Case 5:14-cv-00240-R Document 83 Filed 12/03/14 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
THE CATHOLIC BENEFITS ) ASSOCIATION LCA, et. al., ) ) Plaintiffs, ) ) v. ) Civil Case No. 14-CV-00240-R ) SYLVIA M. BURWELL, et. al., ) ) Defendants. )
PLAINTIFFS’ UNCONTESTED MOTION FOR CLARIFICATION OF SCOPE OF PRELIMINARY INJUNCTION
Plaintiffs respectfully request that the Court clarify the scope of the preliminary injunction entered on June 4, 2014. In support of this request, plaintiffs state:
1. Defendants’ counsel have reviewed this motion and stated that defendants do not oppose the relief requested here.
2. On March 12, 2014, we filed our Motion for Preliminary Injunction and accompanying brief. In addition to requesting that defendants be enjoined from enforcing the CASC Mandate1 against plaintiffs and members of plaintiff The Catholic
Benefits Association LCA (“Association”), we also requested that defendants be enjoined from “[i]nterfering with plaintiffs’ relationships with their insurers or third party administrators and with plaintiffs’ attempts to arrange or contract for morally compliant
1 The “CASC Mandate” refers to regulations promulgated by defendants under 42 U.S.C. § 300gg-13(a)(4), which require that group health plans and health insurance issuers provide coverage without cost sharing for contraceptives, abortion-inducing drugs and devices, sterilization, and related counseling. We refer to these services as “CASC services.”
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health or stop-loss coverage or related services for their employees and members.” Mot. for Prelim. Inj. ¶ 8(c), ECF No. 4.
3. On June 4, 2014, the Court issued a preliminary injunction in favor of
Group II and Group III plaintiffs and members of the Association that became members on or before that date (collectively, “Members”). The Court, however, did not rule on, or even discuss, plaintiffs’ request that the Court also enjoin the government from enforcing the CASC Mandate against the Members’ insurers and third-party administrators.
4. Several insurers of Members have stated that, notwithstanding an injunction for the Members, those insurers must provide CASC services to the Members’ employees and dependents. These insurers have stated that the scope of the injunction is too narrow to relieve them from their obligation or perceived obligation to provide CASC coverage.
5. On August 1, 2014, defendants appealed the June 4 preliminary injunction to the United States Court of Appeals for the Tenth Circuit.
6. The defendants thereafter filed a motion with the Tenth Circuit requesting that it hold the appeal in abeyance pending resolution of other similar cases before that court. We responded, in part, by cross-motion asking the Tenth Circuit to issue an injunction pending appeal that would enjoin defendants from enforcing the CASC mandate against the Members’ insurers or third-party administrators.
7. In granting defendants’ motion for abeyance and denying our cross-motion, the Tenth Circuit noted that with regard to motions for injunction pending appeal, “[a] party must ordinarily move first in the district court for . . . an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.” Order at 3,
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Catholic Benefits Ass’n LCA v. Burwell, Nos. 14-6163, 14-6171 (10th Cir. Oct. 9, 2014)
(quoting Fed. R. App. P. 8(a)(1)(C)) (internal quotation marks omitted), attached as Ex.
1. The Tenth Circuit also noted that this Court “retains jurisdiction during an interlocutory appeal over ‘certain ministerial functions in aid of the appeal, such as . . . issuing stays or injunctions pending appeal.’” Id. (quoting Stewart v. Donges, 915 F.2d
572, 575 n.3 (10th Cir. 1990)).
8. Defendants’ counsel told us that, in defendants’ view, the June 4 preliminary injunction already prohibits defendants from interfering with plaintiffs’ relationships with their insurers and third-party administrators.
9. In a companion case to this, Catholic Benefits Ass’n LCA v. Burwell, No.
5:14-cv-00685-R (“CBA II”), this Court granted an unopposed motion that enjoined government enforcement of the CASC mandate not only against Association members joining the Association after July 1, but also against those members’ insurers and third- party administrators. See Order Granting Pls.’ Unopposed Mot. Regarding Procedural
Issues & Modification of TRO ¶ 4(c), Catholic Benefits Ass’n LCA v. Burwell, No. 5:14- cv-00685-R (W.D. Okla. Sept. 24, 2014), attached as Ex. 2.
WHEREFORE, plaintiffs respectfully ask this Court to issue an order clarifying the scope of the preliminary injunction. Specifically, plaintiffs request that the Court articulate that, in addition to other relief provided in the June 4 preliminary injunction, defendants are enjoined from enforcing the CASC Mandate against insurers or third-party administrators of the Members, from requiring insurers or third-party administrators of such Members to provide CASC services to the Members’ employees or health plan
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beneficiaries, and from interfering with the Members’ attempts to arrange or contract for morally compliant health or stop-loss coverage or related services for their employees.
Respectfully submitted,
s/ L. Martin Nussbaum
L. Martin Nussbaum (Colo. Bar #15370) Eric Kniffin (D.C. Bar #999473) Ian S. Speir (Colo. Bar #45777) LEWIS ROCA ROTHGERBER LLP 90 S. Cascade Ave., Suite 1100 Colorado Springs, CO 80920 o:719-386-3000; f:719-386-3070 [email protected] [email protected] [email protected] Admitted pro hac vice
J. Angela Ables (Okla. Bar #0112) Johnny R. Blassingame (Okla. Bar #21110) KERR, IRVINE, RHODES & ABLES, P.C. 201 Robert S. Kerr Ave., Suite 600 Oklahoma City, Oklahoma 73102 o:405-272-9221; f:405-236-3121 [email protected] [email protected]
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
On December 3, 2014, I electronically transmitted this document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to all ECF registrants.
L. Martin Nussbaum L. Martin Nussbaum
4 CaseCase 5:14-cv-00240-R 5:14-cv-00240-R Document Document 83-1 82 Filed Filed 10/09/14 12/03/14 Page Page 1 1 of of 4 4 Appellate Case: 14-6163 Document: 01019323524 Date Filed: 10/09/2014 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 9, 2014
Elisabeth A. Shumaker Clerk of Court CATHOLIC BENEFITS ASSOCIATION LCA; CATHOLIC INSURANCE COMPANY; ROMAN CATHOLIC ARCHDIOCESE OF OKLAHOMA CITY; CATHOLIC CHARITIES OF THE ARCHDIOCESE OF OKLAHOMA CITY, INC.; ALL SAINTS CATHOLIC SCHOOL, INC.; WILLIAM E. LORI, Archbishop Roman Catholic Archdiocese of Baltimore and His Successors in Office; CATHEDRAL FOUNDATION, INC., d/b/a Catholic Review Media; VILLA ST. FRANCIS CATHOLIC CARE CENTER, INC.; GOOD WILL PUBLISHERS, INC.,
Plaintiffs - Appellees/ Cross-Appellants,
v. Nos. 14-6163 & 14-6171 (D.C. No. 5:14-CV-00240-R) SYLVIA M. BURWELL, Secretary of (W.D. Okla.) the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants - Appellants/ Cross-Appellees.
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ORDER
Before MATHESON and PHILLIPS, Circuit Judges.
The government defendants have filed a motion to hold this case in abeyance
pending our resolution of three appeals that present substantially the same legal
questions as those presented in this appeal. Those appeals are No. 13-1540, Little
Sisters of the Poor Home for the Aged v. Burwell; No. 14-6026, Southern Nazarene
University v. Burwell; and No. 14-6028, Reaching Souls International, Inc. v.
Burwell, and they are scheduled for oral argument during the week of December 8,
2014. Plaintiffs filed a combined response to the motion to abate and a motion for an
injunction pending appeal.
We agree with the government defendants that plaintiffs have not presented a
relevant basis to oppose the motion to abate. The plaintiffs’ separate concern that
they did not receive all of the injunctive relief to which they believe they were
entitled when the district court granted their motion for a preliminary injunction is
not an appropriate ground to deny the motion to abate.
As the government notes, we have already held in abeyance two other appeals
in cases like this one where non-profit employers with religious objections challenge
the regulations at issue here. See No. 14-1233, Dobson v. Burwell (Order, July 7,
2014); No. 14-8040, Diocese of Cheyenne v. Burwell (Order, July 30, 2014).
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Moreover, the “Plaintiffs agree in principle with the [government defendants] that, in
light of the appeals pending before this Court . . . that present a substantially similar
issue . . . , it is judicially efficient to delay presentation of briefs in this case at this
time.” Combined Resp. & Mot. for Inj. at 15. Accordingly, we grant the government
defendants’ motion to hold this appeal in abeyance.
As for plaintiffs’ motion for an injunction pending appeal, “[a] party must
ordinarily move first in the district court for . . . an order suspending, modifying,
restoring, or granting an injunction while an appeal is pending.” Fed. R. App. P.
8(a)(1)(C). Plaintiffs seek an order to modify an existing injunction or grant a
separate injunction while their appeal is pending, but they have not sought relief from
the district court in the first instance. They contend that doing so is impracticable,
see id. 8(a)(2)(A)(i), arguing that the district court does not have jurisdiction to grant
them the requested relief. We disagree.
As noted above, Rule 8(a)(1)(C) specifically permits a request to the district
court to provide the type of relief that plaintiffs seek. And we have explained that
the district court retains jurisdiction during an interlocutory appeal over “certain
ministerial functions in aid of the appeal, such as . . . issuing stays or injunctions
pending appeal.” Stewart v. Donges, 915 F.2d 572, 575 n.3 (10th Cir. 1990) (internal
quotation marks omitted). Accordingly, we deny plaintiffs’ motion for an injunction
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pending appeal because they must move first in the district court for the relief that
they seek.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
) THE CATHOLIC BENEFITS ) ASSOCIATION LCA; THE ) CATHOLIC INSURANCE COMPANY ) ) Plaintiffs, ) ) v. ) Civil Case No. 5:14-cv-00685-R ) SYLVIA M. BURWELL, Secretary of ) the United States Department of Health ) and Human Services; UNITED STATES ) DEPARTMENT OF HEALTH AND ) HUMAN SERVICES; THOMAS E. ) PEREZ, Secretary of the United States ) Department of Labor; UNITED ) STATES DEPARTMENT OF LABOR; ) JACOB J. LEW, Secretary of the United ) States Department of the Treasury; ) UNITED STATES DEPARTMENT OF ) THE TREASURY ) ) Defendants. ) ) ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION REGARDING PROCEDURAL ISSUES AND MODIFICATION OF TEMPORARY RESTRAINING ORDER
Plaintiffs’ Unopposed Motion Regarding Procedural Issues and Modification of
Temporary Restraining Order is granted as follows:
1. Plaintiffs motion to convert the Court’s July 1 temporary restraining order to a
permanent restraining order is deemed withdrawn without prejudice. Defendants
need not respond to plaintiffs’ motion to convert.
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2. Plaintiffs shall file a first amended complaint no later than October 2.
3. Plaintiffs shall file a motion for preliminary injunction no later than October 2.
Defendants shall file their response within 21 days in accordance with LCvR
7.1(g). Plaintiffs shall file a reply 10 days later. Plaintiffs’ reply may be the larger
of 10 pages or one-half the length of the government’s response. The Court will
then determine if an oral argument is necessary.
4. The Court ORDERS that Defendants, their agents, officers, and employees, and all
others in active concert or participation with them, are temporarily restrained
from:
a. Enforcing the CASC Mandate against Plaintiffs and the CBA’s members
that join the CBA any time after July 1, 2014 and on or before this Court’s
ruling on the motion for preliminary injunction so long as those members
meet the same criteria for CBA membership as those protected by this
Court’s July 1 temporary restraining order (“Post-July 1 CBA Members”);
b. Charging or assessing taxes, penalties, or other burdens against the Post-
July 1 CBA Members for failure to pay for, provide, or directly or
indirectly facilitate access to CASC services; and
c. Enforcing any mandate for insurers or third party administrators to provide
CASC services to Post-July 1 CBA Members’ employees or health plan
beneficiaries or otherwise interfering with the Post-July 1 CBA Members’
relationships with their insurers or third party administrators and with these
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members’ attempts to arrange or contract for morally compliant health or
stop-loss coverage or related services for their employees and members.
Paragraph 4 of this order extends only until this Court rules on the motion for
preliminary injunction and will thereafter be replaced by that ruling.
The government has waived no arguments because of this order or because their
cooperation with this orderly process for addressing issues in this case. This Court issues
this order based on all the circumstances of the case. Any differences between paragraph
4 of this order and the Court’s July 1, 2014 temporary restraining order should not be construed as an expression of the Court’s views with regard to those changes.
Dated this 24th day of September 2014.
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