Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 1 of 6 PageID #:435 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

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1 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 1 of 6 PageID #:435 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS CHRISTOPHER YEP, MARY ANNE YEP, AND TRIUNE HEALTH GROUP, LTD., an Illinois corporation, Case No. 1:12-cv Plaintiffs, v. KATHLEEN SEBELIUS, et al. Defendants. DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER Plaintiffs Triune Health Group, Inc. ( Triune and its owners, Christopher and Mary Anne Yep, now move for so-called emergency relief, seeking a temporary restraining order ten days before the preventive services coverage regulations will apply to Triune s employee health plan. The Court should deny plaintiffs motion. Putting aside momentarily plaintiffs inability to show likelihood of success on the merits, plaintiffs cannot possibly be entitled to a temporary restraining order given their consistent and inexcusable delay in prosecuting their challenge to the regulations at issue in this case. Although the challenged regulations were issued in August 2011, plaintiffs did not file their initial Complaint until August 22, 2012 over a year later. Further, even after this one-year delay, plaintiffs did not move for preliminary injunctive relief. Instead, plaintiffs elected to file an Amended Complaint, on October 22, 2012, dropping the state plaintiffs from their action before defendants had an opportunity to respond to the initial Complaint. But even then, plaintiffs did not move for a preliminary injunction. It was not until after defendants moved to dismiss plaintiffs Amended Complaint that plaintiffs even indicated at the November 14, 2012 status hearing that they intended to file a motion for a preliminary injunction. Yet, instead of

2 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 2 of 6 PageID #:436 filing a motion for a preliminary injunction immediately, as would have been prudent, plaintiffs waited until their response to defendants motion to dismiss was due on November 28, 2012 to move for preliminary injunctive relief. 1 And only yesterday, on December 21, 2012, did plaintiffs move for a temporary restraining order. This pattern of delay is completely at odds with any claim by plaintiffs that they are now entitled to the extraordinary equitable relief of a temporary restraining order. See Ty, Inc. v. Jones Grp., 237 F.3d 891, 903 (7th Cir. 2001; see also cf. Independent Bankers Ass n v. Heimann, 627 F.2d 486, 488 (D.C. Cir ( The venerable maxim vigilantibus non dormientibus aequitas subvenit (equity aids the vigilant, not those who slumber on their rights requires that a suit in equity... be dismissed if two requirements are met: (1 unreasonable delay in bringing the claim for relief and (2 prejudice caused by the delay.. Any emergency now is entirely of plaintiffs own creation. Moreover, with respect to plaintiffs claims of irreparable harm, plaintiffs argue that, absent a temporary restraining order, they will be locked into an entire year of forced participation in the provision of drugs to which they find immoral and sinful, Pls. Mot. at 2. This claim is extraordinary, however, given plaintiffs repeated admissions that Triune would be unable to secure a health plan that does not cover all FDA-approved contraceptive services, even in the absence of the challenged regulations, because of existing Illinois law. See Am. Compl. 39, 49, ECF No. 21; Yeps Decl. 72, ECF No. 36-3; see also 215 Ill. Comp. Stat. 5/356z.4. Although plaintiffs suggest that they are challenging the relevant Illinois law concurrently in state court, Pls. Mem. of Law in Supp. of Mot. for Prelim. Inj. & in Opp n to Defs Mot. to Dismiss 10, ECF No. 37, plaintiffs have made no representations that a decision in that wholly separate action could possibly be obtained before January 1, 2013, the date on which the challenged regulations will be effective as applied to Triune. At best, plaintiffs assert that they 1 Plaintiffs suggest that the Court has somehow erred by failing to schedule oral argument on their motion for a preliminary injunction. See Pls. Mot. for Temp. Restraining Order at 2 ( Pls. Mot., ECF No. 41. This suggestion is peculiar given that plaintiffs made no objection at the November 14, 2012 status hearing when the Court set the hearing on defendants motion to dismiss for February 14, Indeed, at the status hearing, plaintiffs provided no indication whatsoever that plaintiffs sought relief before January 1,

3 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 3 of 6 PageID #:437 may have the option to relocate Triune to a state which [sic] does not have a state contraception mandate. Pls Response in Supp. of Pls. Mot. for Prelim. Inj. 3, ECF No. 40. But [s]uch some day intentions are insufficient to confer standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992, much less are they sufficient to meet plaintiffs heavy burden to justify a temporary restraining order. For these reasons in addition to making plaintiffs claims nonjusticiable, see Defs. Mem. in Supp. of Mot. to Dismiss (Defs. Mem , ECF No. 24-1; Defs. Reply in Supp. of Mot. to Dismiss and Opp n to Pls. Mot. for Prelim. Inj. ( Defs. Reply & Opp n 4-5, ECF No. 39 plaintiffs cannot show imminent, irreparable harm in the absence of a temporary restraining order. Indeed, based on the allegations in plaintiffs Amended Complaint, plaintiffs have apparently provided coverage for services to which they object for quite some time, see Am. Compl , but it is only now after considerable and unexplained delay that plaintiffs object to providing such coverage. Turning to the merits, plaintiffs claims of likelihood of success are undermined by the recent, reasoned decision by the United States Court of Appeals for the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, No , Order (10th Cir. Dec. 20, 2012, application for injunction pending appellate review docketed, No. 12A644 (Dec. 21, There, in an analogous motion to enjoin pending appeal the preventive services coverage regulations, the court found that a secular, for-profit corporation and its owners did not establish a likelihood of success on their claim under the Religious Freedom Restoration Act ( RFRA. Id. at 2. The plaintiffs alleged, as do the plaintiffs in this case, that complying with the regulations would violate their religious beliefs because the regulations require them to facilitate access to services to which the corporation s owners object. Id. 2 By contrast, the Eighth Circuit s order granting a stay pending appeal in O Brien v. U.S. Dep t of Health & Human Servs., No , Order (8th Cir. Nov. 28, 2012, provided no reasoning whatsoever to support its conclusions. Motions panel decisions issued without explanations, like the one in O Brien, are hardly persuasive authority. See, e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1046 (9th Cir (noting Supreme Court vacated an injunction because the motions panel gave no reasons for its action. 3

4 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 4 of 6 PageID #:438 In denying the plaintiffs motion, the Tenth Circuit agreed with the district court that the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients... subsidize someone else s participation in an activity that is condemned by plaintiff[s ] religion. Order at 7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla The court concluded that there was not a substantial likelihood that it would find such a burden to be substantial, as to do so would extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship. Id. Moreover, the court held that this was so as to both the corporate plaintiffs and the individual owner plaintiffs, finding that their common failure to demonstrate a substantial likelihood of success on the RFRA prima facie case suffices to dispose of the motion. Id. at 6 n.4. The Tenth Circuit s decision illustrates, contrary to plaintiffs assertions, that plaintiffs are unlikely to succeed on the merits of their claims. See also Defs. Mem. at 15-42; Defs. Reply & Opp n at For these reasons, and for the reasons stated in defendants motion to dismiss and opposition to plaintiffs motion for a preliminary injunction, which defendants incorporate by reference here, plaintiffs motion for a temporary restraining order should be denied. Respectfully submitted this 22nd day of December, 2012, STUART F. DELERY Principal Deputy Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General GARY SHAPIRO United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS (VA Bar. No

5 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 5 of 6 PageID #:439 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C Tel: ( ; Fax: ( bradley.p.humphreys@usdoj.gov Attorneys for Defendants 5

6 Case: 1:12-cv Document #: 43 Filed: 12/22/12 Page 6 of 6 PageID #:440 CERTIFICATE OF SERVICE I hereby certify that on December 22, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties. /s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS