Gilardi v. U.S. Dep't of Health & Human Servs., No. 13-5069
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | BROWN |
| Parties | FRANCIS A. GILARDI, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES |
| Docket Number | No. 13-5069 |
| Decision Date | 01 November 2013 |
FRANCIS A. GILARDI, ET AL., APPELLANTS
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., APPELLEES
No. 13-5069
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2013
Decided November 1, 2013
Francis J. Manion, pro hac vice, argued the cause for appellants. With him on the briefs were Colby M. May and Carly F. Gammill.
Kimberlee Wood Colby was on the brief for amici curiae Association of Gospel Rescue Missions, et al., in support of appellants.
Deborah J. Dewart was on the brief for amicus curiae Liberty, Life, and Law Foundation in support of appellants.
Dwight G. Duncan was on the brief for amici curiae 28 Catholic Theologians, et al. in support of appellants.
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Lawrence J. Joseph was on the brief for amicus curiae Eagle Forum Education & Legal Defense Fund in support of appellants.
William Lee Saunders, Jr. was on the brief for amici curiae American Association of Pro-Life Obstetricians and Gynecologists, et al. in support of appellants.
Dorinda C. Bordlee was on the brief for amici curiae Abortion Breast Cancer Coalition, et al. in support of appellants.
Noel J. Francisco was on the brief for amicus curiae Archdiocese of Cincinnati in support of appellants.
Michael Dewine, Attorney General, Office of the Attorney General of the State of Ohio, and Jennifer L. Pratt, Assistant Attorney General, were on the brief for amcius curiae State of Ohio in support of appellants.
Michael F. Smith was on the brief for amicus curiae Life Legal Defense Foundation in support of appellants.
Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the briefs were Stuart F. Delery, Acting Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Attorneys.
Lisa S. Blatt, Robert J. Katerberg, Andrew S. Macurdy, and Julianna S. Gonen were on the brief for amici curiae Center for Reproductive Rights, et al. in support of appellees.
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Charles E. Davidow and Marcia D. Greenberger were on the brief for amici curiae American Association of University Women, et al. in support of appellees.
Ayesha N. Khan, Gregory M. Lipper, and Daniel Mach were on the brief for amici curiae Americans United for Separation of Church and State, et al. in support of appellees.
Michelle A. Kisloff was on the brief for amici curiae Ovarian Cancer National Alliance, et al. in support of appellees.
Martha Jane Perkins was on the brief for amici curiae National Health Law Program, et al. in support of appellees.
Jennifer C. Pizer, Camilla B. Taylor, and Thomas W. Ude, Jr. were on the brief for amicus curiae Lambda Legal Defense and Education Fund, Inc. in support of appellees.
Bruce H. Schneider was on the brief for amici curiae Physicians for Reproductive Health, et al. in support of appellees.
Before: BROWN, Circuit Judge, and EDWARDS and RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN, with whom Senior Circuit Judge EDWARDS joins except as to parts VI, VII, and VIII, and with whom Senior Circuit Judge RANDOLPH joins except as to parts III and IV.
Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge RANDOLPH.
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Opinion concurring in part and dissenting in part filed by Senior Circuit Judge EDWARDS.
BROWN, Circuit Judge. Two years after our decision Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), we are asked to revisit the behemoth known as the Affordable Care Act. This time, however, we are not confronted with a question of constitutional authority. Instead, we must determine whether the contraceptive mandate imposed by the Act trammels the right of free exercise—a right that lies at the core of our constitutional liberties—as protected by the Religious Freedom Restoration Act. We conclude it does.
Two brothers, Francis and Philip Gilardi, are equal owners of Freshway Foods and Freshway Logistics—both companies are closely-held corporations that have elected to be taxed under Subchapter S of the Internal Revenue Code. The two companies collectively employ about 400 employees and operate a self-insured health plan through a third-party administrator and stop-loss provider.
As adherents of the Catholic faith, the Gilardis oppose contraception, sterilization, and abortion. Accordingly, the two brothers—exercising their powers as owners and company executives—excluded coverage of products and services falling under these categories.
But along came the Affordable Care Act. Part of the Act directs all group health plans and health insurance issuers to provide, without cost-sharing requirements, preventive care as determined by the Health Resources and Services Administration. 42 U.S.C. § 300gg-13(a)(4). In turn, the Administration issued guidelines requiring coverage for "all
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Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity," as prescribed by a healthcare provider. Women's Preventive Services Guidelines, HEALTH RES. & SERVS. ADMIN., http://www.hrsa.gov/womensguidelines/; see Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection Affordable Care Act, 77 Fed. Reg. 8725, 8725-26 (Feb. 15, 2012) (citing the online HRSA Guidelines); see also 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. 147.131(c).1 There are exceptions—some ephemeral, some permanent—for grandfathered plans, religious organizations, and small businesses. See 26 U.S.C. § 4980H(a); id. § 4980H(c)(2)(A); 42 U.S.C. § 18011; 45 C.F.R. §§ 147.130(a)(1)(iv)(A)-(B). But the Freshway companies do not fall into any of these categories. As a result, the Gilardis were faced with two choices: adjust their companies' plans to provide the mandated contraceptive services in contravention of their religious beliefs, or pay a penalty amounting to over $14 million per year.2
Finding themselves on the horns of an impossible dilemma, the Gilardis and their companies filed suit in district court, alleging the contraceptive mandate violated their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., the Free Exercise Clause, the Free Speech Clause, and the Administrative Procedure Act. The plaintiffs moved for a preliminary injunction, but the district
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court denied their request. With respect to the Freshway companies, the court determined they could not "exercise" religion and thus no substantial burden on religious exercise was demonstrable under RFRA. As for the Gilardis, the court found any burden on the Gilardis' religious beliefs was indirect.
The plaintiffs timely filed an interlocutory appeal and moved for an injunction pending appeal. After having initially denied their motion, we issued, sua sponte, an order giving them a temporary reprieve from the mandate.
Our standard of review for a denial of a preliminary injunction rests upon what aspect of the district court's decision we are examining. Insofar as our review concerns the district court's consideration of the preliminary-injunction factors and the ultimate decision to grant or deny the injunction, we review for an abuse of discretion. See In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012). But we review the legal conclusions underlying the decision de novo and review findings of fact for clear error. Id.; Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
"In ruling on a preliminary injunction a key issue—often the dispositive one—is whether the movant has shown a substantial likelihood of success on the merits." Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep't of Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir. 2011). To determine this likelihood, we must answer whether the contraceptive mandate of 45 C.F.R. § 147.130(a)(1)(iv), as applied to the Appellants, violates their free-exercise rights as protected by RFRA. As the parties have made eminently
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clear, we must separately examine the claims by the Freshway companies and their owners.
We begin with the Freshway companies. Before addressing the merits of their RFRA claim, we must first ask whether they may bring the challenge at all. The statute allows "[a] person whose religious exercise has been burdened" to seek judicial relief, but leaves us bereft of guidance on who a "person" is. See 42 U.S.C. § 2000bb-1(c) (emphasis added).
For at least one of our sister circuits (as well as the Appellants), the Dictionary Act, 1 U.S.C. § 1, dispositively answers the question. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1129, 1132 (10th Cir. 2013) (en banc). Under the Act, the definition of "person" extends to "corporations, companies, associations, firms, partnerships, societies, and joint stock companies"—in other words, it encompasses the corporeal and the incorporeal. 1 U.S.C. § 1. The Freshway companies largely depend on the Dictionary Act's elision of the differences in identity,...
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