Armstrong v. Sebelius, No. 13-1218 (10th Cir. 2013)
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT W.L. (BILL) ARMSTRONG; JEFFREY S. MAY; WILLIAM L. (WIL) ARMSTRONG, III; JOHN A. MAY; DOROTHY A. SHANAHAN; CHERRY CREEK MORTGAGE CO., INC., a Colorado corporation, September 5, 2013 Elisabeth A. Shumaker Clerk of Court Plaintiffs-Appellants, 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 the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Defendants-Appellees. ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PROLIFE OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; No. 13-1218 (D.C. No. 1:13-CV-00563-RBJ) (D. Colo.) PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES, Amici Curiae. ORDER AND JUDGMENT* Before BRISCOE, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges. Cherry Creek Mortgage Co., Inc. (Cherry Creek) and its owners, managers and voting shareholders filed an interlocutory appeal from the district court s denial of their request for a preliminary injunction to enjoin enforcement of the preventive services coverage mandate of the Patient Protection and Affordable Care Act and its related regulations. The district court denied the request after concluding that plaintiffs were not likely to succeed on the merits of their underlying complaint, which alleged that this portion of the Act violated their rights under the Religious Freedom Restoration Act (RFRA) and the First Amendment. The district court did not address the other preliminary injunction factors. * This panel has determined that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. -2- Defendants and plaintiffs now jointly move this court to summarily reverse the denial order and remand to the district court to consider the remaining preliminary injunction factors in light of our recent en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, __ F.3d __, 2013 WL 3216103 (10th Cir. June 27, 2013). Upon consideration, we agree that plaintiff Cherry Creek has established a substantial likelihood of success on the merits of its RFRA claim, and that the district court erred in concluding otherwise. Consequently, we grant the motion for remand, vacate the district court s order, and remand for further proceedings consistent with the Hobby Lobby decision. We deny as moot plaintiffs request for a motion for injunction pending appeal. Entered for the Court Per Curiam -3-
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