised a substantial
question and the equities are otherwise strongly in his favor,
the showing of success on the merits can be less.
Id. Thus, “where the balance of other factors [besides probability of success] tips
decidedly toward plaintiff a preliminary injunction may issue if movant has raised
questions so serious and difficult as to call for more deliberate investigation.” Id.
I recognize that “where a preliminary injunction of a duly enacted . . . statute is
sought, [courts] require a more rigorous threshold showing that the movant is likely to
prevail on the merits.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d
724, 730 (8th Cir. 2008) (en banc); see also Johnson v. Minneapolis Park & Recreation
Bd., 729 F.3d 1094, 1098 (8th Cir. 2013) (noting that this “more rigorous threshold”
applies to injunctions of federal statutes). “[A] party seeking a preliminary injunction
of the implementation of a . . . statute must demonstrate more than just a ‘fair chance’
that it will succeed on the merits.” Planned Parenthood, 530 F.3d at 731-32. “We
characterize this more rigorous standard . . . as requiring a showing that the movant ‘is
likely to prevail on the merits.’”
Id. at 732 (citations omitted).
This heightened
standard for enjoining a statute “reflects the idea that governmental policies
implemented through legislation or regulations developed through presumptively
reasoned democratic processes are entitled to a higher degree of deference and should
not be enjoined lightly.” Id. (citation and internal quotation marks omitted).
But this case is somewhat unique in that both parties claim fidelity to
democratically enacted statutes. Plaintiffs seek to enforce RFRA whereas Defendants
seek to enforce ACA.
Whether I grant or deny injunctive relief, I risk wrongly
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effectuating one statute at the expense of the other. Presumably, I must be equally
deferential to both statutes. Because both parties ask that I enforce a duly enacted
statute, Planned Parenthood’s “more rigorous threshold” applies with less force to this
case. But, as I note below, even if it applies with full force, the Eighth Circuit Court
of Appeals has already twice concluded that plaintiffs similarly situated to Dordt and
Cornerstone are likely to succeed on the merits of their cases challenging the Mandate.
Applying the Dataphase factors, I find that granting Plaintiffs preliminary
injunctive relief is appropriate. First, Plaintiffs may suffer irreparable harm without an
injunction in that they would be forced to comply with the Mandate to the detriment of
their religious exercise.
Even if I were to later grant Plaintiffs relief on their
underlying claims, that would not remedy the harm caused by forcing the Plaintiffs to
do something they deem religiously objectionable. Second, the balance of the equities
favors granting a preliminary injunction. The only harm Defendants may suffer if I
grant a preliminary injunction is that the Mandate may apply to Plaintiffs a few months
later than expected. Third, Plaintiffs have shown that they are sufficiently likely to
succeed on the merits. I base this finding on the fact that the Eighth Circuit Court of
Appeals has twice granted injunctions pending appeal to similarly situated plaintiffs
challenging the Mandate under RFRA.3 See Order, O’Brien v. U.S. Dep’t of Health &
3
Defendants argue that these prior injunctions are inapposite because they involved
differently situated, for-profit companies, rather than institutions like Dordt and
Cornerstone that are eligible for religious accommodations related to the Mandate.
Defendants’ argument seems to be that, because accommodations are available to Dordt
and Cornerstone, the Mandate does not apply to them with the same force as it would
to for-profit companies and, therefore, the reasons supporting injunctions to for-profit
companies do not apply here. But, in Annex Medical, Inc. v. Sebelius, No. 13-1118,
2013 WL 1276025, at *1, 3 (8th Cir. Feb. 1, 2013), the Eighth Circuit Court of
Appeals granted an injunction in favor of a plaintiff corporation to which the Mandate
(Footnote continued . . .
6
Human Servs., No. 12–3357 (8th Cir. Nov. 28, 2012) (granting similar plaintiffs an
injunction pending appeal); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL
1276025, at *3 (8th Cir. Feb. 1, 2013) (noting that “the O’Brien panel necessarily
concluded that the [similar plaintiffs] satisfied the prerequisites for an injunction
pending appeal, including a sufficient likelihood of success on the merits and
irreparable harm”); see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human
Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489, at *6 (E.D. Mo. Dec. 31, 2012)
(finding that similar plaintiffs demonstrated a reasonable likelihood of success). And
“there is a significant interest in uniform treatment of comparable requests for interim
relief within this circuit.” Annex Med., 2013 WL 1276025, at *3. Finally, there is no
evidence here that the public interest strongly favors either side. Weighed together,
these factors support Plaintiffs’ request for a preliminary injunction.
The only remaining issue is bond.
“The court may issue a preliminary
injunction or a temporary restraining order only if the movant gives security in an
amount that the court considers proper to pay the costs and damages sustained by any
party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).
“The amount of the bond rests within the sound discretion of the trial court and will not
be disturbed on appeal in the absence of an abuse of that discretion.” Stockslager v.
does not even apply. The plaintiff in Annex Medical had fewer than 50 employees and,
thus, was not required to provide ACA-compliant insurance to employees. Id. at *1
(citing 26 U.S.C. § 4980H(c)(2)(A)). The plaintiff’s owner, however, claimed that it
was his religious duty to provide insurance even though ACA did not require it. Id.
On these facts, the Eighth Circuit Court of Appeals enjoined enforcement of the
Mandate against the plaintiff. Id. at *3. The Mandate applied to the plaintiff in Annex
Medical with even less force than it applies to Dordt or Cornerstone, yet the plaintiff in
Annex Medical still received injunctive relief. Rather than being inapposite, this weighs
in favor of granting injunctive relief here.
7
Carroll Elec. Co-op. Corp., 528 F.2d 949, 951 (8th Cir. 1976) (citation omitted).
There is no risk of monetary loss to Defendants here; the only arguable harm is that the
Mandate might apply to the Plaintiffs a few months later than expected.
Plaintiffs need not submit security in this case.
Thus,
See Sharpe Holdings, 2012 WL
6738489, at *7 (temporarily restraining enforcement of the Mandate without requiring
the plaintiffs to submit bond).
THEREFORE, I ORDER THE FOLLOWING:
(1) The Plaintiffs’ motion for a preliminary injunction (docket no. 44) is granted.
(2) Defendants are enjoined, pending resolution of Plaintiffs’ underlying claims,
from enforcing the Mandate of 42 U.S.C. § 300gg–13(a)(4) and its implementing
regulations against Dordt, Cornerstone, and any insurance provider (including
insurance issuers and third-party administrators) offering health insurance to
Dordt or Cornerstone. This injunction shall apply only with regard to health
insurance offered to Dordt and Cornerstone employees.
Plaintiffs need not
submit bond.
IT IS SO ORDERED.
DATED this 21st day of May, 2014.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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