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Wednesday, January 30, 2013

Ind. Decisions - 7th Circuit 2-1 panel reverses Judge Barker in Grote and consolidates Grote with Korte

Updating this ILB entry from Dec. 29, 2012 and this one from Jan. 2, 2013, the 7th Circuit has just posted in typescript this Order in Grote v. Sebelius.

From the 19-page, 2-1 opinion (Flaum and Sykes in majority, Rovner in dissent):

Members of the Grote Family and their company, Grote Industries, appeal the district court’s order denying their motion for a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations that require Grote Industries to provide coverage for contraception and sterilization procedures in its group health‐insurance plan. They have moved for an injunction pending appeal. See FED. R. APP. P. 8. We recently granted such an injunction in a similar case. See Korte v. Sebelius, No. 12‐3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012). As explained below, this case is materially indistinguishable. Accordingly, we consolidate this case with Korte and likewise grant the motion here. * * *

IT IS ORDERED that the motion for an injunction pending appeal is GRANTED. The defendants are enjoined pending resolution of this appeal from enforcing the contraception mandate against the Grote Family and Grote Industries.

IT IS FURTHER ORDERED that this case is consolidated with Korte. Oral argument will be scheduled by separate order when briefing has been completed.

ROVNER, Circuit Judge, dissenting. [beginning on p. 6 of 19] * * * Despite the differences between the two appeals, I am no more persuaded that preliminary injunctive relief is warranted in Grote than I was in Korte. Specifically, the appellants have not, in my view, shown that they are reasonably likely to prevail on the merits of their claims. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547‐48 (7th Cir. 2007). With the benefit of the memoranda submitted by the parties in Grote and additional time to contemplate some of the issues presented by these appeals, I write separately here to expand on the doubts I expressed in Korte.

Posted by Marcia Oddi on January 30, 2013 07:51 PM
Posted to Ind. (7th Cir.) Decisions